Reports and opinions of the Attorney-General of Georgia from May 1, 1922, to June 15, 1923

REPORTS AND OPINIONS
.
OF THE
ATTORNEY-GENERAL
OF
GEORGIA
FROM MAY I, 1922, TO JUNE 15, 1923
GEO. M. NAPIER
Attorney-General
SEWARD M. SMITH
Assistant Attorney-General
T. R. GRESS
Secretary

ATTORNEY-GENERALS

1868-1872 __________________________________________________Henry P. Farrar.

1872-1877 _________________________________________________N. J. Hammond.

1877-1880 ________________ .. ______________________________Robert N. Ely.

1880-1890 --------------- ________________________Clifford Anderson.

1890-1891 __ ---------------------- ___________________George N. Lester.
1891-1892 ________________________________________w. A. Little.
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 25, 1923. Honorable Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor :-The following report of the work in this office is submitted in accordance with the law, and your attention is respectfully invited thereto.
An increasing range of business, taking us into virtually all of the courts, keeps every one in the office continually busy. We do our utmost to keep fairly well up with the current volume of business submitted to us. In addition to the usual duties of this office, the Attorney-General is a member of the Workmen's Compensation Board, and of the Securities Commission. Business before each of these tribunals is increasing steadily.
In order to reduce the size of this report and to reduce expenses, the numerous opinions non-officially rendered are omitted.
The Assistant Attorney-General, Hon. Seward M. Smith, and our Secretary, Hon. T. R. Gress, have rendered faithful and highly efficient services in this Department, and my thanks are accorded them.
Permit me to acknowledge the unifo'rm courtesies which Your Excellency has accorded to us, and to say that our relations with the entire Executive Department have been cordial at all times.
With assurances of high esteem and best wishes, Respectfully and sincerely yours, GEO. M. NAPIER, Attorney-General.
3

CASES DISPOSED OF IN UNITED STATES SUPREME COURT.
Criminal: Joe Bonner vs. J. C. Middlebrooks, Sheriff. Murder; from Jones County, Ga. Affirmed. Jim Denson vs. the State. Rape; from Wilkinson County, Ga. Affirmed.
CASES PENDING IN THE UNITED STATES SUPREME COURT.
State of Georgia vs. Tennessee Cooperage Company and Ducktown Copper and Iron Company, Ltd. State of Georgia vs. The City of Chattanooga, Tennessee. McGregor vs. Warren County. Bennett vs. Schwarz et al.
CASES DISPOSED OF IN THE SUPREME COURT OF GEORGIA.
W. L. Taylor vs. the State; Murder; Coffee County, Georgia.
McDonald vs. the State; Murder; Fulton County, Georgia.
Kennemer vs. the State; Murder; Walker County, Georgia.
Johnson vs. the State; Murder; Emanuel County, Georgia.
William O'Berry vs. the State; Murder; Aplling County, Georgia. 4

G. M. Hudson vs. the State; Murder; Dougherty County, Georgia.
Will Collier vs. the State; Murder; Lamar County, Georgia.
James Brantley vs. the State; Murder; Lamar County, Georgia.
J. H. Jones vs. the State; Murder; Fulton County, Georgia.
W. R. Stiles vs. the State; Murder; Chattanooga County, Georgia.
Robert Mathews vs. the State; Murder; Fulton County, Georgia.
L. H. Coart vs. the State; Murder; Talbot County, Georgia.
M. C. Mitchell vs. the State; Murder; Bibb County, Georgia.
Ralph Baker vs. the State; Walker County, Georgia. Murder.
George Baker vs. the State; Murder; Walker County, Georgia.
Will Farmer vs. the State; Murder; Chatooga County, Georgia.
Luther Booker vs. the State; Murder; Bibb County, Georgia.
Davis vs.. the State; Murder; Treutlen County, Georgia.
Rozier vs. the State; Murder; Coffee County, Georgia.
Allen vs. the State; Rape; Haralson County, Georgia.
Curry vs. the State; Murder; Toombs County, Georgia.
Williams vs. the State; Murder; Laurens County, Georgia.
Walker vs. the State; Murder; Spalding County, Georgia.
5

Fairfield vs. the State; Burning Railroad Bridges; Crisp County, Georgia.
Cummings vs. the State; Murder; Baldwin County, Georgia.
Johnson vs. the State; Murder.
Gore vs. the State; Murder; Heard County, Georgia.
Chance vs. the State; Murder; Bullock County, Georgia.
Reece vs. the State; Murder; Cherokee County, Georgia.
Whitworth vs the State; Murder; Hall County, Georgia.
Harris vs. the State; Rape; Floyd County, Georgia.
West vs. the State; Murder; Dooly County, Georgia.
Whitsett vs. the State; Murder; Dooly County, Georgia.
Mallory vs. the State; Murder; Houston County, Georgia.
Scott vs. the State; Murder; Bibb County, Georgia.
Hammond vs. the State; Murder; Muscogee County, Georgia.
Charlton vs. the State; Murder; Chatham County, Georgia.
Ison vs. the State; Murder; Spalding County, Georgia.
Taylor vs. the State; Murder; Coffee County, Georgia.
Powell vs. the State; Murder; Early County, Georgia.
6

Jackson vs. the State; Murder; Jenkins County, Georgia.
Slocum vs. the State; Murder; Bibb County, Georgia.
Walker vs. the State; Murder; Washington County, Georgia.
Harris vs. the State; Murder; Brantley County, Georgia.
CIVIL CASES DISPOSED OF IN SUPREME COURT OF GEORGIA.
Crawford Wheatley vs. T. R. Bennett, Supt. of Banks. Dennison Manufacturing Company vs. Williarn A. Wright, Comptroller-General. J. N. Hirsch vs. William A. Wright, ComptrollerGeneral.

In order that you may have a record, by way of reply to the questions which you raise, the following is respectfully submitted:
You ask for opinion as to whether or not, under section 248 of the Civil Code of Georgia, first mortgage bonds of the character described in the circular of W. M. Davis can form authorized investments for Insurance Companies in this State.
A "first lien on improved real estate" means a first mortgage, within the immediate control of the holder, or owner, of such first mortgage.
The law does not seem to contemplate mortgage bonds held by several bondholders, who necessarily need to act before the lien established by contract in the bonds could be enforced upon the real estate; delay, disagreement, litigation, and some uncertainty, might ensue if more than one person, or one firm, held the lien of real estate.
My construction of the law is that it should be strictly construed, and that it means a complete and single interest in the security based upon the real estate pledged, and does not mean a general interest among numerous bondholders and owners of the lien which is established by the bond eontract.
Trusting that this fully answers the inquiry contained in your letter, I am, with highest regards and best wishes,
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
8

TAXES ON GENERAL INSURANCE AGENTS-EACH PERSON WHO ACTS IN SUCH CAPACITY LIABLE TO PAY THE TAX.
February 12, Hl23.
Hon. William A. Wright,
Comptroller-General, State Capitol.
Dear Sir:-Your letter of recent date in reference to occupation tax on Insurance Agents, Section 2, General Tax Agen,t 1921, paragraph 62 (6); (c); (d); (e); (f);, in which you say:
"Going back to the General Tax Act of 1909 (Code section 936), you will observe that a tax of $50 was imposed upon 'each and every traveling, or special, or general agent,' etc. The language of this section has not been changed except by the inclusion of the term 'manager," which was done for the reason that many persons in charge of the insurance company as its general or state agent, called themselves 'managers,' arguing that there was no occupation tax or. managers. The amount of the tax has been twice increased, viz: from $50 to $75 in 1918, and from $75 to $100 in 1921. In every tax Act, however, the tax has been impose<J upon each and every agent, etc."
"Section 935 of the Code (Acts of 1909) imposed a !lpecial or occupation tax upon 'each and every local insurance agent or firm of agents.' This provision remained unchanged until the Act of 1921, when the words 'or firm of agents were eliminated and the tax imposed upon each and every local insurance agent."
"Section 2 of every Tax Act provides that 'in addition to the advalorem tax on real estate and personal property, as required by the constitution and now provided by law, the following specific and occupation taxes shall be levied and collected each year, etc,' The tax on insurance agents now in effect ((Acts of 1921). The tax is not imposed upon Insurance Companies, but is a personal tax upon residents of this State engaged in the business of insurance agents, and the payment of the tax authorizes the agent to represent one or as many insurance companies as he sees fit.''
"Mr. Avary, in his letter, makes reference to my interpretation of this provision of the law, and is under the impression that prior to the Act of 1921, I held that a firm of agents, or an incorporated agency, acting as general agents, were only required to pay one occupation tax. These taxes are paid to the tax collectors of the several counties. The
9

language of the ACt imposing the tax upon general agents is very clear, and I do not recall ever having been asked for the proper construction of the Act until 1922, when the tax collector of Fulton county advised that the members of a firm of general agents were protesting the payment of the tax as individuals. I promptly advised him that the law imposed the tax upon each and every practioner of law, medinjce, etc."
Upon a very careful consideration of the question in, valved, the tax upon general insurance agents seems analogous to professional taxes-such, for instance, as the tax upon lawyers, doctors, adjusters of fire losses, etc. Each person who practices law, or medicine, or who adjusts a fire loss, must pay the tax of fifteen dollars.
While the arguments, to' the effect that a firm or partnership should be considered an entity, a quasi person, that is to say, one agent, are forceful and cogent, yet upon the closest construction the law seems to contemplate the payment of the tax by every person who acts as a general agent, who performs the duties of a general agent.
Should one member of a firm or corporation be designated as the general agent, and should he be held out as John Doe, of the firm of John Doe & Richard Roe, general agents .for such and such a company, and should John Doe perform all the acts of the general agency for that company, then one man could get by with the tax burden.
But where there is a firm, or even a corporation, consisting of two or more individuals, each of whom acts as general agent, and performs duties pertaining to the general agency, all of such persons come within the definitive terms 'Upon each and every traveling, or special, or general agent, or conducting the business of such companies in this State."
It is clearly the intent of the General Assembly to tax each and every person in a general agency who particiqates in conducting the business of any of the named insurance companies in this State.
Any other interpretation would encourage groups of agents to combine and escape taxation.
10

I note your statement to the effect that you have uniformly given the Acts the interpretation that a firm of agents, or an incorporated agency, acting as general agents, are due a tax for each individual in the partner or firm.
The general tax act manifestly sought to impose a tax upon every person engaged in the profession and vocation designated, and it is the policy of our laws to interpret statutes so as to carry into effect the legislative intent. If the provisions tend to impose unjust burdens the General Assembly should be appealed to to remedy the situation.
In my opinion, it is encumbent upon each member of the agency, referred to, to pay the tax imposed under the 62d paragraph of the General Tax Act of 1921.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
IS STATE LAW UNCONSTITUTIONAL WHICH REVOKES LICENSE OF FOREIGN CORPORATIONS? DECISION OF U. S. SUPREME COURT IN ARKANSAS CASES CONTROLLING.
Hon. William A. Wright, Comptroller-General, State Capitol..
Dear General Wrigbt :-We have for consideration, at your request, the telegram of Messrs. Titus & Deckle, attorneys, of Thomasville, Georgia, followed by their letter, the telegram being dated November 21st, and the letter under date of November 22, 1922. We also have before us the opinion of the United States Court in the case of:
Terrall vs. Burk Construction Co., the same being an appeal from the District Court of the
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United States for the Eastern District of Arkansas, decided February 27, 1922.
The State law of Arkansas, which was the basis of this litigation, is virtually on all fours with the statute of the same purpose in our State. Mr. Chief Justice Taft, who delivered the opinion of the court, said:
"The sole question presented on the record is whether a State law is unconstitutional which revokes a license to a foreign corporation to do business within the State because,, while doing only a domestic business in the State, it resorts to the Federal Court sitting in the State."
Judge Taft held that the conflict between the power of the State to exclude a foreign corporation from doing business within its borders, and the Federal Constitutional right of such foreign corporation to resort to the Federal Courts cannot be reconciled. Sections 2416 and 2420 of our Code are involved in the proposition in hand.
Of course, the deposits of these comptlnies may be properly impounded, and held to cover the final adjustment of the losses, and, if you see fit to do so, the licenses issued to these companies respectively may be revoked and declared forfeited; and, yet, it appears that litigation, in the face of this decision, will be absolutely futile.
If the attorneys for the insured see fit to litigate the proposition, we have no objection, but while the presumption in favor of the constitutionality of a given Act is very strong, and should be maintained whenever it can consistently be done, yet, the decision of the highest court in the land, in this case, indicates that there will be no possible hope for any results in this litigatio'n whatever different from that in the Arkansas case already cited.
The Attorney-General's office would practically stultify itself if it sought to oppose the decision of the Supreme Court of the United States, when the meaning of that decision is so obvious.
Our suggestion, therefore, is that you impound the deposits of these companies, and, if litigation is begun by the
12

persons insured, as set out in the letter of Messrs. Titus & Deckle, on their own responsibility, and they conduct the litigation, no pertinent objection could be made, as we understand it, by this office.
Respectfully submitted. GEO. M. NAPIER, Attorney -General.
ACT TO PROVIDE ADDITIONAL GROUNDS FOR REVOKING LICENSE OF COMPANIES INSURING AGAINST LIABILITY. PARTLY INVALID.
Ron. William A. Wright, Comptroller-General, State Capitol.
Dear Sir:-This acknowiedges receipt of your request that I examine into the validity of "An Act entitled an Act to provide additional grounds for revoking the license to do business in Georgia of companies engaged in the business of insuring against liability," etc., passed during the session of the General Assembly.
One of the additional grounds named is that such companies "shall fail, or refuse, to pay off and discharge any judgment rendered against the insured for liability covered by such insurance written by said company in this state, within thirty days after such judgment, shall have become
final, * * * * * * * * * or within thirty days
from the passage of this Act, as to judgments which shall have become final at the time of its passage, or prior thereto," etc. The failure of any such company to pay off the amount of such judgment shall be ground for revocation of the license granted to such company to do business in the State.
The provisions of this Act, so far as they refer to any judgment obtained against a person, firm or corporation,
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insured by a liability company in Georgia previous to the passage of this Act, are manifestly and palpably unconstitutional, because retroactive in character and effect. Pro.visions not retroactive will be enforceable, since the entire Act will not be rendered nugatory by reason of the unconstitutionality of parts of it.
In my opinion, the refusal of any company to pay off a judgment obtained against one of its insured, previous to the passage of the Act, would constitute no legal ground for a hearing, and, of course, no ground for revocation of license.
Respectfully submitted. GEO. M. NAPIER, A t t o r n e y ~General.
PROPERTY SOLD FOR TAXES-THE Fl. FAS. ARE THE EVIDENCE OF OUTSTANDING LIENS, AND SHOULD BE DELIVERED TO PARTIES FURNISHING THE MONEY WHEN LAND IS REDEEMED.
Hon. William A. Wright, Comptroller-General, State Capitol.
Dear General Wright :-Replying to your favor of even date, to which was attached letter of Ron. J. Wade Johnson, of Mount Vernon, Georgia:
Mr. Johnson says :
"In the spring of 1920 there was advertised, put up and sold considerable property in this county for taxes. For some reason the County Commissioners refused to divulge, they bid in the property they sold for the amount of the costs only. Before the expiration of the period allowed by law for redemption these people tendered the amount of the bid together with ten per cent premium and demanded a reconveyance of the property, same being refused by the County Commissioners, while in other cases the tender was made by lien holders, some of whom I represent. They have finally agreed to make reconveyance, but refuse to deliver
14

the execution under which the property was sold, and without this execution being attached to their papers, our contention is that the sale is void as the deed does not disclose under what authority the sale was made."
Code sections 1169 and 1179 are pertinent to this question, but the matter is, in my opinion, controlled by section 1170 of the Code, which is as follows :
"When property has been redeemed, the effect thereof shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale, and if the redemption has been made by any creditor of the defendant or person having an interest in the property, the amount expended by such creditor or person interested shall constitute a first lien thereon and be repaid prior to claims upon the property, if the quitclaim deed hereinafter provided for is recorded as required by existing laws."
The property is sold under tax fi. fas., and the evidence of the lien under which the sale was held should be delivered either to the defendant in fi. fa. or the persons who put up the money for the defendant to reclaim the. property sold.
The title conveyed by the tax sale is put back into the defendant in fi. fa., subject to all liens existing at the sale, says section 1170.
The fi. fas. are the evidence of the outstanding liens and should always be delivered to the party furnishing the money when the land is redeemed. The land is still subject to the lien of these fi. fas.
The requirement of the law is merely that the party redeeming the property, shall pay the purchaser the amount paid by such purchaser for said land, with ten per cent premium thereon from the date of the purchase to the time of payment."
It is not the amount due on the fi fa., under which the property is sold, but the amount paid, by the purchaser at the sale, which fixes the amount to be paid by the person redeeming the property.
The tender of the purchase money paid at the sale, plus
15

ten per cent "from the date of the purchase to the time of payment," has been held to constitute tender sufficient to accomplish redemption.
Code section 1178 provides as follows:
"The board of commissioners of roads and revenues in counties where such boards have been created, or the ordinaries or the judges of the county court in such counties as have such officers in control of their roads and revenues, are authorized to purchase and hold in their official capacity any real property offered for sale by virtue of the tax fi. fas.; provided that, said commissioners, ordinaries or judges shall only be authorized to bid on such real property, when other bids do not cover the amount of said tax fi. fa. and cost. And provided further, that said commissioners, ordinaries or judges shall not bid more for such property than the amount of taxes and costs. Said county authorities, upon bidding in any property as herein provided, shall draw their warrant. on the county treasurer to pay the said officers the costs due on said fi. fas., and accruing costs in effecting said sales."
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
DISTRIBUTION OF MONEY RECEIVED FROM GOVERNMENT FROM SALES OF FOREST LANDS IN VARIOUS COUNTIES.
Hon. W. J. Speer, State Treasurer, State Capitol.
My Dear Sir :-This acknowledges receipt of yours of the 22d instant, wherein you say :
"I respectfully refer you to Act of the last General Assembly, page 10, 'Proceeds of sales of products from Government area.'
"The caption of this bill names the following counties to participate in the distribution of these funds: Fannin, Rabun, Union, Lumpkin, Towns and Dawson.
"Funds are in the treasury to date, amounting to $6,667.97,
16

according to the schedules of areas for said counties, except-
ing Towns and Dawson, which are not entitled to it, and have no funds, according to Act of Congress.

"The bill omits the counties of Habersham and Gilmer,

which should participate in the distribution of areas fur-

nished by the United States Department of Agriculture

Forest Survey, on file in this office.



"Your attention is also called to the fact that the correspondence on file in this office shows that the disburse-
ment of these funds was made by the National Government to this State for distribution under Act of Congress, approved May 23, 1908 (36 Stat. 260), although the caption

of the bill of our General Assembly refers to Act of Congress approved March 1, 1911. (36 Stat. 961. ( Also section 2 of the Act of the General Assembly provides that 50 per cent shall be paid to, or for the benefit of public roads, and
50 per cent for the benefit of public schools in the cqunties set forth in the caption of the bill.

"On account of the irregularity of the bill referred to herein, I respectfully request your official opinion and direction in this matter. Would it be proper to request the Governor's executive warrant, and omit the two counties
that should participate in the distribution, reserving their prorata until a later date? Does the reference in the bill of the General Assembly to the National Act, which seems to be misquoted, make any material difference? If the funds now on hand are to be disbursed, to what official for schools in the counties, and to what officials for roads in the counties should I make my cheques payable ?

"Or, in your opinion, do you advise that the distribution be withheld until the next Legislature can remedy the defects in the bill by proper amendments?"

It will be right and necessary to safeguard the proportion of the funds in hand, or later arising, which of right belong to the counties of Habersham and Gilmer. And if the counties of Towns and Dawson are not entitled to participation in these funds, according to the Act of Congress, no division should be made to them until and unless these counties are shown to be entitled to a part of the funds.
Although the Act of the General Assembly of 1922 erroneously designates the Act of Congress under which it directs the distribution of the funds referred to, still, inasmuch as the Congress of the United States has actually authorized the disbursement of funds to the State of Georgia, the error in referring to the particular Act of Congress, in

17

my opinion, would not in any manner vitiate the Act oi the General Assembly.
However, the several discrepancies in the Act of the General Assembly seems to justify you in requesting the executive warrant for the paying out of the money to the counties named in the Act.of 1922, which are entitled to share therein under the Act of Congress.
While, ordinarily, funds for the county public schools are remitted to the Superintendent of County Schools, since the funds now being considered are of a special character, my advice would be that the Board of Education of the countjes sharing in the division of these area funds be notified of the expected remittance in their favor, and that these boards be requested to advise to whom the cheques shall be made payable. This precaution is advisable, in my opinion, because of the extraordinary character of the funds to be remitted.
A similar course would seem to be indicated as to the portion of the fund given to each of these counties for the benefit of roads. The county treasurer ordinarily receives the county's money. The Ordinary or the Board of County Commissioners, as the case may be, might be notified of the amount of the anticipated remittance, and be requested to give direction as to whether it is desired to remit it through the county treasurer, or direct to the Ordinary, or to the Board of County Commissioners.
In each instance above discussed, the respective county authority is entitled to be advised of the coming into its department of a specific sum of money from an unusual source, in order that it may consider and prepare for the appropriate expenditure of the money.
Your inquiry is very pertinent as to whether the distribution of these funds be withheld until our next Legisture can, by proper amendment, correct the irregularities in the Act. But this, in my opinion, is a question of executive consideration. Considering that the discrepancies and uncer-
18

tainties of the Act, His Excellency would be warranted, in his discretion, to defer authorizing any distribution of these funds, until such irregularities as you have pointed out can be corrected by a succeeding legislature.
Should the Governor "pass such order, voucher, or other instrument, as will pass said funds to the proper authorities of said counties," as provided in section 3 of the Act (See Georgia Laws, 1922, page 11) your department would be fully protected.
With assurances of high esteem, Respectfully submitted. GEO. M. NAPIER, Attorney-General.
STATE DEPOSITORIES-LAW DOES NOT SEEM TO CONTEMPLATE MORE THAN ONE IN TOWNS OF LESS THAN 6,500 POPULATION.
October 23, 1922.
Hon. W. J. Speer, State Treasurer, State Capitol.
My Dear Sir:-This acknowledges receipt of your favor, in which you say:
"On or about May 12, 1921, the Farmers and Merchants Bank of Cairo resigned as a State depository. On May 23d, 1921, they were reappointed a State depository by Governor Dorsey for a term of four years and filed their bond accordingly.
"On Sept. 1, 1922, the Cairo Banking Co., in the same town, was appointed a State depository for a term of four years-thus making two State depositories in the same town, the tax collector of Grady county being instructed to make deposits in each of said depositories.
"Please advise me if the Cairo Banking Co. is to supersede the Farmers and Merchants Bank, under the appointment of Governor Hardwick, and if the tax collector's order permits
19

,.

him to deposit only in the Cairo Banking Company, or if the

tax collector and myself are to continue to do business with

both banks."

A careful examination of the Act <;:reating State depositories as well as of the Acts amendatory thereof, convinces rne that it was not the intention of the General Assembly to allow the designation of two State depositories in town of l~ss than 6,500 population.
Therefore, the question arises, which of the two in Cairo is the legally designated State depository?
It is manifest that it was the executive intention to have the one last designated, the Cairo Banking Company, to supersede the bank formerly appointed. If litigation is had over the question, it will require a judicial decision to fully determine it.
In my opinion, you have a right to follow the later appointment; yet all transactions with both banks are protected under the law. They are de facto State depositories. You and the tax collector may do business with both, or you may select one of them and confine your business to that one, until the cO'urt's decision, if the matter should be contested, shall direct you as to which of the two shall have the State's business.
Respectfully submitted. GEO. M. NAPIER, Attorney -General.

GRAND OPERA-TAX ON $2.500, PAYABLE ANNUALLY.
April 19, 1923. Hon. William A. Wright,
Comptroller-General, State Capitol.
Dear Sir :-This acknowledges receipt of your letter of 20

Honorable W. S. Richardson, tax collector, of Fulton county,
regarding tax on "Grand Opera."
Mr. Richardson says:
"Attorney for the Atlanta Music Festival Association, in quoting section 117, of the 1921 Tax Act, uses the word 'contracts' as the last word of the section, whereas, according to the Georgia laws of 1921, and as quoted by you in your instructions to the tax collectors, the last word of the section reads 'concerts.'
"Mr. Parker, attorney for the Atlanta Music Festival Association, advises that the association holds a contract with the Metropolitan Opera Company, of New York, under which the latter company is to give ten seasons of grand opera in Atlanta, which said contract is now of full force and was of full force during the year 1922.
"The question raised is whether or not the Atlanta Music Festival Association are taxable for conducting grand opera in Atlanta $2,500 per annum, or does the $2,500 already paid for the year 1922 cover the special State tax on grand opera concerts for their term of contract, namely, ten years."
An examination of the original bill, and the engrossed
copy thereof, shows that the language of section 117 of this
bill (See Georgia Laws, 1921, page 38, et. seq.) is asfolldws:
"117th: Upon each grand opera producing company filling contracts in this State, $1,000, in cities of 100,000 or less population, or $2,500 in cities of more than 100,000 population for each of such contracts.''
The language in the printed Act is "for each of such
concerts." "Contracts" is the last word in the section, and
not concerts.
The caption of the Act is:
"An Act to annually, in addition to the advalorem tax on real and personal property, as now required by law, to levy and collect a tax for the support of the State government and public institutions; for educational purposes in instructing children in the elementary branches of an English education only; to pay the interest on the public debt; to pay maimed and indigent Confederate soldiers, and widows of Confederate soldiers such amounts as are allowed them by law; to pay the public debt when due; to prescribe what persons, corporations, professions, business and property are liable to taxation; to prescribe the methods of collecting and receiving certain of said taxes; to prescribe questions to be propounded to taxpayers and to provide penalties for violations thereof, and to repeal conflicting laws."
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Section 2 of the Act reads :
"That the Governor, by and with the assistance of the Comptroller-General, is authorized and empowered annually to levy and assess a tax on the ad valorem value of the taxable property in this State such rate as may be sufficient to raise a net amount of $100,000 as a sinking fund to pay of and retire the valid outstanding bonds of the State as they fall due as required by Article 7, Section 14, paragraph 1, of the Constitution. The tax above authorized shall be specially levied and collected, and separate accounts of the same shall be kept by the treasurer, and the money arising therefrom shall be applied to paying off the valid bonds of the tSate as they mature. The said amount so received each year shall be applied to the paying off and retiring the valid bonds of the State maturing in their order continuously. All bonds retired under the provisions of this Act shall be cancelled and stamped with the word 'sinking funds' by the treasurer and filed in his office."
Connecting the pertinent language of the caption with the language of the 117th section the reading would be as follows:
"An Act to annually levy and collect a tax," etc. And the language of section 2 is: "The following specific and occupation taxes shall be levied and collected each year, after the passage of this Act, beginning with 1922."
Therefore, it is as if the language used had been "An Act to annually levy and collect a tax upon each grand opera
producing company filling contracts in this State * * *
$2.500 in cities of more than 100,000 population for each of such concerts."
And:
"The following specific and occupation taxes shall be collected each year . . . . beginning in 1922: upon each grand opera producing company filling contracts in this State," etc.
Torepeat, the language is ANNUALLY and EACH YEAR.
What was the legislative intent? It is possible that it expected the Metropolitan Opera
22

Company to escape paying annual taxes because it could make a contract for ten years, and could merely pay one tax of $2,500 on a contract covering ten years?
What facts were in the legislative mind?
Why, that the Grand Opera Company in Atlanta yields to the company producing the entertainment around $100,000.00 annually! Last year the receipts were above $85,000.00; but the receipts were some less than in 1921.
It is represented to me that the House in 1921 had adopted $2,500 per year as the tax on grand opera. In the senate it was referred to a sub-committee and that sub-committee recommended to the full committee, and the full committee recommended to the senate, a five per cent tax on the receipts of grand opera, one half of the rate of the Federal tax. When it reached the conference committee of the two houses, the representatives of the grand opera guarantors insisted that the tax be fixed at $2,500 per year, instead of at five per cent of the gross receipts. In 1921, the receipts were about $90,000, which, if equalled in subsequent years, would have produced a tax on the five per cent basis of $4,500 per year. The $2,500 annual tax thus made a saving of $2,000 per year. The Senate conference agreed to the $2,500 yearly tax.
At a tax rate of $2,500 per year, this would be around two and one-half per cent of the receipts. If the company escapes with a tax of but $2,500 for ten years, the tax would be about one-fourth of one per cent per year on the receipts and only $250 per year for ten years.
The language employed in the Act precludes this construction. It is manifest that the General Assembly undertook to levy an annual tax, and not a tax upon a contract. It is a yearly tax upon the production of grand opera, and it was clearly intended to require the payment of a tax for each and every year that a contract to produce grand opera may be filled. If the opera company cO'uld make a contract
23

for ten years, and get off with one year's tax, it could make a twenty-five-year contract.
The history of this particular tax legislation strengthens the conclusion drawn from the language employed.
It is, of course, a question, as to what the courts might decide on a technical construction of the language of the Act, but as to the rightfulness of a demand for an annual tax of $2,500 on grand opera, in view of the provisions of the Act, there appears no doubt.
The incoming legislature will Have the power to change the tax rate, and thus to clear up any possible doubt arising from the language employed in the Act of 1921.
As it stands, the tax authorities are, in my opinion, justified in demanding payment of the annual tax of $2,500 for the year 1923.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
CAR EQUIPMENT COMPANY-DOUBTFUL IF GULF REFINING COMPANY IS-LEGISLATION MAY NEED TO BE AMENDED.
April 6, 1923. Hon. William A. Wright,
Comptroller-General, State Capitol.
My Dear Sir :-This will acknowledge receipt of letter of Hon. W. J. Guthrie, associate general attorney of the Gulf Refining Company, to yourself, under date of April 2d, 1923, in reference to filing of tax tax returns of his company, as an Equipment Company:
The Act of 1918 (See Georgia Laws 1918, p. 78,) was amended by the Act of 1919, page 55:
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The Act of 1918, referred to, contains a description of a Car Equipment Company., as follows:
"Any person or persons, copartnership company or corporation whenever organized or incorporated, whose principal business is furnishing or leasing any kind of railroad cars, except dining, buffet, chair, parlor, palace or sleeping cars, or in whom the legal title of any such cars is vested but which are operating or leased, or hired to be operated on any railroad in this State, shall be deemed an equipment
company * * * * * * * *."
From the facts stated in Mr. Guthrie's letter, the Gulf Refining Co'.'s principal business is not the furnishing, or leasing of any kind of railroad cars, but tl:te cars maintained and used by this company are used solely by the company in connection with the conduct of its principal businessthe refining of oil, the manufacture and sale of fuel and lubricating oil.
Although the language is "or in whom the legal title of any such cars is vested, but which are operated or leased, or hired to be operated on any railroad in the State," etc., it is doubtful that it could be maintained that the Gulf Refining Company is an Equipment Company. It would, therefore, seem impossible to enforce this taxation against the Gulf Refining Company, if it resists making the returns.
It would seem that the Legislature could readily remedy the difficulty by the enactment of the proper statute.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
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MOTION PICTURES MAY BE EMPLOYQED TO PUBLISH DATA AND FACTS REGARDING FRUIT CROP OF GEORGIA.
Ron. Martin V. Calvin, Statistician,
Department of Agriculture, State Capitol.
Dear Sir :-This is to acknowledge receipt of your letter of the 25th instant, in which you say:
"At the request and by the authority of Hon. J. J. Brown, commissioner of agriculture, and ex-officio commissioner of immigration, I am addressing you this letter.
"Commissioner Brown is in receipt of appeals from citizens, owning peach orchards in Habersham county, and from railroad authorities in this State, in the interests of advertising by motion pictures, based on photographs to be taken at once, of trees now in full fruit, the possibilities of fruit culture in Georgia.
"Commissioner Brown wishes to know whether he can legally use, for the purpose indicated, the sum of $500.00, or so much of said sum as may be necessary of the $3,000 annually appropriated to the department for the purpose of carrying out the requirements of the Act of 1893 in re: the collection and distribution of agricultural and cognate statistics. The thought is that such statistics are to be used as a means of advertising the State in the matter of agriculture, etc.
"See appropriation Act in Georgia Laws, 1921, page 14, sub-section 8, second paragraph "C." See Code of Georgia, par. 11, section 2068."
We have carefully examined the law you cite. There is appropriated, by the General Appropriation Act of 1921 the sum of $3,000 to carry out the provisions of paragraph 11 of Code, section 2068. This paragraph 11 reads as follows:
"The Commissioner of Agriculture shall annually collect, and present in his report, statistics, accurate and full as possible, relating to agriculture in all of its branches as practised in this State. The statistics thus collected shall show by counties the acreage, the total yield, and the average yield per acre, of the crops grown in this State.
In my opinion, it was not the legislative intent to provide for the advertising by motion pictures of the orchards of'
26

this State. This provisiOn of the law relates to statistics, and could not be ~xtended to include the expense of taking views for photographs or motion pictures.
Paragraph 4 of said section 2068 of the Code reads:
"Said Commissioner shall examine into any question that may be of interest to the horticulturalists and fruit growers of this State and in all endeavors that he may deem proper toward encouraging these industries."
This provision looks to the encouragement of the pornological industries of the State, but it does not go far enough to authorize the expenditure of money for the purposes mentioned in your inquiry.
The rare gifts of soil and climate to our. imperial commonwealth, as shown in the magnificent fruits which grow in Georgia might well be shown to an admiring world through the appealing mechanism of the motion picture. But the Commissioner of Agriculture is only .authorized to "examine into" the questions and "endeavors," and is not given authority to expend money, after his examination into the question.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
HIGHWAY BOARD-SALARY OF CHAIRMAN OF TO BE FIXED BY THE HIGHWAY BOARD.
December 18, 1922. Hon. H. G. Spahr,
Secretary-Treasurer, State Highway Commission, State Capitol.
My Dear Sir :-This is to acknowledge. receipt of yours of this date, in which you say:
27

"At a meeting of the State Highway Board, held in the chairman's office, on December 16th, the following motion was passed:
" 'On motion, the salary of the chairman for the year 1922 be, and the same is hereby approved, the same as that provided by resolution for the year 1923, provided that the board receives a written opinion from the Attorney-General that this action is legal.'
"I will greatly appreciate your prompt attention in furnishing me, for .the board, a report in t~e premises."
Since express authority is contained authorizing the State Highway Board to fix the salary of the chairman for the year 1922, it is my opinion that th~ action set out in the motion above is entirely legal.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
CATTLE TICK ERADICATION NOW STATE-WIDE-RULES COULD NOT LEGALLY BE MODIFIED SO AS TO EXEMPT A PARTICULAR COUNTY, EXCEPT BY LEGISLATIVE EN" ACTMENT.
August 30, 1922. Hon. J. J. Brown,
Commissioner of Agriculture, State Capitol.
Dear Sir:-Yours received, in which you request opinion as to whether it would be legal to sign the following, which has been submitted to you with request for your signature thereto:
"Be it ordained that the work of tick eradication in Echols county be, and the same is hereby, suspended in any manner or form save and except the quarantine of said county for twelve months from date hereof.
"The State veterinarian and his servants, agents and employees are hereby commanded to suspend further operations in said county until such time as I shall approve.
28

"It is further ordered that the rules and regulations as to the shipping from said county of dressed meats, salt and flint hides is hereby suspended.
"Done and ordered by the Commissioner of Agriculture of the State of Georgia, this, the day and year first above written.
"Commissioner of Agriculture of Georgia."
The Act of 1910, section 2, provides:-
"Be it further enacted by the authority aforesaid, That the duties of the State Veterinarian shall be to investigate and take proper measures for the control and suppression of all contagious and infectious diseases among the domesticated animals within the State, under such rules and regulations as may be promulgated by him and approved by the Commissioner of Agriculture; He shall assume charge of the work of cattle tick eradication in co-operation with the Federal authorities, and shall devote his entire time to the health and improvement of the livestock industry of the State; and he shall make report upon his work annually, the same to be published in the annual report of the Commissioner of Agriculture."
The Act of 12, as amended by the Act of 1914, provides:-
"Be it enacted, That this work shall be under the supervision and control of the State Veterinarian, who is hereby authorized, under the rules and regulations now in force, issued under date of November the 9, 1910, and approved by the Commissioner of Agriculture, to employ and discharge men qualified to act as cattle inspectors, or Supervising Veterinarians, and a clerk for keeping the records of this work. Annually he shall file with the Commissioner of Agriculture a detailed statement of the expenditures and progress of this work, same to be published in pamphlet form for free distribution among the people."
Note that this Act legalizes rules and regulations issued November 8, 1910, approved by the Commissioner of Agri-
culture.
By Act of 1918, the effort at tick eradication was made State-wide. Section 2, of this Act provides:-
"Be it further enacted that on or before the first day of April, 1919, the Ordinary, County Commissioners or officers in charge of the County affairs in each and every county where tick eradication has not been completed shall construct such number of dipping vats as may be fixed by
29

the State Veterinarian, or his authority, and provide the proper chemicals. and other materials necessary to be used in the systematic work of tick eradication in such counties, which shall begin on said date or such subsequent date as may be fixed by the State Veterinarian, which the approval of the Commissioner of Agriculture....."
In sum and substance, it appears from the laws quoted above:
1st: The undertaking to eradicate the cattle tick is now State-wide in Georgia. Rules affecting the entire State could not be modified so as to suspend operations in a County, except by authority of a statute enacted by the General Assembly.
2nd: Certain rules and regulations, approved by the Commissioner have been enacted into law, and a repealing Act would need to be passed before these rules and regulations could be set aside.
In my opinion, for these legal reasons, the Commissioner of Agriculture has not the power, under the law as it now stands, to sign an order of the character and effect of that hereinbefore set out.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
RULES FOR CATTLE TICK ERADICATION MAY BE MODIFIED WITHIN CERTAIN LIMITS BY COMMISSIONER OF AGRICULTURE.
August 24, 1922. Hon. J. J. Brown,
Commissioner of Agriculture, State Capitol.
Dear Sir :-Replying to yours of even date herewith, in which you say:
30

"Will you please give me your opm10n as to whether or not I have the authority to revoke any ruling already established in the work as pertainng to tick eradication? I have been informed that rulings once established could not be changed or revoked without the consent or approval of the State Veterinarian. I would appreciate your opinion as early as convenient."
Code Section 2082 is as follows:
"The duties of the State Veterinarian shall be to investigate and take proper measures for the control and suppression of all contagious and infectious diseases among the domesticated animals with the State under such rules and regulations as may be promulgated by him and approved by the Commissioner of Agriculture of Georgia."
Thus it is shown that the rules governing tick eradica-
tion are to be promulgated by the State Veterinarian with the approval of the Commissioner of Agriculture.
In my opinion, it would be within the province of the Commissioner of Agriculture to order a modification of the rules, unless there exists some "rule" duly adopted which prevents changes or modifications within a certain period of time. That rule, in turn, could be modified.
The law does not contemplate that rules once promulgated, agreed upon and promulgated are to be capriciously changed.
But reasons may arise which alter situations, and if so due consideration of all matters pertaining to the issues should be given, after notice, if need be, to parties concerned. It would be within the power of the Commissioner to order regulations and rules revised or modified.
The time and manner of any hearing to consider modification of the rules could properly be set by the Commissioner of Agriculture in accordance with his convenience, duties and engagements.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
31

PRIORITY OF CLAIMS DUE STATE INCLUDE INTEREST AS WELL AS PRINCIPAL.
October 17, 1922. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir :-In compliance with your request on the que~ tion of whether or not priority claims due the State of Georgia, Counties, or municipalities bear interest, and at what rate, beg to submit the following:
The State's right and priority does not depend upon Statute, but is a common law prerogative of sovereignty which will be recognized as existing unless expressly denied by Statute.
This priority of prerogative right of preference in the payment of debts, constituted a branch of the common law of England; and as such was adopted in this State by the Act of 1784.
In the case of Booth vs. The State, 131 Georgia, page 750, it is held:
"This right of priority is a wholesome right and such as should receive the sanction and approbation of the courts."
The State is entitled to 7% interest from date of receivership, and this also has priority. This was held in the case of Central Park vs. The State, 139 Georgia, page 54.
Trusting that this covers your inquiry fully, I am, YO'urs very truly, SEWARD M. SMITH, Assistant Attorney-General.
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BANKING DEPARTMENT NOT CALLED UPON TO SUPERVISE AN INSTITUTION NOT REGULARLY CHARTERED AS A BANK.
December 8, 1922. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol,
Atlanta, Ga. Dear Sir:-Your letter of the 6th inst. received and contents noted. You state in your letter as follows :
"There was an institution operating in Georgia prior to enactment of Georgia's present Banking Act, and supervised by the State Treasurer, then Bank Examiner, accepting savings deposits ang. issuing certificates of deposit, which was and is operating under a Superior Court Charter.
"This Department, since its organization, has continued to supervise this bank, making regular examinations, but it now occurs to us that should we make an effort to require them to comply with certain sections of the Act, we would have no power to bring the matter to conclusion.
"I write to ask your opinion as to our duty in this matter."
I do not think your Department should be called upon to supervise and examine some Institutions that you could not make comply with all Sections of our present Banking law.
An institution is not a bank that is not regular and duly chartered, as the law provides. Our present Banking Act provides the method whereby banks are incorporated and before our present Banking Act was enacted, our old law provided the method whereby banks were incorporated.
It is my opinion that this Institution is not a regular duly chartered bank and, therefore, you would not be called upon to supervise and examine same.
Respectfully submitted, SEWARD M. SMITH,
Assistant Attorney-General.
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NITRATE OF SODA-DEPARTMENT OF AGRICULTURE EMPOWERED TO SEND REPRESENTATIVE TO OTHER STATES TO PURCHASE.
April 25, 1923. Hon. J. J. Brown,
Commissioner of Agriculture, State Capitol.
Dear Sir :-Replying to yours of this date, referring to a conversation we had same few weeks since, wherein, the question was submitted whether you would be authorized to send and defray the expenses of an expert to render certain service to the State, in arranging the prices and shipment of nitrate of soda into this State, for use by the farmers of Georgia.
One of the cardinal features of service of your Depart-
ment is to make such arrangements and to save money to
the farmers of the State for the purpose of encouraging and advancing our agriculture. Reasonable and necessary expenses incurred in securing the best results along this line are, in my opinion, authorized under the law.
The well known rule, that a statute. shall be construed so as to make its purpose and intent effectual may be invoked in this instance.
To have your Department fail in such an important undertaking, to-wit: the saving to' our farmers of a very large sum in the purchase of nitrate of soda, because you hesitate to lay out the money to send a representative beyond the limits of the .State, would be to discredit the law creating the Department of Agriculture.
We need both economy and efficiency, of course. It would evidently be false economy to promote efficiency in a matter so important as the foregoing.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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INSPECTION OF OILS-LAW AS TO BENZINES, NAPTHAS, ETC.-EFFECTIVE ON FUEL OILS USED BY DISTRIBUTORS FOR THEIR OWN USE.
April 11, 1923. Ron. P. H. Mell,
State Department of Agriculture, State Capitol.
Dear Sir :-Replying to letter of Mr. R. E. Hodgson, to Mr. L. H. Glenn, General Oil Inspector, dated April 10, 1923, which you have left at this office, I beg to say that:
Section 1809 (e) of the Civil Code provides that the provions of the law regarding the inspection of oils "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 may be sold elsewhere, or brought into the State for consumption and use."
Where such commodities, or any of them, are without the State and brought into the State of Georgia for consumption or use. Where such commodities or any of them may be purchased within 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 use or consumption in manufacturing or other lawful use, either as fuel or otherwise, the inspections herein prescribed shall be made and the fees above fixed shall be paid therefor, ...."
I have taken the pains to examine all the Acts later than the Act of 1913, which is the basis of the Code section just quoted, and find no change in the law above set out.
Therefore, the law requires Inspectors of this State to inspect all the gasoline which is shipped from Refineries to the substation dealers and to pay the fees for such inspection.
No' matter what part of such gasoline may be used by the Standard Oil Company, or any other distributor for fuel needs or for trucks, the inspection is required to be
35

ma<Ie and paid for, and there is no rightful basis, or legal provision for any refund of fees received for inspection of gasoline or other fuel oils used in this State.
Respectfully submitted, GEO. M. NAPIER, Attorney -General.
FERTILIZER TAGS MAY BE DESTROYED BY COMMISSIONER ' OF AGRICULTURE WHEN TAGS ARE NO LONGER CAPABLE OF USE.
February 23, 1923. Hon. J. J. Brown,
Commissioner of Agriculture, State Capitol.
Dear Sir:-Y/lur letter of the 19th, instant has not been replied to more promptly because I have been out of the State for some days until this morning.
There appears to be n<Y law that will prevent you, in your 'discretion, from destroying the fertilizer tags which have outlived their usefulness.
No formality need attend the destruction of the tags, except that' you may have a reasonably correct account of the tags to be destroyed made, and then have the statement entered on your records that on a certain date 's<Y many tags left over from certain past years' were destroyed. In my opinion that will be entirely sufficient, to protect your Department.
With assurances of highest esteem, I am, Very sincerely yours, GEO. M. NAPIER, Attorney -General.
36

PRIVATE ACCOUNTS OF DEPOSITORS OF BANKS NOT SUBJECT TO INSPECTION BY FEDERAL INCOME TAX AGENTS. SUCH PRIVILEGE OF INSPECTION WOULD VIOLATE .THE CONSTITUTIONAL RIGHTS OF CITIZENS.
April 19, 1923. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir :-This acknowledges receipt of yours of even date herewith, wherein you say:
"In order that I may be in a position to advise bankers of the State, as to just what is required of them, in a legal way, as to revenue agents requesting, or demanding detailed information as to customers' accounts, I should like to have your opinion as to the procedure necessary, if any in complying with such requests or demands."
The Constitution of the State of Georgia, Article 1, Paragraph 16 (Code section 6372) provides as follows:
"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 describing the place, or places, to be searched, and the person or things to be seized."
The Constitution of the United States uses exactly the same words.
This means what it says ; that the people of the State, have the right "to be secure in their persons, houses, papers and effects against unreasonable searches," etc.
One's bank account is a mere transfer, in a private manner, frron a purely personal environment to the private and confidential knowledge and transactions of the bank, and its officers and employees. The effort to invade the business privacy of the bank for the purpose of discovering the amount of money any customer of the bank may have on deposit is unauthorized in law. It is an invasion, not
37

only of the rights of the bank, but of the rights of the de-
positor.
No person can be secure in his "papers and effects," if
his bank account can be scanned and examined into by any
person at will and pleasure.
Mr. Justice Lumpkin said, in the case of-Williams vs.
The State, 100 Georgia, 515:
"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 right 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 immunity from an unreasonable search of his person."
And from the same case :
"This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize, by statute, what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without any color of authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility, and of their own volition, surely none of the three divisions of Government is responsible. If an official, or a mere petty agent of the State, exceeds or abuses the authority with which he is closed, he is deemed to be acting not for the State, but for himself only; and, therefore, he alone, and not the State, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a mere individual, the most that any branch of the government can do is to afford the citizen such redress as is possible, and bring the wrong doer to account for his unlawful conduct."
In my opmwn, no bank has any right to allow any in-
dividual, whether an officer, revenue agent, Tax Agent,
or official of any kind whatsoever, to examine into the
private accounts of customers of the bank, to obtain in-
38

formation regarding such accounts. There is a legal method by which books and papers may be brought into court. Until that method is brought into play, all persons should be secure-actually and constitutionally secure-in the private anq confidential possession of their papers and effects committed to the bank severally selected by each.
The examination of the private accounts of depositors of a bank, by an outsider not legally authorized would be the exercise of the highest tyranny and oppression, of a power monstrous and revolting. It is the equivalent of the ruthless invasion of a private home, and the search in that locality sacred from the presence of an unwelcome intruder, of the private papers and effects of the owner.
The Government may obtain information concerning the income tax due by individuals, but not by prying into their "private papers and effects," which the Federal and State governments alike have, by their constitutions, guaranteed to be safe, and sacred, and free from unreasonable searches and seizures.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
BANK WHOSE CHARTER HAS EXPIRED CAN LEGALLY BE TAKEN CHARGE OF BY DEPARTMENT OF BANKS AND LIQUIDATED.
November 20, 1922. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir :-Replying to your letter of the fifteenth instant, wherein you state:
"Having a bank in Georgia, whose charter expired more
39

than six months ago, there has been submitted to me the fact that said charter has expired, and for such reason the bank in question should be taken charge of by this Department, and liquidated in accordance with section 4 of article 15 of the Banking Act. I should like to have your opinion as to whether or not this fact is sufficient to make it my duty to close and liquidate this bank, or is it operated under section 3 of article 1, as a private institution?"
You state, in your letter, that these facts have been called to your attention. In order to comply with section 4 of article 15 of the Banking Law of Georgia, which reads as follows:
"Any person shall have the right to submit to the Superintendent of Banks any facts which, under the law, would authorize the forfeiture of the charter of a bank, or any facts which would authorize the liquidation of a bank, or the appointment of a receiver therefor, and on such submission being made, it shall be the duty of, the Superintendent of Banks to investigate, and if on such investigation he ascertains that the facts are such as will justify action for forfeiture of the charter or for the liquidation of the bank, or for the appointment of a receiver, it shall be the duty of the Superintendent, to take appropriate action in the premises."
In order to comply with the above quoted section of our Banking Laws, I think it the duty of the Superintendent of Banks to make an investigation, and, if you should find that the bank is insolvent, then, of course, it would be your duty under the law to take possession of the bank and liquidate in accordance with the law, as provided for in such cases.
Now, if upon investigation, you should find that the charter of a bank had expired, it is my opinion, under the authorities hereinafter cited, that it is the duty of the Superintendent of Banks, by virtue of section 3 of article 15 to take charge of the business and assets of the bank, and liquidate same.
40

Section 1, of article 10 of the Banking Act provides that:
"The application for the renewal of charter shall be filed six months prior to the expiration of the charter of the bank."
That is the only provision made by our banking laws whereby a charter can be renewed. Th~re is no provision in our present Banking Law whereby you can revive the charter of a bank. The statutes that once existed whereby you could revive a charter of the bank have been repealed by section 1 of article 21 of our present banking law, wherein it is stated:
"This Act shall take effect from and after the first day of January, 1920, AND SHALL THEN SUPERCEDE ALL EXISTING LAWS REGULATING BANKS AND BANKING IN THIS STATE....."
Now bear in mind the old method of renewing a charter required a majority vote of the stockholders, but now, under our present law, a two-thirds vote of the stockholders is required. That shows that the present Banking Law repealed the old method.
In the case of:--
Venable Brothers vs. Southern Granite Co. 135th Ga. page 508.
and cases there cited, the Supreme Court distinctly holds that the stockholders of a defunct corporation, whose charter has expired, are separate and distinct fro'm a corporation at all times, and that their acts, after the expiration of the charter of the corporation, do not constitute a corporation de facto or by estoppel. It is distinctly held in that case that the only remedy provided for creditors, is to have a Receiver appointed to administer the assets of the corporation, under the direction of the Court, of the corporation under direction of the court, and it is further held in that case that after the expiration of the charter, or charters,
41

the corporation is dissolved, as a matter of law, and that the corporation ceases absolutely to exist.
Now, you will note this decision holds that a Receiver should be appointed. But, under the present law, the Superintendent of Banks, takes the place of a Receiver, therefore, instead of having a receiver appointed, you as Superintendent of Banks, take possession and liquidate it in accordance with law.
In the case:
Council, Receiver vs. Brown, et. al. 151 Ga. 564, the Su-
preme Court had under consideration the charter of a Banking Corporation what had expired by operation of law, and, in that case, the Court held that the corporation ceased absolutely to exist upon the expiration of its charter.
Now, it might be said, that since this charter having expired it is an ordinary partnership, and that the Superintendent of Banks should not take possession of same. This cannot be feasible for at the time of the expiration of this charter this bank was no doubt under the jurisdiction of the State Banking Department of Georgia. It is manifest that the purpose and intent of the Banking Law was to vest in the State Superintendent of Banks the power to regulate and control banks. It is inconceivable that a bank, once under his control, as a chartered institution, should by the lapse of its charter, to be allowed to go from under his control. If the Superintendent of .Banks has no jurisdiction of banks of this kind in any way, then it would be impossible, under this law, for any creditor or stockholder of these kind of banks to ever collect his claims, or to enforce the liquidation of the bank.
42

Trusting that the above covers your inquiry, I beg to remain,
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.

HIGHWAY-RE-LOCATION OF INCLUDES RE-SURVEY, BUT COMPLETE CHANGE OF ROUTE ONCE LOCATED IS NOT FAVORED.

Hon. John N. Holder, Chairman State Highway Board, State Capitol.

June 23, 1922.

Dear Sir :-Replying to your inquiry as to the scope and meaning of the language contained in the Act of 1921, page 200, amending the State Highway Act of 1919, the said language being as follows:

"Provided that the said State Highway Department shall take over the State Aid Roads as above mentioned on or before January 1, 1922, and provided further that when the various counties have complied with the law with reference to right-of-way, and provided further that the said Highway Department in taking over said roads is not bound to the right of way of the road beds as located on January 1, 1922, but shall have the right to re-survey and re-locate said roadbed and right of way and it shall be the duty of the county or counties in which re-surveys and re-locations are made to furnish the right of way or the re-location and re-survey free of charge to the said Highway Department."

From a technical point of view this verbiage is not difficult of understanding.
The terms "re-survey" and "re-locate" mean to survey again and locate again.
" 'Re-survey,' as used in Rev. Laws, section 2920, providing that, if the terminations and boundaries of a high-
43

way cannot be ascertained, the selectmen may re-survey the highway, means to re-locate it and the lines may be where originally located, or may be elsewhere. To say that word 're-survey' means nothing more than to locate the lines of the boundaries in their original location is to, give to the law a too narrow construction. Culver vs. Town of Fair Haven, 31 Atl. 143, 144, 67 Vt. 163."
The sole object of a re-survey is to ascertain the location of the road, and its boundaries precis~ly as they were established by the original survey.
Caulkins vs. Word, 27 Iowa 609. But the language shows clearly that in re-locating the ro'ad, the Highway Board is not held either to the road bed or right of way of the road as located and surveyed. The power of the Board is ample and liberal. However, in my opinion, it is manifest that it was the legislative intent to adhere as closely as practicable to the original survey or location of the roads taken over by January 1, 1922, even in the event certain changes in the Ideation of the road bed and right of way be found necessary. It is within the province of the Board to partially change even the route of a located road where the topography of the terrain indicates the necessity of such change, but the language of the Act indicates that a complete change in a route once adopted is not favored.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
44

HIGHWAYS' PRIVATE TELEPHONE LINES MAY NOT BE CONSTRUCTED ALONG, EXCEPT BY PERMISSION OF EITHER COUNTY AUTHORITIES, OR STATE HIGHWAY BOARD.
Hon. John N. Holder, Chairman State Highway Commission, State Capitol.
Dear Sir :-This is to acknowledge receipt of yours of the twentieth instant, in which you ask whether a person can rightfully construct a private telephone line along the right of way of the State Highway, in spite of the protests and objections of the State Highway Department.
The law provides that even public telephone and telegraph companies before they are authorized to construct their lines must obtain consent of the County authorities in eharge of such highway.
The State Highway Department has been given charge of the highways of the State, and must act in lieu of the County authorities.
Section 546, of the Penal Code, makes it a misdemeanor to encroach upon a public road.
In my opinion, the Act of 1919, page 242, et. seq., which authorizes the State Highway Board, now the State Highway Department "to designate, improve, supervise and maintain" our system of State roads, confers full authority on the State Highway to take all needful steps to prevent the erection of a private telephone line along the right of way of any highway.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
45

COUNTY ELECTION FOR BONDS-FOR BONDS TO CARRY, TWO-THIRDS OF THOSE VOTING MUST FAVOR AND THESE TWO-THIRDS MUST BE MAJORITY OF REGISTERED VOTERS.

Hon. John M. Holder,

Chairman State Highway Board,

State Capitol.

My Dear Sir :-In reply to your request for opinion on the

questions raised by letter of Mr. A. V. Howe, of Tallapoosa,

Georgia, as to the majority necessary to carry a county

election for bonds:

'

Two-thirds of the voters of the county must vote in

favor of the issurance of bonds.

The tally sheet of the last general election is not used to

determine the number of votes. The Registration Law

has superseded Section 443 of the Political Code, which

specifies the manner of determining when the necessary

two-thirds vote has been cast for bonds in a county election.

The Act of 1916 (See Georgia laws 1916, page 138) was

repealed by the Act of 1918 (Georgia Laws 1918, page 99 et.

seq.) which being adopted in the State elections of 1918,

became a part of the State Constitution.

Paragraph 1, section 7, Article 7, of the Constitution of

the State of Georgia (Georgia Laws, pp. 99-101) provides

that:

"Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by the same, That paragraph 1, Section 7, Article 7, of the Constitution of this State be, and the same is hereby, amended by inserting between the word 'thereof' and the word 'at' as they incur in the tenth line of said paragraph, the following 'voting, provided said two-thirds so voting shall be amajority of the registered voters, and provided further that all laws, charter provisions and ordinances heretofore passed or enacted providing special registration of voters of counties, municipal corporations and other political divisions of this State, to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void and the General
46

Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political divisions made prior to January 1, 1918, shall not be affected hereby,' so that said paragraph when so amended shall read as follows:
"Paragraph 1: The debt hereafter incurred by any county, municipal corporation or political division of this State, except as in this Constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not exceeding one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of two-thirds of the qualified voters thereof voting at an election for that purpose to be held as prescribed by law, provided said two-thirds so voting shall be a majority of the registered voters, and provided furthe rthat all laws, charter provisions and ordinances heretofore passed or enacted providing special registration of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties municipipal corporations and other political divisions are hereby declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations o rother political divisions made prior to January 1, 1918, shall not be affected hereby, but any city the debt of which does not exceed seven percentum of the assessed value of the taxable property at the time of the adoption of this Constitutino may be authorized by law to increase at any time the amount of said debt three percentum upon such assessed valuation."
Note that the "two-thirds so voting shall be a majority
of the registered voters."
The Supreme Court of Georgia has recently held in an
opinion' not yet published that section 442 of the Civil Code
must be construed consistently therewith, and the requisite
two-thirds of the voters mentioned in said section means
two-thirds of the qualified voters of the county, etc.
The same opinion holds that no person is eneitled to vote
in an election for bonds in a given county whose name does
not appear on any list of the county registrars filed with
the Clerk of the Superior Court of the County, showing
47

the names of the registered voters of the county entitled to vote.
This is true although the name of such voter does appear on the voters' book of the Tax Collector of the county, and although the name of such person was entered in such voters' book within six months of such special bond election, but more than six months before the next ensuing General State election.
It is important to keep in mind that the "Ordinary shall procure a certified list of the registered voters from the legally constituted Board of Registrars, and furnish the same ta the election managers."
The laws regulating elections for incurring debts by a county, or other division, must be strictly followed in every material particular.
Section 61, of the Civil Code, provides for the supplemental registration lists, and the manner of procuring same. Of course, women who have registered within the proper time, that is, six months prio'r to the next General States election, will be eligible to vote, as well as men.
The oath prescribed for voters by sections 36, et. seq. of the Civil Code, must be read by, read to, or mentioned to, the voters when they sign the voters' book.
Trusting that I may have answered all the questions involved, I am,
Sincerely yours, GEO. M. NAPIER, Attarney-General.
'
18

CHILD PLACEMENT LAW REQUIRES INSTITUTIONS, OFFICIALS, TO BE LICENSED BY JUDGE OF THE SUPERIOR COURT.
April 12, 1923. Hon. Rhoda Kaufman,
Secretary State Department of Public Welfare, State Capitol.
Dear Miss Kaufman :-Replying to your inquiry whether persons not licensed by a Judge of the Superior Court may lawfully receive any child in this State for placement or adoption, I beg to say that I have carefully examined and considered the provisions and terms of the Act of 1922, and beg to submit the following:
The caption of the Act (See Georgia Laws 1922, page 72) contains this language: "regulating the bringing into or taking out of the State of children for the purpose of placing-out; requiring persons placing children to comply with regulations and secure a license from the Judge of the Superior Court," etc.
Section 1 of this Act contains sweeping, inclusive and far-reaching language on this subject. It reads:
"Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same, That no person, agency, hospital, maternity home or receive or accept a child under sixteen years 9f age for institution, or official, public or private in this State shall placement or adoption, or place such a child either temporarily or permanently in a home other than the home of the child's relatives within the second degree, or solicit money in behalf of such agency, unless it has received a license from the Judge of the Superior Court of the circuit in which the person or agency has headquarters issued after the passage of this Act in compliance with the provision set forth herein."
In section 3 it is provided with particularity just how application for license for child placing must be filed with the judge of the Superior Court. The clerk of such c<1urt is required to furnish to the State Board of Public Welfare a
49

copy of each child placement license granted by the judge of the Superior Court. It is further provided in section 3 of the Act, that the State Board of Public Welfare "shall carefully ascertain the competency and equipment of each applicant for a child placing license and submit its findings to the judge," etc.
In view of the specific language and the repeated references to the requirement that every person shall be licensed by the judge of the Superior Court before he of she can legally take part in the placement or adoption of any child of this State, the conclusion is inescapable that the legislature cO'Iltemplated the throwing of every possible safeguard around the unfortunate children of the State, and the requirement of known fitness of persons to engage in the finding of homes for such children. The judge of the Superior Court was made the repository of the trust, that the sacred cause of preventing the consequences of misfortune in childh<Yod, to the greatest extent humanly possible, should be especially confided to the powerful court.
All of this was in the power of the legislature, and this Act is particularly clear and comprehensive in its terms.
It is my opinion, therefore, the statute fully controls, and it is beyond the authority of any person who has not applied for license to the Superior Court, and has not been authorized within the terms of the law, as set out in section 3 of said Act, to engage in child placing in this tSate.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
50

ONE COUNTY NOT AUTHORIZED TO LEVY TAX TO CONSTRUCT ALMSHOUSE IN ANOTHER COUNTY.

December 7, 1922.

Hon. Burr Blackburn,

Secretary Bureau of Public Welfare,

State Capitol.

Dear Sir :-Answering your verbal inquiry of yesterday,

relative to the authority of one county to levy taxes for the

construction of alms houses in other counties, I beg to say :

They have no such authority. Section 543 of the Code

provides as follows:



"Upon the recommendation of the grand juries of their respective counties, said ordinaries shall have power and authority to purchase a house and farm in their respective counties, upon which farm they may require all paupers in said counties to labor who are not, from old age and disease, unable to work."

Section 542 of the Code, enumerating the authority of ordinaries, provides as follows:

"They have authority to purchase lands for a poor house, the title thereto vesting in the county, or to rent improve-
ments for such purpose, or to board out the poor, and make all necessary contracts in relation to them."

It appears that the ordinary might board the paupers in the other county, but if he should undertake to buy land and construct buildings for their use, he must buy and build in his own county.
Respectfully submitted. T. R. GRESS, Secretary.

51

JUSTICE'S COURTS. NOT COURTS OF RECORD, IN CONTEMPLATION OF ACT REQUIRING THT JUDGES OF JUVENILE COURTS MAY BE JUDGES OF COURTS OF RECORD.
September 5, 1922. Hon. Burr Blackburn,
Secretary Department of Public Welfare, State Capitol.
Dear Sir :-This acknowledges receipt of yours of the 1st instant, i~ which you say:
"Please give me an opinion as to whether or not a justice of the peace is a court of record, as contemplated in the Juvenile Court law, Park's Code Supplement, 1922, section 900 (00), and oblige."
The question arises, what is a Court of Record? Corpus Juris gives the following, among numerous definitions, of a Court of Record:
"A court whose proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called into question."
"A court of record necessarily requires some duly authorized person to record the proceedings."
Ex. rei. Cregg. 6th l<'ederal Cases.
The controlling decision, however, is from the Supreme Court of our own State, the case of
Davis vs. Wilson, 61 Ga. 389.
wherein Judge Bleckley says:
"Justice Courts are not courts of record; their proceedings are summary and simple; professional skill is not required to conduct them; full and regular pleadings in them are impracticable, and not to be demanded."
The record kept by a justice of the peace of causes filed in his court, as prescribed in Code section 4679 is merely as follows:
"To keep a docket of all causes brought before them; in which must be entered the names of the parties, the returns
52

of the officer, and the entry of the judgment specifying its amount, and the day of its rendition."

and:

'~To carefully file away and label all papers pertaining to any cause, and all fi. fas. and other process returned, after being satisfied, 'nulla bona,' or have otherwise discharged their functions."

It is my opinion, therefore, that a justice court is not ~ court of record, as contemplated in th eAct providing that a juvenile judge may be thejudge of a court of record.
Respectfully submitted. GEO. M. NAPIER, Att<Yrney-General.

BANKING DEPARTMENT WHICH RECEIVES NO MONEY FROM THE STATES SHOULD NEVERTHELESS MAKE A LIMITED REPORT TO BUDGET COMMISSION.
May 2, 1923..
Hon. T. R. Bennett, Supt. of Banks, State Capitol.
My Dear Sir :-Complying with your verbal request of this date for an opinion on the question of whether or not your department would be required to make a report to the Investigating and Budget Commission, created by the Leg-
islature in 1922 (Georgia Laws 1922, page 128), I beg ta
submit the following: You advise us that you receive no monies from the state
and have received none for the three fiscal years immediately preceeding the date on which the reports shall be filed by the several departments, institutions, commissions, etc., of this State. Also that you do not pay to the State
53

any funds received through your departments, and that you do not expect to ask for any change in the financial arrangement in your department.
The purport of the bill creating the Investigating and Budget Commission is that the commission may be furnished information concerning the financial condition of the State and the appropriations necessary for the various departments, institutions, and other agencies of the State. It would seem, therefore, that a report from your department stating simply that you need no money for your department during the biennial period beginning with the next regular session of the General Assembly, and stating, further, that your department has received no' appropriation from the State during the three fiscal years immediately preceeding the date of your report. And, also, that you do not desire any appropriation from the State towards the maintenance of your department.
This, it would seem, should be a satisfactory showing to the Budget Commission.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
COUNTIES BY STATUTE ARE GIVEN PRIORITY OVER ORDINARY DEPOSITORS IN DEFUNCT BANKS.
January 15, 1922.
Hon. T. R. Bennett, Supt. of Banks, State Capitol.
Dear Sir :-I have letter written you by Mr. Livingston Ke.nan of Savannah, Georgia, for reply.
Mr. Kenau states in his letter that a county does not have
54

a priority claim over other depositors of a bank in case of insolvency.
Mr. Kenan cites as his authority the case in the County of 101/244.
I admit at the time this decision was rendered the county did not have a priority claim like the State, but since this decision was rendered the legislature of Georgia has seen fit to give counties a priority claim over all other depositorsies. This right has been given to counties by statute. See Article 7, section 19, of the Acts of 1919.
I call your attention to the following language used by the Supreme Court in the case cited by Mr. Kenon, 101/244:
"Not having this right, in order to obtain a preference over the other depositors it must show some statutory right."
The statutory right is clearly shown in compliance with the above decision by Article 7, section 19, of the Acts af 1919.
It is my opinion that the county is entitled to all of the assessment money if it should take that much to satsify the claim. Other depositors could not share pro rata with the county.
I am herewith returning Mr. Kenan's letter. Yours very truly, GEO. M. NAPIER, Attorney-General.

OPINIONS.
FEMALES-HOW RELIEVED OF PAYMENT OF POLL-TAX.
(This opinion furnished at the request of the Governor.)
April30, 1923.
Mrs. E. B. Chamberlin, President Georgia League of Women Voters, Atlanta, Georgia.
Dear Madam: Your letter to Governor Hardwick, requesting that he obtain from this office, interpreting the Act of 1922, amending the Act conferring the elective franchise upon women, has been handed to me today. His gxcellency, the Governor, directs that I forward reply to you.
After a very careful examination of the terms of the statute (See Georgia Laws 1922, page 21,) I respectfully submit the following:
1st. Under section 2 of the Acts of 1922, above referred to, a poll-tax of one dollar was imposed upon all females between the ages of twenty.:one and sixty years in this State. This tax attached "on the day fixed for the return of property for taxation." This tax, therefore, if not paid, is due for last year.
As repeatedly held by us last year, this tax was "an obligation, and not an option." And this obligation attached to women as well as to men.
But the Act says, in the same section: "Nor shall this tax be required, or demanded of female inhabitants who do not register for voting." Unless women registered for voting in 1922, this tax could not be required or demanded of them.
2d. And it is provided in section 3 of said Act; ''That those female inhabitants who have heretofore registered may avail themselves of the benefits of this Act, and be re-
56

lieved of said tax by applying to the tax collector of .their county, and have their names stricken from said registration books."
3d. Suppose that women did not register for voting in 1922, but now desire t<Y register for voting?
If women registered for voting last year, and have failed to pay the poll-tax, a tax collector would have a legal right to issue a fi. fa. against such defaulters, and before they would be entitled to vote hereafter, th~y would be due to get clear of the books, by paying the tax fi. fa. and costs.
4th. If womn did not register for voting last year when they registered, they would be liable this fall to pay the tax for the year 1923. And under this law, if women wait two years to register to vote they shall be "required to pay all baek taxes due from the time they shall become eligible to vote to the date of their registration.
5th. While section 4 of said Act is not entirely clear in its terms, my opinion is that a fair construction is that women who have had their names stricken from the registration book, or who become eligible to vote by the date of an election in a given year, may register to vote, as mentioned in the preceding paragraph, and they should be required to pay a poll-tax of $1.00 for each year that they had been eligible to register for voting..
Sincerely yours, GEO. M. NAPIER, A tt<Yrney-General.
57

ELECTION EXPENSES-STATEMENT OF WHEN TO BE FILED.
December 13, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to yours of the 8th instant, just releivoo by reason of my absence in Washington City, in the interest of the State, I beg to say regarding the letter of Mr. E. D. Sellers, clerk of the Superior Court of Towns county, which is as follows:
"The candidates who were elected for Representative and Ordinary of this county, have not filed their report of expenses with the clerk of the Superior Court, as required by law; the time limit for such filing has passed. I want to know what steps should be taken in the matter. Awaiting your reply, I remain, Your friend."
Section 671 of the Penal Code makes it a misdemeanor for candidates to fail to publish their campaign expenses in frimary and general elections.
When the time limit for :filing such statements has passed, I know of no provision of the law that allows anything to be done except to prosecute for the failure, as provided in the section above quoted; but, while the time for filing such statement of campaign expenses may be passed to such an extent that the prosecution for failure would be allowed, it seems that the law does not provide that the statement of campaign expenses shall not be filed after such limit has been reached.
No doubt, in most cases, the failure of candidates to file such statements is due to ignorance of he law.
Wit hassurances of high respect and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, A ttO'rney -General.
58

REVOLVING FUND TO PROVIDE COAL-HOW HANDLED UNDER RESOLUTION.
August 30, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-I have the honor to acknowledge receipt of your request for opinion upon the legality and validity of the appropriation contained in the joint resolution of the Ho'Use and Senate, approved August 21, 1922, providing for a revolving wund of $5,000.00 for the purpose of distributing coal.
The text of the resolution is as follows:
"Be it further Resolved, That the sum of $5,000.00 be appropriated to the Railroad Commission to defray the expenses of the commission in the distribution of coal, same to be used as a revolving fund, and revert to the treasury."
While containing no detail as to the expenditure of this sum by the Railroad Commission in the distribution of coal, the purpose of the appropriation, taken in connection with the widely known emergency as respects shipments of coal, is entirely clear. The manner of expending the money is left to the Railroad Commission as then called. But the money is ultimately to come back into the treasury.
In my opinion, the sum of $5,000.00, or so much thereof as may be needed from time to time, is available for the purposes aforesaid under the language and terms of the resolution.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
59

TENNESSEE VETERAN DEMENTED IN GEORGIA-PROCEEDINGS NECESSARY.
September 5, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to the question raised in the letter to yourself from the United States Veterans Bureau, in which it is stated:
"One John Pentecost, a resident of Nashville, County of Davidson, Tennessee, was transferred some time ago from Nashville to Augusta, in a state of dementia. Subsequent to this transfer to that hospital his compensation claim was adjusted, but is now being held up pending certain signatures necessary in the adjustment of this claim, by the man himself or some one competent to transact his immediate personal business. Efforts have been made to have a guardian appointed in Tennessee, but because the man is not now located in this State, this effort has been stopped."
"A point which we wish cleared up, and which we are asking you to refer to the Attorney-General for adjustment, is what will be necessary to swear out a writ of lunacy and have the man tried in Richmond county, which will satisfy the Tennessee law and will serve to adjust the guardianship proposition in this State?"
It is desired, in the event the man is adjudged insane in Georgia, to have a guardian appointed for him in Tennessee, under the Tennessee law.
In my opinion, the course to be pursued is for application to be made under the terms of the law in such cases made and provided, for a commission to inquire into the mental capacity of the party in question. Should this man have relatives in Georgia, notice is to be served on three of the nearest of such relatives, but if there are no such relatives within the State, the hearing can proceed upon notice being given to the alleged imbecile himself.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
60

UNEXPIRED TERM OF JUDGE J. T. PENDLETON-LENGTH OF.
September 2, 1922.
Ron Thomas W. Hardwick, Governor of eGorgia, State Capitol.
Dear Governor Hardwick :-Replying to your request for an immediate opinion as to the length of the term you are empowered, under the law, to commission the successor to Honorable John T. Pendleton, judge of the Superior Court of the Atlanta circuit, who has tendered his resignation, I beg to say that this matter is controlled by section 4834 of the Code, which provides as follows:
"* * * * * * * Every vacancy occasioned by death,
resignation or other cause, shall be filled by appointment of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected."
Since more than thirty days will elapse between the appointment to the next general election, the successor to Judge Uendleton will need to be elected in the approaching general election, and the person so elected would be entitled to tak offic on January 1st, 1923. Therefore, in my opinion, Your Excellency is authorized to appoint a successor to Judge Pendleton, who will fill the office until January 1st; 1923, and until his successor is elected and qualified.
I have the honor to be, with best wishes and high regards, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
61

JUSTICES' COURTS-NOT MOVABLE FROM PLACE TO PLACE.
October 12, 1922.
Hon. Tho1nas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick: -Replying to your inquiry, as to the rights and qualifications of a justice of the peace, in one of the counties of this State, to' hold court in another district of his county, that is to say, in a different district from the one he is commissioned to serve in, the following is submitted for consideration.
Section 4667, of the Civil Code, provides:
"Their civil jurisdiction extends over persons resident of their respective districts, and itinerant persons, and to persons of other districts in certain particular cases provided for in this Code."
And section 4669 provides :
"When a justice of the peace is disqualified from presiding, and there is no other justice of the peace in his district who is qualified, any justice of the peace of the county is qualified to issue all process and to preside in his district; and if a justice of the peace is sued under sudh circumstances, the suit may be located in any adjoining district. Any justice or notary ex-officio justice of the peace may preside in anv district of their county in all cases when the justice or notary of such district is disqualified."
Judgment re'ndered by justice of the peace out of his district is void unless he presides in place of a disqualified justice, or notary.
3d Appeals 160. "A central and convenient place must be selected for holding justices' courts, and judgment rendered elsewhere is void." 70 Ga. 685. "If judgment is rendered by the court at a place wheru it could not lawfully sit, the judgment is void." 107 Georgia 230.
62

The Constitution declares that justices of the peace shall "sit at fixed times and places." See:
Civil Code, seetion 6524.
A justice court is, therefore, not a peripatetic establishment to be moved at the will of the justice; but is held strictly to its jurisdictional limits, its own individual district-and to a fixed time and place within the district.
Respectfully and sincerely yours, GEO. M. NAPIER, Attorney-General.
SPECIAL ELECTION FOR GOVERNOR NOT NECESSARY WHERE GOVERNOR RESIGNS LESS THAN SIX MONTHS PRIOR TO REGULAR ELECTION.
October 13, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In response to your letter, in which you state:
"Will you please advise me whether or not, if I should resign as Governor at any time, prior to the next general election, on November 7th, 1922, would it be necessary to have a special election to fill such vacancy? Will it be necessary, in that event, to call either a special election or a special session of the General Assembly?"
After a careful examination of the law, I beg to submit the following:
The Constitutional provisions respecting the filling of the vacancy when the office of Governor is vacated by death, resignation or otherwise, is found in Code sections 6477 and 6478, and are as follows:
"6477: Death, resignation or disability of Governor. In case of the death, resignation or disability of the Governor,
63

the president of the Senate shall exercise executive powers of the government until such disability be removed, or a successor is elected or disability of the president of the Senate, the speaker of the House of Representatives, shall exercise the executive powers of the government, until the removal of the disability, or the election and qualification ,of the Governor."
"6478: Unexpired terms. The General Assembly shall have power to provide by law for filling unexpired terms by special elections."
The legislative enactment under the Constitutional au-
thority is contained in section 96 of the Political Code, which
reads as follows:
"96: Vacancy; How Filled. Whenever a vacancy shall occur in the office of Governor, by death, resignation, or otherwise, the president of the Senate, or the speaker of the House of Representatives, as the case may be, exercising the executive powers of the government, as provided by the eighth paragraph of the first section, of the fifth Article to the Constitution, of this State, shall issue his proclamation, immediately upon his assumption of the duties of the executive, ordering a special election for Governor, to fill the vacancy so occasioned, for the unexpired term, to take place at a time not less than thirty nor more than sixty days from the date of such proclamation; and shall convoke the General Assembly in extra session to receive the returns and declare the result of such special election, or to elect a Governor in case no person shall receive a majority of the whole number of votes cast at such special election, as provided in the Constitution of this State. Said extra session of the General Assembly to convene within fifteen days from the date of such special election: Provided, nevertheless, that preceding the time prescribed by law for the regular election for Governor, there shall be no special election, but the president of the Senate or speaker of the House of Representatives, as the case may be, shall exercise executive powers of the government until such vacancy is filled by a regular election."
The proviso, in the concluding portion of the section above
quoted, controls the matter.
"If such vacancy occurs within six months next preceding the time prescribed by law for the regular election of gov. ernor, there shall be no special election."
The next regular election for Governor will be held on
November 7th, 1922. If the present Governor should re-
64

sign at any date between May 7th, 1922, and November 7th, 1922, no special election for Governor could be legaJ!y held.
Had the present Governor resigned, for instance, one day prior to a date six months previous to the regular election for Governor, a special election would have been necessary.
In contemplation of law, as I understant the statute, there would be no more need of a special election for Governor, in case of the Governor's resignation within less than six months of the election for Govern<Yr, than if he should resign one day before the election.
In either event, the "President of the Senate or the speaker of the House of Representatives, as the case may be, shall exercise the executive powers of the government until such vacancy is filled by a regular election."
And, manifestly, unless a special election is held, there would be no need or occasion for the convening of the General Assembly in special session, as there would be no returns to receive, and no result to declare.
The obvious purpose of the legislature was to provide for an elected governor, if the time of service by the president of the Senate, or the speaker of the House of Representativs, was to be of considerable length; otherwise, it was considered unnecessary to incur the expense of a special election, and of an extra session of the General Assembly.
In my opinion, should you see fit to resign the office of GovernOT, at any time previous to the election to be held November 7th, next, no special election for Governor would have to be called, and consequently no extra session of the General Assembly would have to be held.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
65

MEMBER OF GENERAL ASSEMBLY INELIGIBLE TO APPOINTMENT ON STATE BOARD OF PHARMACY.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to your favor of the fourteenth instant, requesting opinion, whether a member of the present General Assembly of Georgia is eligible to appointment as a member of the State Board of Pharmacy.
The question immediately arises, would the appointee come within the inhibition contained in the Constitutional provision found in Code section 6420, which is as follows:
"No person holding a military commission, or other appointment or office having any emolument or compensation annexed thereto, under this tSate, or the United States, or either of them, except justices of the peace and officers of the militia, nor any defaulter for public money or for any legal taxes required of him shall have a seat in either house; nor shall any senator or representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected."
Has the office of a member of the State Board of Pharmacy any "emolument annexed thereto?"
Emolument is thus defined by Black's Law Dictionary: 'That which is received as a compensation for services, or which is annexed to the possession of an office, as salary, fees and perquisites."
Section 1731 of the Code is as follows:
"All the fees for examinations and licenses and one-half of the fines collected from convictions under this chapter, shall be paid to the Board of Pharmacy, to defray the expenses of the same, and as compensation for their services."
It clearly appears then that membership on this Board of Pharmacy is an office, or appointment, to which emolu-
66

ment is annexed, and for services in which compensation is paid.
The next question which arises is involved in the following language of the statute:
"Nor shall any such Senator or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office, etc., during the time for which he shall have been elected." (Italics ours.)
Upon his taking the oath as such Representative or Sen.ator of this State, has qualified as such.
"The members of the General Assembly shall be elected for two years, and shall serve until (the time fixed by law
for the convening of the next General Assembly. * * * *"
Now, what is the time for which he has been elected? Code section 6415, which is Article 3, section 4, paragraph 1, of the Constitution of the State of Georgia, provides:
"Members of the General Assembly shall be elected for two yea-rs, and shall serve until the time fixed by law for the convening of the next General Assembly."
The phrase "during the time for which he shall be elected," contained in Code section 6420, hereinbefore quoted, is as effective as if the statute read 'for two years fro'm the time he qualifies by taking the oath as such, until the convening of the new legislature, elected two years after such Representative was elected."
I take the liberty of citing, in this connection, an exhaustive opinion rendered by Honorable William A. Little, Attorney-General to Governor W. J. Northern, on the question whether members of the General Assembly were eligible to appointment on a commission to codify the laws of the State.
Only the last paragraph of the opinion is quoted, which is as follows:
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"It is my conclusion that a comm1ss10n to revise and codify the laws of this State or perform other duties with like characteristics under an Act of the General Assembly, will be public officers, and the Constitutional provision prohibiting the appointment of a member of the General Assembly to 'any office or appointment having any emolument annexed thereto, during the term for which he shall have been elected,' includes this class of offices, and that no memmer of the General Assembly is eligible to appointment as one of such a commission during the time for which he was
. elected."
Likewise, there is here cited the concluding paragraph of the opinion of Honorable John C. Hart, Attorney-General, rendered to Governor Hoke Smith, April 27th, 1909:
In this instance the resignation of Honorable C. Murphy Candler, representative-elect from DeKalb County, was held admissible before his qualification as such Representative in order that he might accept the office of railroad commissioner. Judge Hart said:
"The evil which the Constitution had in mind in inhibiting the appointment by the Governor or election by the General Assembly to office, was to prevent members from creating offices hoping to be elected, or appointed thereunto, hence he was made ineligible 'after his qualification.' Qualification means to take the oath of office; when he does this the Constitution declares that he shall not be appointed by the Governor nor elected by the General Assembly to any office during the time for which he is elected, but there is no inhibition in the Constitution to his appointment prior to his qualification. On the contrary, there is the express provision limiting his ineligibility 'after his qualification as such.'"
It is needless to discuss the various motives which might have prompted the makers of our Constitution to write the inhibition now under consideration into the Supreme State law, although it would be interesting to present some that are borne out by history.
It is my opinion that any member of the General Assembly is ineligible to an appointment as a member of the
68

State Board of Pharmacy during the time for which such member of the General Assembly was elected.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
PEACH COUNTY, ELECTION ON-POWERS OF GOVERNOR AS TO MAKING PROCLAMATION.
November 28, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-This acknowledges receipt of yours of the 27th instant, in which you say:
"I am enclosing you herein a certificate just received by me from the Secretary of State, relating to the result of the election, so far as same relates to the constitutional amendment proposing to create the County of Peach.
"Please examine the statutes and precedents, and advise me at the earliest possible moment:
"1. Is the certificate of the Secretary of State such a certificate as I can base a proclamation upon? In other words, is the certificate sufficiently certain to make the issuance of proclamation by the Governor a purely ministerial and adminisratice act?
"2. Does the Governor act in a purely ministerial capacity in this matter?
"3. Has the Governor any power with respect to rejecting returns, passing on contests relating to that and similar questions, or is he simply bound to follow the certificate of the Secretary of State?
"4. Exactly what are the powers and duties of the Governor with respect to this matter "
The letter of HonorableS. G. McLendon, which I quote in part only, contains the following:
"I submit to you the detailed statement, which I have had compared with the original records in this office, and
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which I find to be fully corroborated by the original consolidated returns. The contention is that the irregularities complained of will cause the throwing out of 3,857 votes cast for the creating of Peach county and will throw out 8,958 votes cast against the amendment creating Peach county, in which it affirmatively appears that the returns are not legally certified.
"It further appears that in cases where returns are not accompanied by papers required by law, where there is nothing to show whether they were legally certified, or the election legally held held, there should be thrown out of the votes county for Peach county 1,192 votes, and in the same class of counties, of the votes cast against the Peach county amendment there should be disregarded 4,007 votes
"It further appears that in those counties whose consolidated returns were based on illegally held elections, at precincts, there should be thrown out of the vote cast for Peach county 300 votes and of the vote cast against Peach county 956 votes.
"To sum up the differences on the assumption that the objections are real and substantial and of such character as to invalidate the returns, the total decrease in the vote for Peach county would be 5,349 votes, leaving the actual and legal vote cast for the ratification of the amendment creating Peach county, 24,493 votes. The deductions made for the same reasons in the vote cast against the ratification of the amendment creating Peach county would be 13,931 votes, leaving a total legally cast votes against the ratification 22,655 votes.
"If these objections are sound and valid, then there was a majority for the ratification of the amendment creating the County of Peach of 1,848 votes."
Answering categorically, I have the honor to submit:
1st. While not decisive, in the certificate of the Secretary
of State, he states "there should be thrown out" so many
votes cast for Peach county, and "these should be disregard-
ed," so many votes cast against Peach county. And Secre-
tary McLendon ados, "It further appears that in those coun-
ties whose consolidated returns were based on illegally held
elections, at precincts, there should be thrown out of the
votes cast for Peach county 300 votes, and of the votes cast
against Peach county 986 votes." The Secretary of State
further says: "To sum up the differences on the assump-
tion that the objections are real and substantial and of
such character as to invalidate the returns * * * * * **
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leaving the actual and legal vote cast for the ratification af
the amendment creating Peach, 24,493 votes * * * * * * * leaving the total legally cast vote against the ratifi-
cation 22,655 votes," He concludes: "If these objections are sound and valid, then there was a majority for the ratification of the amendment creating the County of Peach of 1,848 votes."
In my opinion, the finding of the Secretary of State as above set out is hardly certain and definite enough for the Executive to issue a positive proclamation upon. The Act provides for the submission of this question (See Georgia Laws 1922, page 35,) and has this to say:
"If a majority of the electors qualified to vote for members of the General Assembly voting thereon shall vote for the ratification of said proposed amendment, then the Governor shall, when he ascertains the same from the Secretary of State. to whom the returns of said election shall be referred in the manner as in cases of elections for members of the General Assembly to count and ascertain results, issue his proclamation for one insertion in one daily paper of this State, announcing such results, and declaring the amendment ratified."
The Secretary of State, acting in a purely ministerial capacity, in effect, shows that, after sifting out the irregularly and illegally cast votes, the result is in favor of Peach county. And yet, he states this with qualifications. The Governor "ascertains" the result from the Secretary of State.
It is my opinion that, whatever proclamation Your Excellency issues will be a purely ministerial and administrative act.
2d. The Governor does act in a purely ministerial capacity in this matter, in my judgment.
3d. The Governor appears under the law to have no power with respect to rejecting r.eturns, passing on contests relating to that and similar questions; and the law indicates that he is simply bound to follow the certificate of the Secretary of State.
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In the case of
Hammond vs. Clark, 136th Ga. 319.
Mr. Justice Lumpkin, in the opinion, held:
"The Constitution is the supreme State law. It provides how it may be amended. It makes no provision for exclusive determination by the Governor as to whether an amendment has been made in the constitutional method, and for the issuance by him of a binding proclamation to that effect. Such a proclamation may be both useful and proper, in order to inform the people whether or not a change has been made in the fundamental law, but the Constitution
did not make it conclusive on that subject. * * * * *"
"In the absence of some other exclusive method of determination provided by the Constitution, the weight of authority is to the effect that whether an amendment has been properly adopted according to the requirements of the existing Constitution is a judicial question."
4th. The fourth question submitted by Your Excellency engenders both difficulties and doubts. The Governor would have the power to verify the findings of the Secretary of State, if he cared to have this done, and yet, the law does not seem to make it his duty. He certainly has the authority to depend upon the correctness of the certificate of the Secretary of State.
It appears that the most practical soluticm, and which is indicated to' be entirely legal, is for the ,Executive proclamation to state the findings of the Secretary of State, assuming that he has "counted and ascertained its results," as he himself assumes. This would have the effect of bringing the matter to a situation where it will be a judicial question of State-wide importance and may be finally determined. In other words, it appears that the Governor would be justified, despite what may seem the uncertainty ofthe Secretary of State's certificate, to issue his proclamation to the effect that, upon the certificate of the Secretary of State, who has found that irregularities and illegal votes be disregarded, the result was as stated by the Secretary of State; and, therefore, the amendment is held to have carried. The
72

courts will get the matter for final investigation and review, and will do so, apparently, without prejudice to any interest.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
OFFICE OF MEMBER OF BOND COMMISSION OF ELBERT COUNTY VACATED WHEN SUCH MEMBER REMOVES FROM COUNTY OR FAILS TO ATTEND MEETINGS-GOYERNOR MAY APPOINT SUCCESSOR.
February 6, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-I have the honor to reply to your letter of the fifth instant, to which is attached a petition from the Chairman of the Bond Commission of Elbert County, addressed to Your Excellency.
The petition recites among various other. facts, that one of the members of the Bond Commission of Elbert County has failed and refused to perform the duties of his office.
The petition states:
"The Bond Committee can do nothing except by three affirmative votes. C. P. Hairston will not vote affirmatively for the Petersburg Road except that it must connect with Calhoun Falls, S. C.
"That J. A. Starke, while retaining his legal residence in Elbert has been engaged in road construction in North Carolina since April 1922, to January 1923, and is now engaged in road construction in Wilkes County, making headquarters near Washington, Ga.
"That he has attended but one meeting since February 8, 1922, though notified of special meetings, and well knowing that regular meetings are held on first Tuesday in each month."
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The questions raised are: 1st : Has the office of this member of the Bond Commission of Elbert County been vacated by abandonment and by his failure to perform the duties of the office, or by either? 2nd: What proceedings should be had before such office is declared vacated, and what notice or hearing should be given said member? Code section 264 provides the manner in which all offices in this State are vacated. At the seventh paragraph of this section, it says :
"By abandoning the office and ceasing to perform the duties, or by either."
Mecham, in The Law of Offices and Office!l.'s, says:
"Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet, if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it."
Lord Coke held that non-user was one of the three methods by which an incumbent would forfeit his office as "where an officer is concerned in the administration of justice, or of the Commonwealth, and neglects to attend his duties."
Another basis of forfeiture of the office is "where he is bound to attend upon request, and refuses."
An office may be terminated by abandonment. Abandonment means failure to perform the duties of the office:
People vs. Hartwell, 67 Cal. 11. People vs. Spencer, 101 Ill. App. 61. State vs. Allen, 21 Ind. 516. Colton vs. Beardsley, 38 Barb. 29. Barber vs. United States, 17 Ct/Cl. 149.
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The determination of the question whether an officer has abandoned his office is dependent upon his overt acts, rather than upon his declared intentions:
Attorney-General vs. Maybury, 141 Mich. 31. Barber vs. United States, supra.
"While an abandonment is clearly a cause for a forfeiture, it is ordinarily held that it does not of itself create a completed vacancy, but that a judicial determination of the fact is necessary to render it conclusive!'
Mechem, Law of Officers, etc. Sec. 436.
How is a completed vacancy to be established, or determined? By whom can the judgment of ouster be pronounced?
In the case of Jones, Ordinary vs. Collier, decided in our Supreme Court, 65th Georgia 553, judgment of the Ordinary, while sitting for County purposes, was valid, the Ordinary-
"Fniding that the County Treasurer had absconded, thereby abandoning his office, and ceasing to perform its duties, 'declared the samfi! vacant, and appointed a successor."
The appOinting power being in the Governor, it would seem. that upon the Governor would devolve the power of removal for cause.
Code section 155 declares :
"He shall appoint all officers and fill all vacancies, unless otherwise prescribed by the Constitution and laws. All appointments to discharge a public duty, by the General Assembly, or by the Governor under it~S authority, are declared to be offices within the meaning of the Constitution."
As to the procedure to determine whether the office has been abandoned :
It has been held in Mechem's Public Offices and Officers, section 454 :
"x x x x x x x where the appointment or election is made for a definite term or during good behavior, and the
75

.
removal is to be for cause, it is now clearly established by the great weight of authority, that the power of removal cannot, except by clear statutory authority be exercised without notice and hearing, but that the existence of the cause, for which the power is to be exercised, must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard in his defense."
In the case of:
Burney vs. Mayor, et. al. 24-7, the court in a head noie decision held:
"Where a municipal officer, as in this case, is the incumbent of an office established by law, with a prescribed tenure, and is not merely an appointee holding at the pleasure of the governing power, in order that the Act of a motion may have the force and effect of a judgment, it is a necessary prerequisite that notice shall first have been given to the delinquent official of the ground, or cause, for his removal and an opportunity for hearing granted him thereon."
The following is cited approvingly in the Coleman case,
103 Georgia, page 460:
"Where an officer holds his office for a certain number of years, 'If he shall so long behave himself well,' he cannot be removed, even for misbehavior, without notice and a hearing. So, where he is appointed for a fixed term, and removable only for cause, he can be removed only upon charges, notice, and an opportunity to be heard. Troup on Public Officers, Section 364."
"Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. But where the appointment is during good behavior, or where the removal can only be for certain specified causes, the power of removal cannot be exercised, unless there be a formulated charge against the officers, notice to him of the accusation, and a hearing of the evidence in support of the charge and an opportunity given to the party of making defense."
"It may, therefore, be considered as settled beyond all doubt or peradventure that a public officer who has, under the law a fixed term of office, and who is removable for definite and specified causes, cannot be removed without notice and a hearing on the charge or charges preferred against him, with an opportunity to make defence." .
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My conclusion is that the executive, having the power of appointing to public office in this State, has the power and authority to remove for the causes named in the law. And that reasonable notice of the time and place of hearing should be given the official who~e conduct is under review, that a copy of the documents and charges to be considered should be served upon him, in order that he may have a full and complete opportunity to be heard in his own defence.
As to the length of time of the notice in similar cases, ten days has generally been held sufficient.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
COMMISSIONERS OF COUNTY, WHERE EACH COMMISSIONER REPRESENTS A PARTICULAR DISTRIST-NOT QUALIFIED, AFTER REMOVAL FROM DISTRICT WHICH HE WAS ELECTED TO REPRESENT.
May 9, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
My Dear Governor :-In response to 'your request of this date, in reference to the question presented in the letter of Honorable J. N. Mayo, of Camilla, Georgia, I have the honor to submit the following:
Mr. Mayo submits a question whether one of the County Commissioners of Mitchell County, who has removed from the District in which he resided when elected as a member of the Board of County Commissioners, has vacated his office as a member of such Board, and whether such Commissioner is legally qualified to participate in the
77

meetings of the Board, and to vote on questions coming before it.
From Georgia Laws 1915, at page 309, I extract the following reference to a member of the Board of Commissioners of Mitchell County:
"Said County is hereby divided into six districts as follows: The 1173 Militia District shall compose one distrist; the 1194 Militia District shall compose one district; the 1548 and 1603 Militia Districts shall compose one district; the 791, and 1699 Militia Districts shall compose one district; the 625 and 1611 Militia Districts shall compose one district, and there shall be elected one commissioner from each of said districts, making six commissioners in all for said county."
The situation is comparable to a member of the State Senate; if a member from one district should move out of such district into an adjoining County, which is a part of another Senatorial District, he would, by such removal, vacate his office as a member of the Senate, and would not be qualified to participate, as a member of that body.
Since the law requires that the Board of County Commissioners of Mitchell County shall be composed of persons representing certain sub-divisions of the County, composed of certain specified militia districts, should a member of the Board remove from one of these districts of the County into another, he would, in my opinion, thereby vacate his office, and become ineligible to participate in any manner in the proc~edings of the Board.
Respectfully submitted, CEO. M. NAPIER, Attorney-GeneraL
78

BULLETINS MAY BE PUBLISHED BY THE STATE HIGHWAY BOARD.
December 18, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-This is in reply to yours of the 16th instant, accompanied by letter of Honorable John N. Holder, Chairman of the State Highway Bdard, to Your Excellency, in which the following is set out:
"In section 3, paragraph 3, of the Acts of 1919, establishing the State Highway Department of Georgia, you will find this language;-'to publish bulletins.'"
"x x x x x x x x x x, to collect statistics, and useful data concerning highway matters in other States, to publish bulletins, X X X X X X X X X x.''
"The State Highway Board has been considering the advisability of publishing each month a bulletin showing the operations and expendituresof the State Highway Department for that month, and giving to the public such other official information and road data as the Board may think advisable."
"The Board is confident that enough advertisements can be procured to pay the expeJises of the publication of this monthly bulletin. In North Carolina the monthly publication of the State Highway Commission is printed without expense to the State.''
"The Board respectfully requests a statement from you as to the advisability and legality of issuing this publication. Please let me hear from you at y;our earliest c~ venience."
This language manifests legislative intent that the Highway Board shall conguct, in a sense, a work of education-that is to say, propaganda-by collecting data regarding road building, and by publishing bulletins.
In my opinion, therefore, the Board is fully authorized to publish the bulletins deemed necessary. If it can, by securing and publishing advertisements in the bulletins sufficient to cover the expenses of such publication, save all
79

costs to the State, this will be an example of efficiency and economy of administration which, it may be properly observed, will be worthy of commendation.
Sincerely yours, GEO. M. NAPIER, Attorney-General.

PUBLIC SERVICE COMMISSION-EXPENSES INCURRED BY ITS MEMBERS-RESOLUTION OF GENERAL ASSEMBLY NECESSARY TO REIMBURSE.

January 17, 1923.

Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-Responding to your request for opinion, based on the letter of Judge E. J. Reagan, Special Attorney for the Georgia Public Service Commission, in which letter, Judge Reagan states that on account of his personal connection with the Commission he desires that you direct this office to furnish opinion on the subject therein stated, in which the following statements are made:

"I have been requested by the Commission to secure

your opinion as to refunding some expense heertofore in-

curred by the Commissioners from their personal funds,

being prior to the date of approval of the so-called Brant-

ley Bill. The facts are these: In the Spring of 1921, the

Commission decided that it was very necessary to make

an audit of the books of the Georgia Railway & Power

Company. The contingent fund then provided for such

investigations by the Commission was inadequate to take

care of such expenses, but the Commission reached the con-
clusion that it was of sufficient importance to justify them in paying said expense from their personal funds, which

t
"'

was done in the sum of $2,600.00, or $50Q.OO each."

"The legislature, at its session in 1922, passed an Act,

chaJ1ging the method of financing the cost of the Com-

mission, whereby a considerable increase was provided for

1uch expense as above referred to. The question is, has

80

the Commission the right, under the law to reimburse its members for said expenditure of $500.00 each, as above
referred to, .from funds derived from the Act passed in 1922, and subsequent to the expenditure of said sum for said audit?"

Regarding the foregoing questions, I find upon investigation that previous to the Act of 1921 there was a contingent fund provided for the use of the Commission, out of which to pay for printing, and incidental expenses, but this fund was entirely insufficient to meet the expenses for making the audit of the books of the Georgia Railway & Power Company, referred to in the foregoing letter; thereupon, the members of the Commission furnished the necessary amount of money to defray the expense of this audit.
If the money had been available in the contingent fund, or had come into that particular fund shortly after the expenditure had been made, it would have been lawful for the Commission to have reimbursed the members for the respective amounts advanced by them.
Meacham's Law of Public Offices and Officers says at section 877:

"Where a public officer in the due performance of his duty, has been expressly or impliedly required by law to
incur expense :on the public account, not covered by his salary, or commissions, not attributable to his own neglect or default, the reasonable and proper amount thereof forms a legitimate charge against the public, for which he should be reimbursed."

Clearly, it is right and just that the members of the

Commission should be refunded the amounts advanced by

them to secure the making of the audit referred to, which,

in their discretion, was necessary for the welfare and dig-

nity of the State.



Since this money did not become available until the pas-

sage of the new Act, changing the method of providing

funds for the maintenance and expenses of the Commission,

there appears to be no statute authorizing the members of

the Commission to reimburse themselves out of the funds

81

provided by the Act of 1922, for the support of the Glommission.
In my opinion, the proper plan is for a Resolution to be passed by the General Assembly, at its next Session, recit~ng the fact of the furnishing of 1.lhis money by the meiii!bers of the Commission, and authorizing the repayment to the members of the respective amounts advanced by them, out of the monies raised under the present plan of raising funds for the support of the Commission.
While manifestly right and just that the money so advanced by the members of the Commission should be repaid to them, it would seem to be an unfortunate precedent to authorize the reimbursement of those officials in any other manner except by legislative resolution, or authority, which could have been adopted at its last session, or which may be adopted at any time thereafter.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
JUSTICE OF PEACE-VACANCIES IN OFFICE ARE FILLED BY ELECTION.
December 18, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to the attached letter of Honorable T. M. Morgan, Ordinary of Bryan County, to Your Excellency, in which, he says:
"In the Georgia laws of 1920, Act 432, pages 454 to 459, creating Board of Commissioners for Bryan County, and defining their duties, etc., there are, at this time, vacancies in the office of _.Justices of the Peace in Bryan County!, and under section 12, of the Act creating the Board of Commis-
82

sioners, I think that the power to fill these vacancies are delegated to such Commissioners; in fact all County matters, and for this reason, I desire an opinion on this matter from the Honorable Attorney-General, of this State, and would ask that you kindly have him furnish me such :opinion."
The manner of filling vancancies in the office of Justice of the Peace is controlled by Code sections 4658, et. seq. The law requires an election to be held to fill a vacancy in the office of Justice of the Peace.
An examination of the Act referred to, by Judge Morgan shows that no attempt is made to repeal the general statute on this subject.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
TRUSTEES OF SCHOOLS CANNOT CONTRACT WITH THEMSELVES-LAW OPPOSED TO DUAL AGENCY.
October 11, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to yours of thE sixth instant, which has not been replied to earlier becausE of my absence on the Chattanooga trip concerning the condemnation of the W. & A. R. R. property by the City of Chattanooga.
An investigation of the facts in the matter of the cantract between the School of Technology and a corporation in which one of the Trustees of the School of Technologty was a stockholder, shows that such a contract was made whereby a commission would be paid for architectural service by said corporation to render all of such architectural
83

service for a period of five years, in the expansive development of that institution.
The question immediately presents itself: Has an agent the right to sell to himself on behalf of his principal? Or to contract with himself, wherby he, the agent, will receive money?
The law opposes what is termed "dual agency." It is manifestly contrary to public policy for Trustees or agents of any character to have dealings between themselves, in a fiduciary character, and corporations or partnerships wherein they hold stock or have interests. The objection deepens when a trustee of a public, or eleemosnary, in stitution deals with himself so that he receives profit to himself, or to his corporation or partnership.
Section 3582 of the Civil Code says:
"3582. Agent cannot buy or sell for himself. Without the express consent of the principal after a full knowledge of all the facts, an agent employed to sell cannot be himself the purchaser; and an agent to buy cannot himself be the seller."
Code Section 3583, provides:
"3583. Personal profit: The agent must not make a personal profit from his principal's property; for all such he is bound to account."
Public agents fall within these sections: Macon vs. Huff, 60 Ga. 228.
In his strong opinion Judge Nisbet in: Harrison vs. McHenry, 9 Ga. 164, said:
"The current of Georgia policy, both in legislative and judicial channels, runs steadily in one direction and to one point, that no man who is agent or trustee, :f'p'r another, whether a private or public agent or trustee, shall have the opportunity to .be led into temptation to make profit out of the business of others entrusted to his care by bargaining with himself directly or indirectly in respect to that business."
Zinn's Leading Cases on Trusts reports at page 76 a great
84

case before the House of Lords, in which the C}hancellor held that a director of a railroad company could not contract with the Company.
In the case of Macon vs. Huff, cited supra., it was held by the Court:
"That it is wholly unreasonable, and against all public policy, therefore, that he (the Mayor) be permitted to make a contract to do what his official duty makes him superintend and oversee and holds him responsible for."
Our Supreme Court held in the case of: Augusta N. Stores vs. Forlaw, 124 Ga. 262.
"The relation of principal and agent is a ftduciary one, and the latter cannot make advantage and pro:fit for himself out of the relationship to the injury of his principal."
Our own Code, codifying an Act of 1850, expressly declares that no Sheriff, or other officer, discharging a similar duty, shall purchase at his own sale. Suc;b sale is public, duly advertised, yet the officer authorized to sell cannot legally buy. How much stronger is the inhibition in morals, as well as in law, where the dealings between a trustee and himself as an officer in a corporation, where the trustee would have opportunity to be led into the temptation to make profit out of the business of others entrusted to his care by bargaining with himself in respect to that business.
Our own statutes are so strong, and the opinions of our own Court of last resort so clear, in prohibiting such transactions, that it is unnecessary to cite others of foreign jurisdictions, or from the courts of other States.
It is my opinion, in conclusion, that such dealings between a Trustee of the Georgia School of Technology, and a corporation in which he is a stockholder and an officer, are illegal, and unenforceable, contrary to public policy, and void, in the face of express statutes and decisions of our highest courts.
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With assurance of highest respect and regard. Respectfully submitted, GEO. M. NAPIER, Attorney-General.
COUNTY COMMISSIONERS OF GREENE COUNTY ACTS LEGAL, THOUGH HOLDING OVER METHOD OF FILLING VACANCIES IN BOARD.
January 10, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to your letter of the 2nd, instant, to which was attached letter of Honorable F. B. Shipp, Ordinary of Greene County, as follows:
"Under the Acts of the Georgia Legislature of 1914, five Commissioners for Greene Cpunty were elected, and assumed the duties of the office on January 1, 1915." "Said Board, assuming that they were County officers and came within the provisions of the Constitutional Amendment of 1914, held office for four years:'
"Their successors, the present Board, will complete a two-year term tomorrow, December 31, 1922, and it has been suggested to me by a number of citizens of this County, that their successors should have been elected at the last general election, and that a vancancy will oceur on January 1, 1923/'
"The opinion seems to be prevalent that it is the duty of the Ordinary to order a special election to fill said vacancy."
"I will be grateful, therefore, if you will kindly infoll'm me:
"1st: Will such a vacancy occur? "2nd: If so, whose duty is it to call an election to fill same? "3rd: If it is the duty of the Ordinary, should he call said election under the provisions of the law relating to vacancies in the office of the Clerk of the Superior Courts? "You will observe that the Act creating the Board of Commissioners for Greene County provides that in the event of the death or resignation of one of the five mem-
86

hers, the remammg members are empowered to fill such vacancy by selecting some qualified person to serve until the next election, but there is no provision in said Act, nor anywhere in the Code of Georgia, so far as I have been able to find, for filling a vacancy such as the one in question."
"Post Script: "In my haste yesterday, I got the facts a little awry. The successors of the first Board went into office January, 1917, and served until January 1, 1921. It has little, if any, bearing on the main question, but I wanted to keep the record straight."
Under the Act of 1907 (See Georgia Laws 1907, page 297) Greene County was served by one County Commissioner. Section 1 of the Act provided that, in case of necessity of calling an election to fill a vacancy in the office of Commissioner, the rules should be followed as apply to the election of Clerk of the Superior Court.
By Act of the General Assembly in 1914 (See Georgia Laws 1914, page 288) the Act of 1907 was amended by striking sections 1 and 2 of said Act of 1907.
It is provided in section 1, of the Act of 1914, aforesaid, that should a vacancy in the Board of five Commissioners occur by death, resignation, or otherwise, the remaining members are empowered to fill said vacancy.
No provision is made for the method of election to fill vacancies.
So far, after most diligent search, I have found no particular statute providing for elections to fill vacancies in the office of the County Commissioners, save the general law to be found in Code section 4796 (5) which gives the Ordinaries of the State original and exclusive jurisdiction "In supplying, by appointment, all vacancies in County offices, and in ordering elections to fill them."
The melfuod of ordering elections to fill all vacancies in the County offices named in the Code follow the method prescribed in the provisions for elections to fill vacancies in the office of the Clerk of the Superior Court, as set out in Code section 4881.
It appears that no such vacancy exists in the member-
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ship of the Board of Commissioners of Greene County as
will authorize the present Board to appoint.
The Act of 1914, page 289 provides that "Said Commis-
sioners shall hold office from the first day of January, 1915,
for two years, and until their successors are elected and
qualified."
If a new Board qualified on January 1, 1917, and held
until January 1, 1921, it completed a four year term of
office, and from January 1, 1921 to 1923, would make another term of two years. It would have been legal and regular then to have held an election last Fall, for successors to the present members. It appears, however, that the
Acts of the Board, while holding over, are legal in everY'
way.
"Where the legislature creates an office and provides for the appointment of an officer to fill it for a given number
of years, the incumbent will hold over beyond the fixed
terms, until his successor is commissioned and qualified."
Walker vs. Ferrell, 58 Ga. 572.
Shackleford vs. West, 138 Ga. 159. It would seem that vacancies now exist in the membership of the Greene County Board of Commissioners, in the
sense that an election was not held for members of the Board to begin their terms of office in January 1919, and
with the officers holding over since that time.
"The office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it; and conversely, it is vacant, in the eye of the law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event. State vs. Harrison, 113 Ind. 234 (16 N. E. 384, 3 Am. St. R. 663), when there is no one to fill the of.\ fice, a va'cancy exists. Gormley vs. Taylor, 44 Ga. 78. There is a patent difference between a vacancy in an office, and the expiration of the term of the incumbent, whose tenure is for a definite term and until his successor shall qualify. In the latter case it is the duty of the imcumbent to continue in the discharge of his office until his successor is qualified; the superadded period being a part of the rightful term of office. He has the right to continue
88

in office until the qualification of his successor who has been appointed or elected in the manner designated by the law."
138th Ga. pp. 160, 161. If anybody is authorized to call an election for Commissioners of Greene County, it appears that the Ordinary of Whe County alone has that authority. He was given that power expressly in the Act of 1907, and would seem to have it under the general law regarding the calling of elections for County offiicers. The matter does not seem to be entirely free from doubt, however. Should the present Commissioners continue in office, it appears that their officials acts will be of legal force ana effect, until their successors are elected and qualified according to law.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
CHIEF JUDGE MUNICIPAL COURT OF ATLANTA. GOVERNOR AUTHORIZED TO APPOINT ONE OF THE JUSTICESTHOUGH NOT RESTRAINED IN SELECTION.
December 13, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick:-Your letter of the twelfth, instant, to which is attached letters from Mr. Justice J. K. Hines, of the Supreme Court, and Honorable C. L. Pettigrew, of Atlanta, has been received.
The question involved is, whether the Governor is given power to appoint a Chief Judge of the Municipal Court of the City of Atlanta, under the Act of 1913.
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The scheme of the entire Act seems to be, that upon the nomination of the Judges of the Superior Court, both of Fulton and DeKalb Counties, the Governor appoints the ,Judges for the Municipal Court of Atlanta, and for the DeKalb section of the Court.
The provisions of the Act of 1913, above referred to, are really vague and uncertain in some particulars regarding the appointment of the Judges of this Court.
The fact that Executive construction has assumed the implied authority to name the Chief Judge of this Court would be entitled to great weight if it had been long followed.
My construction of the meaning of the Act in question is, that the appointments made by the Governor should follow the nominations made by the Judges of the Superior Courts of the Atlanta Circuit, in cases of resignations, or vacancies occasioned from any cause, in the appointment of Judges in the Atlanta section of the Municipal Court.
Now, when the Chief Judge resigns, is it lawful to have one of the remaining ,Judges appointed Chief Judge, and another competent lawyer appointed in the place and stead of the Judge promoted to be Chief Judge?
For the good of 11he service it would seem so. The Act does not inhibit this course, though silent upon it.
It is my opinion, that upon the nomination of the Judges of the Superior Court of Fulton County, the Executive would have the power and authority to appoint a Chief Judge of the Court, and, if this selection should fall upon one of the present Judges, then another eligible person ~hould be nominated and appointed to fill the remaining Judgeship.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
90

COUNTY COMMISSIONERS RICHMOND COUNTY-MEMBERS ARE AUTHORIZED TO DECIDE WHETHER OFFICE HAS
BEEN ABANDONED BY ONE.

December 22, 1922.

Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In response to your request for opinion in the matter referred to in the file of letters from Messrs. Pierce Brothers, Attorneys of Augusta, Georgia, I beg to submit the following:
Messrs. Pierce Brothers state that they are acting at the request of Hon. M. C. B. Holley, Chairman of the Board of County Commissioners of Richmond County. They state that Mr. John Lewis, a member of that Board, left Richmond County in March or April of the present year, and has not since been back.
Code section 264 provides that all offices in this State are vacated by death; resignation; judicial decision declaring the office vacant; incapacity; and:

"By the incumbent ceasing to be a resident of the State,

or of the County, circuit, or district for which he was

elected; in the first case, the office shall be vacated im-

mediately; in the latter cases from the time the fact i's

judicially ascertained,"



.and,

"By abandoning the office and ceasing to perform its duties, or either."

In my opinion, the appointing power, that is to say, the remaining members of the Board of County Commissioners of Richmond County would have it within their power to determine when a place on the Board has been vacated. If there has been suffiCient evidence submitted to them to -convince their minds that Commissioner John Lewis has re-
91

moved from the State, then his place has been vacated, they have the right to fill the same by selecting his successor.
Even if he has not removed from the State, but has abandoned his office, as he has failed to attend the meetings of the Board and to perform any of the functions of a member of the Board of County Commissioners, the remaining members of the Board would have the right to fill the office-in my opinion.
With assurance of high respect and best wishes, I am. Very sincerely yours, GEO. M. NAPIER, Attorney-General.
JUSTICE OF PEACE-INDICTMENT NECESSARY BEFORE REMOVAL FOR CONDUCT UNBECOMING UPRIGHT MAGISTRATE.
December 18, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-Replying to yours of the 15, instant, to which ts attached letter of Hon. J. P. Dukes, of Pembroke, wi1jh certain enclosures, I have the honor to submit the following:
Mr. Dukes says:
"Enclosed, I am handing you herewith, a certified copy of plea of guilty, and sentence imposed in the United States District Court, against Albert Wise. This party is Justice of the Peace of the 1137th District G. M., of Bryan County, Georgia. I thought that he would resign after having served his sentence, but he has not done so. I am,. therefore calling this matter to your attention with a view that, if you deem it proper, that you revoke his collll- mission."
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"Albert Wise plead guilty to manufacturing intoxicants, which, under the State law, is a felony, and I c.all you!' attention, for ready reference, to Code section 4656."
Code section 4648, is as follows :
"There shall be one justice of the peace in each militia district of the several counties of this State, elected by the people of each district in the manner hereinafter prescribed, who holds his office for four years, unless sooner removed."
And section 4656 is as follows:
"Justices are removed from office in the manner prescribed by the Constitution, and also on conviction for malpractice in office, or for any felonious or infamous crime."
The manner of removal 'prescribed by the Constitution' is Article 6, paragraph 3:
"They shall be removable on conviction of malpractice in office."
But section 295 of the Penal Code is as follows:
"Any ordinary, member of any board of commissioners, county judge, or justice of the peace, who shall be charged with mal-practice in office, or with using oppression or tyrannical partiality, or with wilfully refusing or failing to preside in or hold his court at the regular terms thereof or when it is his duty under the law to do so, or with using any other means to delay or avoid the due course of proceeding of law, or with any other conduct unbecoming the character of an upright magistrate, or who shall willfully and knowingly demand more costs than he is entitled to by law, in the administration and under color of his of~ fice, shall be punished as for a misdemeanor and shall be removed from office."
And Penal Code section 296 is as follows:
"An indictment under the preceeding section shall specially set forth the merits of the complaint alid a copy there~ of shall be served on the defendant before it is laid before the grand jury. The prosecutor and the defendant, and their witnesses, shall have the right of appearing before and being heard by the grand jury."
Thus, it may be seen that certain procedure must be
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followed on the finding of a True Bill against a Justice of' the Peace for any "conduct unbecoming the character of an upright magistrate."
In my opinion, the conviction and punishment in the United States Court for distilling would not measure up to "conviction of felonious crime" as defined in our State law. Evidence of such conviction would be admissible in showing "conduct unbecoming the character of an upright magistrate" as defined in section 295 of the Penal Code.
With assurances of high respect, Sincerely yours, GEO. M. NAPIER, Attorney-General.
NOTARY PUBLIC EF-OFF.-J. P. CANNOT BE DISPLACED UNTIL FACT OF REMOVAL FROM HliS DISTRICT OR COUNTY JUDICIALLY DETERMINED.
October 12, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Responding to your request for statement of the law with reference to appointment recdmmended by Grand Jury of Heard County, upon the assumption that W. S. Crockett had vacated the office of Notary Public and ex-officio Justice of the Peace, for the County, I beg to submit the following:
Section 264, paragraph 5, of the Political Code provides:
"No. 264, P. 5: Removal. By the incumbent ceasing to be a resident of the State, or of the county circuit, or distl(]:ct for which he was elected. In the first case the office .shall be vacated immediately; in the latter cases, from the time' the fact is judicially ascertained."
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If an officer removes he cannot be displaced until he resigns, or until the fact of such removal is judicially determined, unless he is found to have abandoned his office.
It has been held that the family of an officer may temporarily remove their residence, for the purpose of having members of the family attend school or to receive medical treatment, and the incumbent can go wi~h them, so long as he announces that he is retaining his citizenship.
Under the facts stated in the letter of Judge Crockett, there is no' legal basis upon which the grand jury could appoint a successor to Judge Crockett, under the situation as presented.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
SCHOOL BOOKS; ADOPTION OF FOR STATE-POSTPONEMENT ADVISED SO LEGISLATURE MAY CONSIDER CERTAIN MATTERS CONNECTED WITH.
January 24, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-In accordance with your instructions, I have very carefully considered the letter of Mr. Victor R. Smith, and the brief of Colonel E. E. Poromey, on the subject of school book adoption for the public schools of this State.
A spring adoption may not be faced with insuperable obstacles; yet, if practicable, it would be wise to defer ado'ption until fall, in order that the General Assembly may clear up some features of the law.
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In considering certain prov1swns of the Yeomans law, some months ago, in order to avoid an impasse I adopted, an authorized and recognized course, by asking the author 'of the Act what the legislative intent was. Upon Mr. Yeoman's statement, I made a qualified approval of bonds filed by the publishers, with their disting of school books, 'thus preventing for the time a serious situation for our schools.
The provisio'ns of the law regarding exchange prices of books should not, in my opinion, be lightly considered, nor set aside.
If it is possible to defer the adoption, and to have the General Assembly consider amendments to the law in its coming session, and thus to allow adoption as early in the summer as possible, so as to give publishers as much time as may be allowed, the situation would develop more satisfactorily than would seem probable by having the adoption of school books this spring.
With assurances of highest regards. Respectfully submitted. GEO. M. NAPIER, Attorney-GeneraL
CALCIUM ARSENATE-CONTRACT OF SHERWIN-WILLIAMS COMPANY TO FURNISH-SUITS FOR VIOLATION OF SUCH CONTRACT SHOULD BE BROUGHT BY INDIVIDUALS, NOT BY STATE.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Sometime ago you directed that I look into the question of the enforcement of the contract which our State Board of Entomology had with the Sherwin~Williams Company to furnish calcium arsenate for
96

the use of our farmers at a certain price. Without burdening Your Excellency with a detailed account of the various transactions, it may be stated that no valid bond was taken from the Sherwin-Williams Company, and, therefore, the only recourse would be straight suits against that concern; and a question is raised whether such a suit could be maintained.
It is plausible to contend that farmers who sent in their cheques to pay for calcium arsenate for use at the close of the season of 1922 and for the season of 1923 would be entitled to recover. from the Sherwin-Williams Company for the difference in the price at which the Sherwin-Williams Company agreed to sell calcium arsenate, at nine cents per po'und, and the price it would have cost the farmers for it bought elsewhere. The Sherw\n-Williams Company, through its attorneys, have finally' written me that they decline to pay anything, because the contract was unilateral and void.
In my opinion, it will be impossible for the farmers, and others who undertook to purchase calcium arsenate from
the Sherwin-Williams Company in the early fall of 1922 to
prove to any court that the damage sustained is computible in money, and, therefore, a suit for such damages could not be maintained in the courts.
But it does not occur to me that the State of Georgia is under obligation to bring a suit or suits in this connection, but those who undertook to purchase calcium arsenate under the bid of the Sherwin-Williams Company should be left free to maintain their suits, either individually or en bloc.
Honorable James A. Nixon, of Americus, Georgia, has been consulted by parties who undertook to purchase considerable quantities of calcium arsenate in the latter part of the summer of 1922, and I suggested to Hon. Ira Williams, general field agent of the State Board of Entomology, that he might encourage all persons who !had sent their' cheques for the purchase of arsenate to send their claims to Mr. Nixon, in order that he might handle all of them.
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Mr. Williams expressed doubt as to whether such action is within his province, since he understood that it was Your Excellency's intention to turn the matter over to this office.
Permit me to make the suggestion that you might, if you see fit, direct Mr. Williams to inform those who sent cheques to handle their claims in that manner; that is, to select counsel for this purpose, and in that connection to consider whether it would not be to their advantage to have one lawyer, or firm of lawyers, to handle the claims as a: group and thus combine the entire litigation into as limited space as possible.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
MILITARY DEPARTMENT-EXPENSES OF RIOT AND SPECIAL DUTY PAYABLE OUT OF FUNDS APPROPRIATED FOR MAINTENANCE OF.
September 20, 1922.
Ron. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In response to your request for an opinion as to the effect of the Act of 1922, entitled "An Act to make for the year 1922 additional appropriations for the maintenance of the military establishment of the State of Georgia, and for other purposes."
The appropriation of the sum of twenty-five thousand ($25,000.00) dollars, for the maintenance of the military department, passed by the General Assembly at the session of 1921, specifies that of this sum $15,000.00 is for the sole use of the various military organizations, and the remaining
98

$10,000.00 is to pay the salaries of the adjutant-general, and sudh other clerical help as is deemed necessary by the Governor, and for riot duty and incidental expenses, far the quartermaster's department, upkeep of the State arsenal, etc. (See Georgia Laws 1921, pages 20, 21).
Section 1, of the Act of 1922, is as follows:
"Be it enacted by the General Assembly of the State orr Georgia, and it is hereby enacted by authority of the 'Same, that the sum of fifty thousand ( $5Q,OOO.OO) dollars, as an additional and emergency appropriation, be and the same is hereby appropriated for the year 1922 for the maintenance of the military establishment of the State: "Provided said funds shall be used only for the payment of expense of troops on riot or special duty so much of said fund as may be necessary to be drawn on warrant of the Governor."
It may be noted that the provision of the Act of 1922, aforesaid, is out of harmony with both the caption of the Act, as well as out of harmony and incqnsistent with the definite clause "that the sum of fifty thousand dollars as an additional and emergency appropriation be and the sum is hereby appropriated for the year 1922, for the maintenance of the military establishment of the State."
It is my information that more than $9,000.00 is required to cover the salaries of the adjutant-general a.nd his assistants. This leaves, of the $10,000.00 devoted to maintenance, virtually but a pittance-less than one thousand dollars for the military establishment of the State.
With such s-cant provision, the department could not exist. Necessarily the maintenance of this establishment is a necessary and preliminary adjunct to the performance of riot and special duty. Section 4 (6) of the Code provides:
"A substantial compliance with any requisition of the Code, or laws amendatory thereof, especiallv on the part of public officers, shall be deemed and held suffi<:ient," e~c.
Our courts have held that a construction is to be f1iven
to the statute, which gives effect to its real intention, in preference to one which will destroy such intention an.d, pur~ pose.
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The previous act and amending Act are to be construed together in arriving at the legislative intent. Without the additional appropriation contained in the Act of 1922, the military establishment could not function-it could exist in name only.
It is my interpretation of the Act of 1922, therefore, that within reasonable bounds, administrative expenses necessarily and incidentally connected with riot and special duty, and with the maintenance of the military forces of the State in fit condition to perform such duties, may be lawfully paid out of the sum appropriated by the Act of 1922 aforesaid.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
GEORGIA TRAINING SCHOOL FOR BOYS-BOND REQUIRED OF CHAIRMAN OF BOARD AND SUPERINTENDENT ONLY.
February 1. 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In response for opmwn whether all members of the board of managers of the Georgia School for Boys should be required to give bond, which que~tion is raised in the attached letter from Honorable Freq J. Paxon, I beg to submit the following:
'l'lle law ordinarily does not contemplate the bonding of offic:ials and trustees who handle no funds.
There is no e:J{:press requirement in the statute that the man~S,"er of tpe Georgia Training School for Boys be reqq.ired to file bonds.
In my opinion the making of bond by Colonel Paxon, the
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chairman of the board of managers, and by Mrs. Manson, superintendent of the training school, will meet all the. requirements of the law.
Respectfully submitted. GEO. M. NAPIER, Attorney-GeneraL
JUSTICE OF PEACE-ONE PERSON MAY SERV:E AS, AND AS MEMBER OF COUNTY BOARD OF EDUCATION AT SAME TIME.
January 15, 19_23.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governod Hardwick :-Replying to the questions presented in letter of Hon. A. B. Lollison, superintendent of schools in Forsyth county, which letter you have forwarded to me.
My opinion, in reply to the first question in his letter was correctly transcribed, to-wit: "One person can serve as justice of the peace of a county and as a member of the board of education at the same time."
In the Supreme Court decision, which was largely the basis of my opinion, it was held that a member of the County Board of Education is elected by the grand jury of his county, and is not elected by the qualified voters, and that the position of a member of the County oBard of Education if! not a county officer in the sense attached to it in the Constitution and that in that sense it does not irtciude members of the County Board of Education.
In the face of this pronouncement of the law, there be~ ing no manifest conflict, or incompatibility in the two of-
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.\ J
fices, no other construction than that one given Your Excellency1 in my opinion, would be sound.
While the law prohibits the holding of two county offices by one person at the same time, there is no law adverse to one person holding two public offices at the same time, provided there is no incompatibility in the duties of such publie office.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
CLERKS OF SUPERIOR COURT-FEES OF, HOW FIXED BY LAW.
March 1, 11923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-There is before me for investigation and opinion Your Excellency's letter of even date herewith, requesting written opinion, in reply to certain questions contained in the letter of Honorable C. M. Morgan, clerk of the Superior Court of Polk county, which letter is as follows :
"I respectfully request that you get for me opinion from the Attorney-General on the following questions:
"1st. Whether or not the celrk of the Superior Court is entitled to fifteen cents each for subpoenas issued by him for the grand jury, in summoning witnesses before them.
"2d. Whether or not the clerk of the Superior Court is entitled to compensation of $5.00 per day, in attendance upon the court where motion court is heard, or where pleas of guilty are entered (or where a plea of guilty is entered).
"These fees are provided, and are on the fee bill for clerks of thl! Superior Court and City Courts, and as there
has been a question taised concerning these items, I earn-
estly desire a written opinion on above items."
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Code section 5995 fixes the fees of clerks of the Superior Court for issuing subpoenas at fifteen cents for each subpoena.
Should the grand jury request, or the solicitor-general request, for the grand jury, the issuance of subpoenas in cases pending, or coming before the grand jury for investigation, this is an official act, for which the usual stated fees .are chargeable to the county.
The amendment to the law fixing compensation of clerks of the Superior Court (See Georgia Laws 1920) fixes the compensation allowed for attendance upon the court .at five dollars per day.
By Code section 4831 (v), the same fees are allowed for .service in the City Courts as in the Superior Courts.
The law recognizes no fraction of a day in fixing compensation of per diem, unless specifically expressed. A clerk <>f the Superior Court in attendance upon the sessions of a Superior or City Court for any part of a day is entitled to iive dollars for each day of such attendance.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
TAXES RECOVERED ON RULE AGAINST' SHERIFF-ATTORNEY MAY BE PAID OUT OF FUND SO RECOVERED.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-I have the honor to reply to your favor of the first instant, which reached me only yesterday afternoon. The attached letter of General Wright, which raises the question on which you ask opinion, says:
"On December 20, 1920, the tax collector of Early county,
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George E. Chipstead, issued executions in accordance with law against all delinquent tax payers in his county, and turned same over to the sheriff for collection. Under the law, the sheriff is required to levy the fi. fas. and make settlement with the tax collector within ninety days. This the sheriff failed to do, and after repeated efforts to obtain a settlement the tax collector finally had no remedy but to employ an attorney to rule the sheriff. The rule was brought, and the court rendered a judgment against the sheriff for the amount of the taxes.
"There is no law governing the payment of attorney's fees where it becomes necessary for a tax collector to rule the sheriff. The attorneys who represented the tax collctor have communicated with me, and inasmuch as there was absolutely no chance of recovering these taxes except by rule, they think that although there is no statute on the subject, equity would require that the State pay them a reasonable fee for their services, from the contingent fund."
In a conversation I have had with General Wright, he tells me that there has been no similar case like the one named during the entire period of his tenure of office. T!he just and equitable, in fact the necessary, thing to do in an emergency of this character, is to pay the necessary attorney's fees out of the money recovered.
Code section 149 provides that the Governor may "re-.
quire the aid of the Attorney-General to carry on suits,
where practical, and, if not, some other suitable and competent attorney on such terms as to compensation as he may agree upon, but the fees of such attorney shall be conditional."
An officer of the State, such as the tax collector in the instant case, acting to protect the interests of the State, and having procured the aid of a competent attorney to bring suit to obtain the State's rights, can properly and justly ask the State to pay the State's just proportion of the fees of such attorney, out of the money recovered. This should not be paid out of the Governor's contingent fund, but out of the fund recovered.
In my opinion, Your Excellency is authorized to direct the
payment to the attorney of a reasonable and proportionate
fee, the same to be deducted from the money collected as a
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result of the legal proceedings brought in the interest of the State and County.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
TRUST CREATED UNDER WILL OF JOHN W. HUNT-SUGGEST APPOINT~ENT OF ATTORNEY ON CONTINGENT FEE BASIS.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor:-As requested by Your Excellency, I have carefully examined the attached file of correspondence, relative to a trust created by the will of the late John W. Hunt, of Jacksonville, Florida.
The State of Georgia appears to have no direct interest in this estate; and it is obviously problematical as to what residue, if any, will be available for the execution of the trust which the testator had in mind when he undertook to provide for the benefaction which he envisioned.
I take the liberty of suggesting that Judge Samuel B. Adams, of Savannah, Georgia, who is now entirely familiar with the proceedings connected with the probate of the will of the said John W. Hunt, and also thoroughly acquainted with the condition of the estate, be authorized to look after the entire matter, with the understanding that his fee be conditioned upon the amount realized. Judge Adams expresses himself as solicitous to have the trust to materialize.
By this course it would seem that every precaution would be taken to secure to the citizens of Georgia any amount which can possibly be realized from the Hunt estate for establishing the eleemosynary benefaction which Mr. Hunt de-
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sired to be established at some location in Middle or South Georgia.
With asurances of highest respect and best wishes, Sincerely yours, GEO. M. NAPIER, Attorney-General.
NOTICE OF LOCAL ACT-FACT OF PUBLICATIO.N OF TO BE ASCERTAINED BY GENERAL ASSEMBLY AND BY GOVERNOR-NO REVIEW BY COURTS.
August 16, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-Replying to your verbal request for opinion as to the executive's duty regarding the approval of a bill of a local character, affecting the incorporation of Townsend, Georgia, where Your Excellency has been apprised of the fact that the advertisement of such local measure has not been published, as required by the statute, I have the honor to submit the following:
The subject is reviewed by our Supreme Court in the case of:
Lee et al. vs. Tucker, !30th Ga. 43.
In that opinion, the court quotes approvingly from a California case as follows:
"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; and no authority is conferred upon the courts to hear evidence, and determine as a question of fact whether these co-ordinate departments of the State government have properly dis:harged such duty."
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In the instant case, the Governor, in the absence of any knowledge or information on the subject, might have the right to presume that the two Houses of legislation had performed their duty in reference to requiring proof, that the advertisement of the intention to introduce such local measure had been published as required by law; but Your Ex,cellency has submitted to me written proof by citizens and officials of the town and county in which same is situated, to the effect that such local advertisement has not been published. This being true, the decision of our Supreme Court, .as above quoted, seems absolutely controlling. It is made "the duty of the Governor, before approving the bill, to become satisfied in some appropriate way" of the fact that the required advertisement has been duly published. Therefore, if satisfied that such advertisement was not so published, the Governor, as a co-ordinate part of the legislative establishment, could not lawfully approve the measure.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
COSTS IN PROSECUTIONS FOR ESCAPE-HOW PAID.
November 6, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In reference to the bills of Honorable Doyle Campbell, solicitor-general, for costs due officers of the court in certain cases of escape, on which I am advised by Honorable Walter E. Vance, Warrant Clerk, that you desire opinion as to the legality of having these sums paid by the State out of the contingent fund, I beg to say that:
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Your Excellency's attention is called to an opmwn of' Honorable Thomas S. Felter, attorney-general, under date of February 11, 1913, in which he says:
"The expenses of all trials for escapes from the penitentiary or attempts to escape, and for all other crimes committed by penitentiary convicts while confined in the penitentiary, shall be paid by the State, upon a bill of costs, to be certified by the judge trying the case."
Section 232 of the Penal Code gives the Superior Court of the county where the escape of a penitentiary convict occurs jurisdiction to try the offense. These two sections of the Code evoluted from statutes which required the Superior Court of Baldwin County to try prisoners who escaped from the penitentiary, and made the expenses of such trials a. charge against the State, payable on certificate of the clerk of the Superior Court of Baldwin county by warrant of the Governor. Cobb's Digest (1851) pages 837, 867. When the statutes were enacted the State confined her felony convicts in a central penitentiary, located in Baldwin county. The leasing of these convicts and the scattering them about the State in the several counties where they were worked by the lessees, brought about the change in the law to the present reading of the sections of the Code mentioned. The Act of 1908 (Acts 1908, page 1119) did not make any change in the law in regard to the crime of escape from the penitentiary, the venue of the crime, or the manner of ~he payment of the costs of the trial. These subjects are not mentioned in the Act, nor is there anything therein which conflicts with or repeals by implication any of the sections of the Code covering the same. It is still a crime for a prisoner to escape from the penitentiary, and the offence is triable in the county where the escape occurs. Penal Code, sections 321, 323. This being true, there does nat appear to be any reason why the costs should not be paid as heretofore under the provisions of Code, section 1230, above quoted. A felony convict working in a county of the State upon the public roads under an allotment made to the county by the
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Act of 1908, is 'confined in the penitentiary,' and if he escapes from such confinement his escape 'is from the penitentiary.' His sentence is that he be punished by imprisonment and labor in the penitentiary, and, if working the public roads is not such confinement, then his detention would be illegal, and to escape therefrom would not be a crime."
"The records of the Comptroller-General's office disclose that for many years during which this class of convicts were worked under lease, the costs of the trials for escapes were paid by the State to the officers of the court wherein the trials were had, by warrant of the Governor on the contingent fund. I do not find anything in the present condition of the law to call for any change in this long continued practice of the executive department. In my opinion section 1230 of the Penal Code is in full force and effect."
There is nothing in the law, or the decisions of our Supreme Court to change or modify in any respect the aforesaid opinion of Attorney-General Felder.
In the absence of some act of the legislature authorizing the payment of these costs out of some other fund, it is my opinion that the same should be paid by warrant of the Governor on the contingent fund.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
"STATE SUPERRINTENDENT OF SCHOOLS-VACANCY IN OFFICE OF, APPOINTEE FILLS OUT UNEXPIRED TERM.
July 17, 1922.
Ron. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-I have the honor to acknowl-
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edge receipt this morning of your letter of the fifteenth instant, in which you say:
"It is probable that a vacancy is about to occur in the office of the State School Commissioner. The executive records show that the present State School Commissioner qualified as such on June 26, 19211, and was commissioned by me as such to serve until June 26, 1923.
"I wish to submit to you the question as to whether in the event of a vacancy, I have the authority to appoint a successor for the remainder of the full term of the incumbent, as shown by the executive records, or to what extent I have authority to make an appointment to fill the vacancy, or whether or not the people will be called upon to elect such successor in the general election of next November."
Code section 6483, which is a provision of the Constitution of this State, provides:
"When any office shall become vacant, by death, resignation, or otherwise, the Governor shall have the power to fill such vacancy, unless otherwise provided by law; and persons so appointed shall continue in office until a successor is commissioned agreeably to the mode pointed out by this Constitution, or by law in pursuance thereof."
'!1here seems to be no provision relating to a vacancy in the office of the State School Commissioner, or State Superintendent of Schools, such as pertains to judges of the Supreme and Appellate Co'Urts, to the effect that the appointee shall hold his office until the next regular election, and until his successor shall have been elected and qualified.
It is, therefore, my opinion that Your Excellency has the authority, under our laws, in the event of a vacancy in the office of the State School Commissioner, to appoint a successor for the remainder of the term of the present incumbent, as shown by the executive records; and that the successor to this office, elected in the general State election this year will begin his term at the expiration of the term for which the present incumbent was commissioned.
Respectfully submitted. GEO. M. NAPIER, Attorney-GeneraL
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PENSION COMMISSIONER-VACANCY IN OFFICE OF, APPOINTMENT FOR BALANCE OF UNEXPIRED TERM.
August 29, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-In response to your request for advice as to the term of the office of Commissioner of Pensions, and as to ~e powers of the Governor in making the appointment to fill the vacancy, I have the honor to submit the following:
Section 1468, of the Penal Code, provides:
"There shall be a Commissioner of Pensions, who shall be elected by the electors of the whole State who are entitled to vote for members of the General Assembly."
Section 1472 of the same Code provides further:
"The office of Commissioner of Pensions shall continue for twenty-five (a) years only, unless continued by further legislation."
By Act of 1896, Georgia Laws 1896, page 66, the duration of this office was fixed at six years only, unless continued by further legislation.
By Act of 1901, Georgia Laws 1901, page 58, an amendment to the said Act of 1896, making the section limiting the duration of the office to read:
"This office shall continue for fifteen years, unless continued by further legislation."
By Act of 1910, Georgia Laws 1910, page 124, the Act of 1896 was further changed by amending the Act of 1901 so that the law was made to read:
"This office shall continue for twenty-five years only, unless continued by further legislation."
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By Act of 1920, Georgia Laws 1920, page 230, it was provided:
"That on and after the passage of this bill, the term of the office of the Pension Commissioner shall continue to exist until otherwise provi.ied by the General Assembly of the State."
Therefore, at present, there is no limit to the continuation of the office of Pension Commissioner. The term, and the manner of the election to the office are in no wise affected by the several amendatory Ads.
As to filling a vacancy in this office, section 1473 of the Penal Code provides :
"In case of a vacancy in said office, causing an unexpired term, the same sl:~ll be filled by executive appointment, and the person so appointed shall hold said office for the balance of the unexpired term, and until his successor is elected and quali:!ied.'
The unexpired term of the late lamented Judge John W. Lindsey, Commissioner of Pensions, will extend to June 1923, and the appointment of the Governor will cover that period of time.
The successor of Judge Lindsey should be elected at the general State election, in November, of this year.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
GEORGIA REPORTS-PRINTING OF PAYABLE OUT OF ANY FUNDS IN TREASURRY.
Hon. Thomas W. Hardwick, Governor of Georgi~, State Capitol.
Dear Governor Hardwick :-Replying to your letter, to
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which is attached file including letter of Honorable George W. Stevens, reporter of the Supreme Court, to YO'ur Excellency, and letter of E. W. Stephens Publishing Company to
Hon. George W. Stevens, and requisition blank for reprinting, etc., by the E. W. Stephens Publishing Company, and affidavits, etc., this file being herewith enclosed as re-
quested. By reference to Georgia Laws 1920, page 242, we find this
provision in section 17:
"The purchase price of books bought under the provisions hereof, for the use of the State, and the cost of making stereotypes, if required, and such other things as are properly chargeable to the State, in carrying out the provisions of this Act, not otherwise provided for, shall be paid out of the printing fund, or any other fund in the treasury, not otherwise appropriated, to be drawn on warrant of the Governor."

Under this law it would seem appropriate that if the

printing fund has been exhausted, it would be peculiarly ap-

propriate to draw on the funds in the treasury arising from

the sale of Georgia Reports.

.

There seems to be no legal obstacle to the use of funds in

the treasury so arising, because the law says that the pay-

ment for printing the reports may be paid out of "any other

fund in the treasury not otherwise appropriated."

My conclusion is, therefore, that Your Excellency would

be authorized to draw warrant on this fund, if it has not

otherwise been appropriated, in order to discharge the ob-

ligations of the State for reprinting and publishing the vol-

umes of the reports of the Georgia Supreme Court and Ap-

pellate Court.

Respectfully submitted.

GEO. M. NAPIER,

Attorney-General.

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SALE HAWKINSVILLE AND FLORIDA SOUTHERN RAIL ROAD -TOO LATE TO ENJOIN AFTER SALE ORDERED BY COURT.
December 13, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick:-Your favor of the 12th instant, in reference to the telegram of Mr. J. D. Chandler, of Ashburn, Georgia, protesting against the junking of the Hawkinsville & Florida Southern Railroad Company, I beg to say that:
It appears that, under the order of court, the sale of this railroad occurred several months ago. If the State had intervened before the sale, and order to junk, we could probably have prevented same by an appeal to the Interstate Commerce Commission, but since the State cannot now intervene, and since all the parties have had their day in Court, there seems to be no remedy possible, at this time, according to my understanding.
It seems to me that it is now too late to undertake legal steps to prevent the purchasers from taking up the iron on that part of the railroad, which was included in the sale under the order of the court.
Respectfully submitted, GEO. M. NAPIER, Attorney -General.
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TRUSTEES CONFEDERATE SOLDIERS' HOME-NUMBER OF.
December 13, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-I have the honor to acknowledge receipt of yours of the 8th instant, in which you say:
"During the last session of the legislature the law regarding the appointment of Trustees for the Confederate Soldiers' Home, was amended in order to provide for the appointment of one Trustee from each Congressional District, and certain members to represent the U. D. C.'s."
"I beg to invite your attentior. to paragraph 2 of section 1, which sets forth: 'The Board of Trustees shall consist of fifteen members, one from each Congressional district, etc.'
"Please let me know as to your construction of this law, and how I shall appoint 15 Trustees one from each Congressional District, when there are, as you know, only twelve Congressional Districts in Georgia"
After a very careful examination of this Act, which ap-: pears to be loosely drawn, and to suffer greatly for want of punctuation, there seems to be no conclusion possible except that it was tinkered with, or amended after a provision for fifteen members, so as to provide for eighteen members. Since this conflict has arisen, it would seem that it is necessary to appoint one member of the Board from each Congressional District. This was the contemplation and sense of the law which was sought to be amended by this Act.
This seems to be the only practical course that is within the range of the law.
The Act can be amended at the next session of the legislature and the conflict mentioned above straightened out.
This is another instance where a "~Committee of Revision"
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in both Houses of the Legislature could be of great value to the State.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
REWARD FOR ARREST OF FRANK DUPREE-DIVISION TO BE DETERMINED BY COUR11S OF FULTON COUNTY.
July 15, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick:-We have the honor to acknowledge the receipt of your letter to which is attached the herewith returned letter of Messrs. Hendricks and Buchanan, attorneys for William Collins, William Dresden and Paul Wencil, of the Metropolitan Police Department of the City of Detroit, Michigan.
We take the liberty of advising in the premises that, inasmuch as an Interpleader has been filed by the City of Atlanta, asking direction as to the payment of the reward of One Thousand Dollars offered for the arrest of Frank B. Dupree, whose conviction has been recently affirmed by the Supreme Court of Georgia, the State might await the decision of the Superior Court of Fulton County in this matter, and if these parties are held by the Court to be entitled to the reward offered by the City, the State can then safely pay over the amount of the reward offered for the arrest of Dupree.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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JUSTICE PEACE WHO ABANDONS OFFICE-ELECTION CALLED BY ORDINARY.
July 18, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In reply to your request for opinion as requested by Ron. J. M. Campbell, Ordinary of Murray County:
Judge Campbell submits the question, whether a Justice of the Peace who has left the State with charges pending in Court against him, has vacated his office to the extent that an election sho'uld be called to fill the office.
Code section 264 provides that all offices are vacated:
By death of the incumbent; By resignation, when accepted; By decision of a competent tribunal declaring the office vacant; By incapacity; By the incumbent ceasing to be a resident of the State, County or district for which he was elected; By failing to apply for and obtain Commission, or by failing to qualify; By abandoning the office and ceasing to perform its duties, or either.
In the instant case, if the Justice of the Peace is known to have removed from the State, an election should be called and held as provided by law.
According to the statement of the Ordinary, the incumbent has apparently abandoned the office. For the time being he has certainly ceased to perform its duties.
These causes authorize, indeed require, the Ordinary in the absence of another Justice in the District, to call an
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election to fill the office vacated by removal or abandon-

ment.

Respectfully submitted,

GEO. M. NAPIER,

Attorney-General.

ATTORNEY MEMBER BOARD PUBLIC ACCOUNTANTS-APPOINTMENT SHOULD HAVE BEEN FOR THREE YEARS.
September 23, 1922
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to your letter enclosing letter of Honorable Gordon Saussy, of Savannah, Ga., in which he says:
"On the 19 day of November 1920, I was commissioned by Governor Hugh M. Dorsey 'Attorney member of the Board of Examiners of Public Accountants, to hold office until October 1st, 1922, and until your successor is appointed and qualifies.' "
"The Act approved August 17, 1908, creating the Board for the examination of Accountants, section 2 provides:'The other examiner shall be a practicing attorney in good standing in any of the Courts in the State of Georgia, and shaH be appointed for the term of two years, and upon the expiration of said term a successor shall be. appointed for the term of three years.' "
"I succeeded Mr. Hirsch.'' "My commission allows me from November 2, 1920, to October 1, 1922-two years. The law seems to indicate that my appointment should have been for three years. "This matter ought to be corrected before October 1, 1922, or some other individual appointed to the Board in my place, for the reason, that the next examination is in November.''
Section 1998, of the Code provides that the member of the Board who is an Attorney shall be appointed at first for
118

tw<;> years, and at the end of the first term shall be appointed for three years.
It is, therefore, clear that Mr. Saussy's commission should have been for a period of three years, or until October 1, 1923.
In my opinion, it would be legal and proper to correct the error by issuing a Commission extending the term to October 1, 1923. The same result could be attained by the issuance of an Executive Order reciting the fact of this erro'r, and stating that inasmuch as Mr. Saussy is entitled to another year, no appointment will be made until the end of the period he is entitled to hold and that the Oommission to be issued to his successor will be effective on and after October 1, 1923.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STATE BOARD OF BARBER EXAMINERS-NOT CONTEMPLATED THAT STATE SHALL BEAR ANY EXPENSE IN OPERATION OF THIS BOARD.
August 5, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In reference to the attached correspondence with Mr. Rollings, Secretary of the State Barber Examiners, and the bill of costs accompanying same, I beg to say that:
Upon examination of the statute, it seems to me that the legislative intent was that the State would not have to bear any expense incurred by the operations of this Board.
Code section 1754 (g) requires that on the first of Janu-
119

ary of each year, the Board shall make to the Governor a report containing a full statement of the receipts and disbursements of the Board for the preceding year, and any monies in the hands of the Treasurer of said Board at the t:lme of making such report in excess of $500.00 shall be paid over to the State Treasurer for the support and maintenance of said Board, and to be disbursed by him upon warrants issued by said Board.
Therefore, if the Board, in its discretion, sees fit to conduct prosecutions, in the event costs are charged against the prosecutor, the Board and not the State of Georgia, would have to stand the expense of such prosecution.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
GOVERNOR AUTHORIZED TO APPOINT TRUSTEES OF AGRICULTURAL SCHOOLS FROM CERTAIN NEW COUNTIES.
June 19, 1922.
Ron. Thomas W. Hardwick, .Governor of Georgia, State Capitol.
Dear Governor Hardwick :-1 have the honor to reply to your letter of the fifteenth instant, in which you say:
"Under the Act approved August 19, 1918, the A. & M. Schools of Georgia, were divided into twelve districts, each district to be composed of a certain number of counties, as named in the Act (Acts 1918, p. 143.)
"Since the passage of that Act, the following new counties have been created in Georgia, and are, therefore, not named in either of the twelve districts; Long, Seminole, Lamar, Atkinson, Brantley, Cook, Lanier and Treutlen."
"I will be glad to have you advise me whether or not I have authority to appoint Trustees from these Counties to the A. & M. Schools?"
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Section 1554, Political Code, provides as follows:
"The Governor is authorized and directed to appoint from each county in the respective Congressional districts one trustee for the school to be established in such district; such trustee to hold office for the period of six years from his appointment and until his successor is appointed; and the trustees so selected in each district shall constitute a board of trustees for the school in said district, with power to control the management of said school, and make rules and regulations for the same, subject to the provisions of this Article."
In my opinion the language above quoted, to-wit: "The Governor is authorized and directed to appoint from each county," etc., would authorize the Executive to make these appointments without further legislation.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
INJUNCTION COULD BE RESORTED TO, TO RESTRAIN -ACTS OF VIOLENCE UPON OFFICERS OF STATE ENGAGED IN CATTLE TICK ERADICATION.
June 24, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-This acknowledges your request for opinion as to the suggestion contained in the attached letter of Hon. P. F. Bahnsen, State Veterinarian, regarding a situation in Echols County.
Doctor Bahnsen inquires whether he can legally apply in the Superior Court of Echols County for injunction against c~rtain parties to have them restrained from demolishing or injuring cattle dipping vats in that County.
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This remedy might prove effective. On proper showing to the Court the Writ of Injunction would issue, and should be effective in restraining the named defendants from acts of lawlessness and violence toward and upon the officers and agents of the State in charge of the cattle dipping operations, as well as from physical damage to the vats. Of course, only the parties named will be enjoined. Others who might be encouraged to commit acts of violence, would feel moral restraint in doing unlawful acts, when the Court has the matter in hand. And, at least, with the Court's in action, it will shortly develop whether the civil authorities can cope with the situation, or whether the strong arm of the State will have to intervene in maintaining law and order.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
ESCAPES-TRIAL OF COSTS PAYABLE BY STATE.
Hon. Walter E. Vance, Warrant Clerk, State Capitol.
Dear Sir :-In response to your inquiry whether the State is liable to pay the expenses of certain trials for escapes from Baldwin County, which trials have occurred in the Ocmulgee Circuit, I beg to say:
Section 1230, of the Penal Code says:
"The expenses of all trials for escapes from the penitentiary or attempts to escape, and for all other crimes committed by penitentiary convicts while confined in the penitentiary, shall be paid by the State, upon a bill of costs to be certified by the Judge trying the case."
Section 319 of the Penal Code provides that a convict in
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the .chain gang under misdemeanor sentence who may escape shall be punished as for a misdemeanor; and section 321 provides that one convicted of felony who may escape from the penitentiary shall be punished by confinement in the penitentiary.
It seems that Honorable Doyle Campbell, Solicitor General, and the Clerk and Sheriff of Baldwin County have a valid claim against the State on the bill of costs for escapes, which bills of costs are herewith returned to you.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
MEMBE~S OF GENERAL ASSEMBLY MAY ACCEPT ANOTHER OFFICE BEFORE, NOT AFTER, QUALIFICATION AS MEMBER LEGISLATURE.
March 30, 1923.
Hon. Julian B. McCurry, Private Secretary, Executive Department, State Capitol.
Dear Sir :-Replying to your inquiry, ~as to whether a member of the next General Assembly is eligible to appointment to a local judgeship of this State I beg to submit the following:
The Constitutional provision as to the eligibility of State Senators and representatives in our Legislature is contained in Code Section 6420, which reads as follows:
"No person holding a military' commission or other appointment or office having any emolument or compensation annexed thereto, under this State, or the United States, or either of them, except justices of the peace and officers of the militia, nor any defaulter for public money or for any legal taxes required of him shall have a seat in either house; nor shall any senator or representative, after his
123

qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected."
Note that the language is, "Nor shall any Senator or Representative, after his qualification as such, be selected by the General Assembly."
Thus, it may be held that, before qualification that is, the taking of the oath of office and the entering upon the performance of its duties, members elect of the General Assembly are not disqualified, and are not prohibited from accepting appointment to another office in this State.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
APPROPRIATION FOR TRAINING SCHOOL FOR MENTAL DEFECTIVES-BILL PROVIDING INVALID.
August 26, 1922.
Hon. Julian B. McCurry, Private Secretary, State Capitol.
Dear Sir :-In response to your request for opmwn as to the validity of a Bill amending an Act for the maintenance of the Training School for Mental Defectives, I beg to say:
Following is a copy of the Bill referred to: A Bill to be entitled. an Act, known as House Bill 273, approved August 15, 1921, appropriating the sum of $5,000.00 for the use and maintenance of the Georgia Training School for Mental Defectives for the year 1922, so that the caption, or title to said act, when amended, shall read as follows:
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"An Act to appropriate the sum of $5,000.00, to become immediately available, for the use and maintenance of the Georgia Training School for Mental Defectives for and during the remainder of the year 1921; and also the sum of $25,000.00 for the use and maintenance of the Georgia Training School for Mental Defectives for the years 1922, and 1923, and for other purposes."
SECTION 1. "Be it enacted by the General Assembly of the State of Georgia and it is hereby enacted by the authority of the same, That all laws and parts of laws in flict with the provisions of this Act be and the same are hereby repealed."
This bill has a full title or caption, stating precisely the intended amendment, but is fatally defective in that it does not contain a clause enacting the caption.
The proper method to effectuate this amendment would
have been to let Section 1 enact the provisions proposed in the caption. Without an enacting section, the caption is
without force. Section 1, as shown above merely repeals conflicting laws.
The Act sought to be amended carried an appropriation for this training school for the "remainder of the year 1921," and for the years 1922 and 1923, whereas the caption of the Act did not include an appropriation for the year 1923.
To amend this caption it was necessary to have an enacting clause. Such an amendment could in no way be valid and effective by simply stating the proposed amend'ment in the caption of the bill, as is shown by the copy of the measure hereinbefore set out.
In my opinion, the act is invalid and inoperative. Let me add that the Attorney General did not see this proposed measure until after it had been vetoed, and I am informed that the Assistant Attorney General likewise had not seen it. I have uniformly declined to undertake to draw legislative bills, for the reason that this Department may be called upon to render official opinion in reference to such Acts, or some of the provisions thereof. The misadventure of this bill emphasizes the need of a
125

Committee composed of a few experienced legislators, whose province it would be to review and revise all bills before the same are put on their passage.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
CITY OF WAYCROSS-SCHOOL TAXES ARE PAYABLE FIRST OF MAY EACH YEAR.
July 5, 192.2.
Hon. William A. Wright, Comptroller-General, State Capitol.
Dear General Wright :-This acknowledges receipt of the letter of Mr. J. C. Dolive, Superintendent of the Postal Telegraph Company, to yourself, in reference to the payment in advance of school taxes to the City of Waycross:
He asks whether it is necessary to pay the school tax at this time for the year 1922?
The City authorities at Waycross are proceeding under the provisions of the Act of 1921. (See Georgia Laws 1921, page 1163, et. seq.)
"The taxes levied for school purposes in the City of Waycross shall be due and payable on the first day of May of each year, and unless paid on or before the first day of June of each year, execution shall be issued against the defaulting tax payers, and shall be collected by levy and sale as other taxes in the City of Waycross are now collected. The Tax Collecting officer of the City of Waycross shall keep a separate and distinct account of all taxes collected for school purposes and shall pay same over promptly to the Board of Education monthly on the first day of each month after said taxes are collected."
The intent and effect of this law are to authorize the collection of school taxes, virtually in advance for each cur-
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rent year; and, under this law, the officials of that City are required to enforce the collection of school taxes on property located in the City of Waycross.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STATE HIGHWAYS-RAILROADS REQUIRED TO MAINTAIN SUITABLE CROSSINGS - NOT NECESSARILY PLANK CROSSINGS.
Hon. John N. Holder, Chairman State Highway Commission, State Capitol. My Dear Sir : - I regret that earlier attention to your let-
ter of the nineteenth instant has been impossible because of my absence from the State in Washington City the past week.
As to the power of the State Hi)?4hway Board to provide plank crossings over the State Highways which cross the railroads, I beg to cite you section 2673 of the Code, which is as follows:
"All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws."
It appears that it is beyond the authority of the Sta!te Highway Department to compel the putting down of plank crossings provided the railroads maintain suitable crossings and keep them in good order.
A firm dirt or gavel crossing which will not leave the rails too high above the surface of the dirt or gravel might an,swer the practical purpose.
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The condition in which the railroads will maintain such crosings will determine largely the question of your authority to require changes to be made.
This matter is one worthy of the attention of the legislature.
I return herewith the letter from Mr. A. A. Simonton, Division Engineer to Mr. W. R. Neel, State Highway Engineer.
With assurances of high regard and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
STATE HIGHWAY BOARD RESPONSIBLE FOR ACTUAL DAMAGE RESULTING FROM CHANGE OF GRADE, LOCATION, ETC.
March 23, 1923.
Hon. John N. Holder, Chairman State Highway Board, State Capitol, Atlanta, Georgia.
Dear Sir :-I have your request this morning to reply to a question asked by Hon. Nathan Harris, County Attorney of Floyd County, wherein he states:
"All that I am asking from you is a statement that Rome and Summervlile is a State-Aid road of such character that your Board is responsible for the ultimate damages assessed."
The question turns upon whether or not this particular road has been designated and permanently adopted as a part of the State-Aid road system of this State. If so, the Act of 1919 (See Georgia Laws 1919, Page 245, Provision 5) applies. If so adopted, then the Law makes the State Board responsible for any actual damages which i:nay en-
128

sue by reason of any change of grade, etc. The advantages of the new road would of course be considered by a Court or jury in assessing such damages. It is my opinion, therefore, that you may state to Mr. Harris that the Rome and Summerville Road is a State-Aid Road in contemplation of the Law.
Such a statement will not commit you to the proposition that damages have resulted from any change in the location or grade of the road.
The file of correspondence attached to your letter is herewith returned.
With best wishes and assurances of high regards, I am.
Sincerely, GEO. M. NAPIER,
Attorney-General.
STATE HIGHWAY DEPARTMENT HAS COMPLETE AUTHOR! TY AS TO CONSTRUCTION AND MAINTAINANCE OF STATE AID ROADS, INCLUDING POWER TO CUT INTO ROAD-BED.
December 14, 1922. Ron. John N. Holder,
Chairman State Highway Department, State Capitol.
Dear Sir:-Yours of the 13th instant to hand, accompanied by letter of Mr. E. N. Parker to Mr. W. R. Neel, State Highway Engineer, dated December 11th, 1922, in which he says with reference to sewer connections in Crump's Park, Macon, Georgia:
"I am inclined to believe that thls matter is one for us to look after, as the roads have been turned over to this Department for maintenance and conseqpently would come under our supervision. I wish you would get an opinion from the Attorney General concerning this matter, and if
129

he advises that we are responsible for the sewer connections, etc., should come under the supervision of this office, I believe that they should get out some form of agreement whereby a plumber, or any other person tunneling under the paving, of cutting into same should be made to put up a cash bond, same to be held until the work is completed and put back in such shape as would be acceptable to this Department. Of course, you realize that if every Dick, Tom and Harry gets to digging trenches under concrete roads, or cutting pavement out, in order to make a conection, that if there is not very careful supervision in ditching, back filling, and putting paving back in place, it would be but a short time before we would have a very bad stretch of paving throughout a new residential section."
As to the authority of the State Highway Department in matters of this kind:
The State Highway Department, when it is given control aver certain roads for maintenance, and when it undertakes to construct and maintain State-Aid Roads, has, in my opinion, complete and ample authority over all matters pertaining to the construction, attention and up-keep of such roads. One of the important. factors in the maintenance of paved roads, is the cutting into and through the road bed in making sewer connections.
The Highway Department manifestly has authority to prohibit and prevent the cutting into the roads under its jurisdiction and control, and has the power to require permits before such digging, tunneling or cutting is begun, and to safeguard and protect the roads, by requiring bond to be given conditioned that the road bed shall be left in the .condition required and prescribed by the Highway Department.
There appears to be no limit to the exercise of reasonable regulations to protect and preserve the roads which are constructed and maintained by the money of the people of the State.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
130

TAGS ON MOTOR-VEHICLES OWNED BY CITIZENS OF ANOTHER STATE GOOD IN GEORGIA FOR THIRTY DAYS.
June 24, 1922.
Ron. S. G. McLendon, Secretary of State, State Capitol.
Dear Sir :-This acknowledges receipt of your favor of even date herewith, to which you attach the letter of Honorable Ernest Amos, Comptroller of the State of Florida, wherein he asks the following questions:
"If a motor vehicle, owned by a resident of Florida was run as a bus for hire between a Florida town and a Georgia town, making regular trips, would the Florida license tag be good on the car for the time it was in the State of Georgia, so operated, as above mentioned, and for hOIW long?"
Section 10 of the Act of 1915, (See Georgia Laws 1915, page 115) is as follows:
"Motor vehicles owned by non-residents of the State may be used and operated on the public streets and highways for a period of thirty days, without having to register and obtain a license so to do, or a chauffeur's license; provided that the owner or owners thereof shall have fully complied with the laws requiring the registration of motor vehicles in the State or territory of their residence, and that the registration number and the initial letter of such State or territory shall be displayed and plainly visible on such vehicle or vehciles. In other respects, however, motor vehicles owned by non-residents of the State and in use temporarily within the State, shall be subject to the provisions of this Act; provided, no resident of this State shall be allowed to operate a motor vehicle within this State under a license issued by another State"
Note that for a period of thirty days the license of a nonresident's car is good in this State. The latter part of the quoted section states, however "in other respects, however, motor vehicles owned by non-residents of the State and in use temporarily within the State, shall be subject to the provisions of this Act; provided that no resident of the
131

State shall be allowed to operate a motor vehicle within this State under a license issued by another State."
My conclusion, therefore, is that after the thirty days have expired the operator of a motor vehicle owned by a resident of the State of Florida and plying between a Florida town, and a Georgia town, would be required to possess and exhibit a Georgia license tag in order to' comply with the statutes of this State.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STATE HIGHWAY DEPARTMENT MAY NOT USE FUNDS ALLOTTED TO ONE COUNTY IN ANOTHER COUNTY, EXCEPT WHERE PROPER AGREEMENT ENTERED INTO.
January :!0, 1922.
Hon. John N. Holder, Chairman State Highway Board, State Capitol, Atlanta, Georgia.
Dear Sir:-Your letter of the 9th instant, received wherein you state:
"The Acts of 1921 provide that the State Aid Road Funds, be apportioned to the several counties on the basis of road mileage as shown by the State System.
"The same Act also provides, That the State Highway Department shall take over the State Aid Roads aforementioned on or before January 1, 1922, and that these roads shall be maintained by the State.
"In this State system of roads there are 144,000 feet of bridges which must be kept at aU times so that vehicles can pass over them.
"Now, here is the concrete question on which I wish an opinion. Can the State Highway Board under the law spend in a county on bridges of that county an amount which is in excess of the total amount to which the county would be entitled under the distribution of road funds
132

mentioned in the above quotation from the State Highway

Law."



The legislature made provision whereby funds prorated to one county could be used in another county by the following section :
Section 4. Be it further enacted, that the counties. and State Highway Board have the right to enter into agreements for the purpose of using the funds of such counties or county to construct some portion of the State Highway where the funds for one county are nat sufficient, provided, however, that it must be a mutual agreement between the county or counties and the State Highway Board ~ntered into in writing and spread upon the minutes of the proper authority of the county or counties and upon the minutes of the State Highway Board.
It is my opinion that each county within the State of Georgia is entitled to its pro rata share of the State-Aid Road Funds and when a county has been alloted its pro rata share it can not be used in another county unless an agreement is drawn up and properly executed as outlined in section 4 of the Highway Laws, which is quoted above.
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.

SCHOOL BONDS NOT TO BE ISSUED TO PAY MAINTENANCE DEBTS.
November 2, 1923. Hon. M. M. Parks,
State Superintendent of Schools, State Capitol.
Dear Doctor Parks :-Referring to the attached letter 133

of Hon. 0. M. Gresham, County School Superintendent of Burke County, reading 'as follows:
"We are contemplating a bond issue for our county which will enable us to pay our teachers promptly, make some much needed improvements, and take care of a deficit that we now show."
"Please advise me if it will be legally possible for us to issue bonds for the above named purposes, and if so give me any suggestions that you may have for putting the issue over."
"At present, this is merely being considered by the Board of Education, and we feel that it should be kept absolutely quiet until all our plans are formulated."
To the first paragraph quoted above I beg to say that:
Bonds are not to be issued for the payment of maintenance obligations, but for the building and equipment of scho<;>ls. The Board of Education has authority to make a survey of their needs, and borrow money to pay debts.
. Taxes must be levied and collected for the discharge of '
debts. I believe the foregoing answers all the questions propounded above.
Very respectfully yours, T. R. GRESS, Secretary.

STATE HIGHWAY BOARD-CONTEMPLATED IN LAW CREAT-

ING IT, THAT THE BOARD WOULD MAINTAIN AN OFFICE

IN STATE CAPITOL.

-

February 12, 1923.
Hon. John M. Holder, Chairman State Highway Department, State Capitol.
Dear Sir :-Replying to yours of this date, wherein you say-
"The State Highway Department has had offices in the
134

Peachtree Building in this City during the past two years.. Prior to that time the offices were in the Walton Building."
"About May 1, the State Highway Department will move from its present quarters to its own building at East Point. Now the question I wish to ask you is whether under the law the State Highway Department shall maintain headquarters in the City of Atlanta, and whether it should not have offices in the State Capitol? In other words, whether under the law the State Highway Department can have offices only at East Point, which is outside the City limits of the State Capitol of Georgia, and not to have offices in the capital city of the State."
By reference to Georgia Laws, page 125, it may be seen that the Act designated the Prison Commission of Georgia, the dean of the College of Civil Engineering of the State University, and the Professor of Highway Enginee:r:ing of the Georgia School of Technology, as the HIGHW,AY DEPARTMENT OF GEORGIA.
It was clearly within the contemplation of the Act, inasmuch as the Prison Commission of Georgia, had its offices at the Capitol, and transacted State and public business there, that the offices of the State Highway Commission would be located in the State Capitol.
The Act of 1919, reorganizing the State Highway Department (See Georgia Laws 1919, page 242), provides that The State Highway Department shall at once succeed without interuption to the duties and powers of the predecessor, not in conflict with this Act."
Neither the amending Acts of 1921, or 1922, in any manner refer to the question of locating an office far the chairman of the Highway Board.
It appears that the law has not undertaken to control or direct the Highway Board in the matter of the location of the office of the Board, and of its chairman.
While the Highway Board is not restricted in the matter of maintaining offices or buildings, there is no requirement of the statute that the Board shall have its administrative offices at the same place where the Highway Department may maintain a building.
The prime consideration is: In what manner can the
135

board best function? Where shall the chairman maintain his office, so that the public service may be best ad-
vanced? Many citizens from different parts of the State find it
necessary to consult with the chairman of the State Highway Board. It might be most inconvenient for numbers of them to have to go out to East Point to find the chairman. The State capitol is a convenient, accessible and familiar location. It is at once the most convenience place for citizens to reach, and for the chairman himself, because there are departments of the State whih he frequently needs to consult in connection with his manifold and important duties.
It appears that there is no legal reason why the State Highway Department should have offices only at any parthem located at the Capitol. The law raises no objection to arguments ar.e manifest that it is advantageous to have them located at the aCpitol. The law raises no objection to the latter course.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
STATE BOARD OF HEALTH NOT AUTHORIZED TO EXPEND FUNDS IN COUNTY HEALTH ENTERPRISES. THE COUNTIES BEAR SUCH EXPENSE.
May 17, 1923.
Doctor T. F. Abercrombie, Sectretary State Board of Health, State Capitol Annex.
Dear Doctor :-The delay in replying to yours of the fifth instant is regretted, but has been occasioned by pressure of details and suits coming up in this office.
136

Answering your inquiry as to whether the State Board of Health may employ local counsel and spend funds from its appropriation for the purpose of enforcing the provisions of the Ellis Health Law with relation to County Boards of Health, in the event it became necessary to apply for mandamus to enforce same, I beg to submit the following:
While under section 1662, of the Code of Georgia, the State Board of Health is given supervision of all matters relating to the lives and health of the people of the State, etc., the question is controlled by Code section 1673. This section is part of Chapter 7, of the Code, and Chapter 7 deals with the County Boards of Health, and of proceedings under their authority; section 1673 says:
"All costs and expenses necessary and proper for carrying out the provisions of this chapter shall be paid out of the County treasury." .
In section 1676, this principle is repeated in the following language:
"For effectually carrying out such rules and regulations, they may employ such officers, agents and employees, and incur such expenses as they may deem necessary, which salaries, compensation and expenses shall be paid out of the County Treasury, as are other county expenses."
Under this law it is manifest that the State Board of Health would not be authorized to expend its funds for the purpose of meeting the expenses which are, by the law abov~ quoted, laid upon the County Boards of Health.
However, should a given county decline to provide the funds necessary to cover expenses incurred by the County Board of Health, then it would seem to be the duty of the State Board of Health to proceed to mandamus the County officials and compel them to provide the funds.
Under the law directing the State Board of Health to enforce the provisions necessary to safeguard the health of the people of the State, it is my opinion, that you would be authorized to expend the amount from the funds of your
137

appropriation, for the purpose of employing local counsel to prosecute mandamus proceedings to enforce the provision of funds by the counties when they have failed to provide same.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
STATE HIGHWAY DEPARTMENT AUTHORIZED TO EMPLOY LEGAL ASSISTANCE. THE ATTORNEY GENERAL'S OFFICE TO RENDER ALL POSSIBLE LEGAL SERVICE.
Hon. John M. Holder, Chairman, State Highway Commission, State Capitol.
Dear Sir :-Replying to yours ()f the fifteenth instant, wherein you say:
"As you know, we are frequently calling on you for opinion for the State Highway Board. It is possible that this amount of work will increase instead of diminishing, and I write to ask whether or not, it is satisfactory and convenient for you to furnish to the State Highway Board all of the legal assistance that will be required from now until the convening of the General Assembly of the State?"
At the request of Governor Hardwick, we rendered such legal assistance as we were called upon to furnish up to the time of the meeting of the last General Assembly, and we believed they would make some arrangement to have the legal business of your department taken care of, either by authorizing the appointment of a special attorney for the Highway Board, or by expressly authorizing your board to employ legal assistance as needed. Having failed to do either of these things, the matter is left in a somewhat uncertain state, although it might appear that your board would have the authority to employ such legal assistance
138

as may from time to time be needed. However, we are ready to respond to any call on the part of the State, or its departments, within the bounds of our capabilities.
We will render you, in this office, every assistance, but it will not be possible for us to attend the courts throughout the State.
In my opinion, your department is clearly authorized to employ legal assistance. The Act, allowing you to sue and be sued, contemplates evidently that your board is authorized to employ counsel to' maintain the litigation, since the legislature declined to impose the further burden upon this office. But, we will undertake to assist you as above stated until the next meeting of the General Assembly.
We can, and will, arrange, in the event you have cases in the courts away from Atlanta, to procure legal assistance, and will try to have the business of your department taken care of. But it will simply be necessary for the legislature tO' authorize the employment of an attorney for your department, or give us another Assistant Attorney-General.
The business of this office has increased amazingly, and it is increasing all the time. The heavy work of the Banking Department, the special litigation concerning the Western & Atlantic Railroad Terminal property in Chattanooga, and the steadily increasing criminal business, which necessitates our preparing briefs in capital cases, averaging more than one per week throughout the year, besides the voluminous correspondence with the departments at the Capitol, and the county officials throughout the State, all combine to make up a round of business which simply keeps us burdened all the time.
Our secretary, Mr. Gress, does a full share of the work of assisting in briefing capital cases, in addition to taking care of the heavy volume of correspondence; but for his assistance, we would be unable to keep up at all.
I set these matters out so that you may realize how necessary it is for us to have help if our present volume of work continues.
139

We will cheerfully do our best for you, as above stated,
and assure you of our desire to cooperate with you in everything that will make for the successful handling of all matters in your very important department.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
TAX MUST BE PAID BY REFINERS OF FUEL OILS, SINCE LAW DEFINES REFINERS AS DISTRIBUTORS.
June 16, 1922.
Hon. Wm. A. Wright, Comptroller-General, State Capitol. Dear General Wright :-In re: Atlantic Refining Com-
pany. My attention was called to this matter day before yes-
terday, by Major A. W. Candler. It seems that, by some misadventure, the brief sent to me by Mr. Francis Brown, through the firm of Candler, Thompson & Hirsch, did not come to my attention. For that reason, the matter had remained in abeyance. I trust that this explanation may absolve me from the fault oi the apparent discourtesy of declining without reason, or explanation, to furnish an opinion in this matter, as had been agreed, upon your request.
The arguments set out by Mr. Brown are strong and persuasive, and my individual judgment might be constrained to yield to them, except for the provisions of the Act itself.
Section 1, of the Act on Taxation of Fuel Distributors (See Georgia Laws 1921, page 83) defines "distributors" in the following paragraph:
"An Act providing for an occupation tax upon all dis-
140

tributors selling fuels in this State, requiring all distribu-

tors therein to. register and make returns, providing penal-

ties for violations of this Act, and for other purposes."

"x X

X

X

X

X

X

X

X

X

X

X

X

XXXXXXXXXXX

XX

Distributors shall include any person, association of per-

sons firm or corporation, whether resident or located, who

imports or causes to be imported, fuels as herein defined

into the State, and also any person, association or persons,

firm or corporation, who produces, refines, manufactures or

compounds fuels as herein ?efined, within the State."

It is held expressly that a refiner of fuels is a distributor. Since it is thus clear it was the intent of the legislature to require the tax to be paid by refiners, every presumption must be given in favor of the Constitutionality of the Act.
In the instant case, the refiner who receives fuel oils from other States for the purpose of treating them in large quantities must, in finding a market for its product, ship to other States. Unless the State of Georgia subjected the fuels so treated and refined to the payment of a tax, the entire process of importing the crude oil, its refinement in a large plant in this State, and its sale and distribution throughout many States, would be accomplished without any return of revenue to the State. Evidently, the General Assembly of Georgia ought to bring the operation of the business of refining fuels under taxation, because it specifically names all refiners of fuel oils as "distributors."
We would regret to know that the payment of the named tax of one cent a gallon on the fuel oils sold or distributed by it would be disastrous to the Atlanta Refining Company. Although fully desirous to see effective in this State a policy which will encourage the location and profitable operation of such enterprises, the language of the Act in question is too clear and comprehensive to admit of any doubt as to the legislative intent; and, this being clear, every presumption is in favor of the Constitutionality of the Act.
It is, therefore, my opinion that, under the express terms

141

of said Act of 1921, the Atlanta Refining Company is required to "pay an o'ccupation tax of one cent per gallon upon every gallon of such fuel sold," and to comply with all the requirements of said Act of 1921. ,
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
PRINTING ANNUAL REPORTS-ACT CREATING DEPARTMENTS OF PUBLIC PRINTING CONTEMPLATES THAT ALL ANNUAL REPORTS BE HANDLED.
May 10, 1923.
Hon. Fred T. Bridges, Assistant Commissioner of Agriculture, State Capitol. My Dear Sir :-Replying to yours of the 9th instant,
wherein you submit the question whether the printing of the Annual Report of your Department should be handled by the State Superintendent of Printing, or independently of that Department, I beg to say that:
The Act establishing the Department of Printing for this State provides that in the event any piece of printing shall exceed in cost the sum of five hundred dollars, it shall be submitted to the State Printer, who will take it under the rates of payment for printing provided in his contract.
If the printing can be done at a cost of less than five hundred dollars, bids of individual printers can be considered, and the lowest accepted.
The scheme of this Act seems to contemplate that all Departments of the State will co-operate in saving money[ In the Act of 1921, covering appropriations, I find at page 19, the proviso that all Departments of the State Government, and all State institutions, shall be required by law to sub-
142

mit reports to the Governor, or the General Assembly, which they may be called upon to submit such reports to the Governor, together with the statement of the number of reports deemed necessary of such Department, and a statement of the expense of printing such report, and shall secure the approval of the Governor as to the number of copies to be printed, and the expense thereof "and no such report shall be printed without the approval of the Governor.''
Considering the terms of this Act, and of the Act creating the Department of Printing, it seems to me necessary that you shall submit the bids, and the estimate of expense to the Governor, and secure his approval. It appears to be advisable to let the State Department of Public Printing handle the printing of your report. This Department can certainly get as close bids as any one individual Department of the State Government can obtain, and, since it must be approved by the Governor, the natural and practical, as well as the legal, procedure will be to turn it over to the Department of Public Printing. It seems to me that the proviso above cited, in the Act of 1921 is absolutely controlling.
With assurances of high regard and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
143

HIGHWAY DEPARTl\IENT LIABLE TO OWNER FOR VALUE OF HORSE FATALLY INJURED IN CROSSING BRIDGE OVER STATE HIGHWAY.
September 25, 1922. Hon. John N. Holder,
Chairman State Highway Department, State Capitol.
Dear Sir :-Replying to yours of the 23rd, instant, to which you attach letter of Mr. C. L. Rhodes, Division Engineer, dated Waycross, September 14, and copy of your reply thereto, dated September 22nd, I beg to say:
It is my opinion that it is lawful and proper for the Highway Department to compensate the owner of the horse that was injured while crossing the bridge, and which had to be shot as a result of said injuries.
It may be noted that the owner of the horse places its value at one hundred dollars; that sum will buy a very excellent horse just now, and I would suggest that, while it is legal to pay the actual value of the horse, you might have an appraisal made of the value of this one by persons acquainted with the value of the animal, its condition, age and qualities. Whatever may be determined to be a just and fair value of the animal, it will be entirely legal, in my opinion, for the Department to pay to the owner of said horse.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
144

STATE HIGHWAY BOARD HAS AUTHORITY TO 1\IAKE TEM PORARY LOAN IN BANK.
December 6, 1922. Hon. John N. Holder,
Chairman State Highway Commission, State Capitol.
Dear Sir:-Yours of even date received. You ask for an opinion as to whether the State Highway Board may lawfully arrange to obtain funds from a bank, with which to carry on your budget system during the month of January.
A primary principle of law is that a statute shall be so construed as to carry into effect the legislative intention, and from the scheme and scope of the Act, it is apparent that the legislative intent was that the Highway Board should operate in a manner advantageous to' the State, and to effectuate economy in the expenditure of the State's money.
It authorizes the Board to sue and be sued, and to collect debts and credits within the scope of its undertakings and functions. It is my opinion, that the State Highway Board
has authority ta make a temporary loan in bank, and to
repay the loan with funds coming in its control. With assurances of highest regard and best wishes, I am. Very sincerely, GEO. M. NAPIER, Attorney-General.
145

STATE HIGHWAY BOARD-SHOULD COMPENSATE IN RIGHT OF WAY TAKEN FOR BUILDING HIGHWAYS, EVEN WHERE CLAIM FOR DAMAGES NOT INTERPOSED BECAUSE OF OVERSIGHT.
February 6, 1923.
Hon. John N. Holder, Chairman State Highway Department, State Capitol. My Dear Sir :-Replying to yours of the 13th ultimo,
to which I have been prevented, by reason of pressing matters, from giving an earlier reply, I beg to say that:
Since the Highway Board is authorized to settle claims for damages, and since the State does not desire that persons should take private property from any citizen without paying a just compensation therefor, it seems to me right that if Mrs. Cannon was prevented, by any reason, from making resistance to the taking of her property for right of way for the State Highway, that just basis of settlement should be arrived at now, and that she should be paid.
After the right of way has been seized, or taken by the road authorities, it is too late to enjoin the location of the road, but this rule ought not apply to the matter of compensation, if the party agreed to the taking of the right of way, or did not object at the time, he, or she, might be held to be estopped from making a claim for damages afterward, but if, for any reason, the claim for damages was not interposed because of oversight, lack of notice, lack of knowledge that she had any legal rights that could be exerted, I think the just course for the State to pursue would be to have the damages arrived at by some just plan of arbitration or otherwise and a settlement made.
It is a great thing for the State to have no citizens who are aggrieved because of any power which has been exerted
146

over the citizens which results in, or causes them to be sensible of injustice done him or her.
Trusting that this may have fully answered ydllr inquiry, and with assurances of the high~st esteem .and best wishes, I am,
Very sincerely your~ GEO. M. NAPIER, Attorney-General.
PRISON COMMISSION. CONVICTS. RULES FOR MANAGEMENT OF, ADOPTED BY PRISON EXECUTIVES SUBJECT TO DISAPPROVAL OF GOVERNOR FOR THE TIME BEING.
February 19, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-I have the honor to acknowledge receipt of yours of the 16th, instant, which is as follows:
"Section 1199 of the Code of Georgia of 1911, Volume 6, provides, in substance, that rules and regulations for the management, discipline and control of convicts of this State, and of convict camps shall be made by the Prison Commission of Georgia, subject to the approval of the Governor."
"The section above cited seems to be codified from the provisions of the Act of August 17, 1903."
"After the passage of that Act the Prison Commission of Georgia adopted a number of rules and regulations for the management, discipline and control of convicts. Since then the Prison Commission has, from time to time, submitted to successive Governors proposals to modify or change the rules and regulations above referred to."
"One of the rules originally made, under authority <Of the Act of 1903, provided for the flogging of convicts, under certain stipulations and regulations therein contained. Since this original adoption there has been no change in the rule above referred to."
"I am convinced, as a matter of law, that flogging in
147

our penitentiary camps is in violation of the spirit of the Constitution, and that under my oath of office to support and defend the Constitution of our State, I cannot permit its continuance, if the same is inflicted under the rules that can only exist by virtue of my approval. The contention is made, however, that the statute first cited does not contemplate that each succeeding Governor shall review and approve the rules for the government of the penitentiary camps, but once the rules as .a whole are approved by the Governor in office at the time of the adoption, under the authority of law cited, that the same remain in full force and effect, without regard to the approval or disapproval of any succeeding Governor, except insofar as the Prison Commission proposes to change, modify or alter any one or more of such rules, and that once the rules are adopted and approved by the Governor in commission at the date of such adoption, succeeding Governors have no power or concern with the matter, except as changes or modifications in the rules are proposed during his incumbency of the office of Governor."
"I trust that the above statement of the matter has made sufficiently plain the question which I now wish to present to you:"
"Does the section of the code first cited in tnis letter mean that I must approve the existing laws and regulations of the Prison Commission as a whole before the same can remain in force, or does it mean that I have only the power to pass on such changes and modifications of the rules as are submitted by the Prison Commission during my incumbency in the office of Governor?"
"I shall appreciate your opinion, as to what this law means as to what you deem my power in the premises to be."
On account of the importance of this question, I have
given the same more than ordinary attention, and my in-
vestigation of authorities has been most careful.
The Act on which the statute in question is based (See
Georgia Laws 1903, page 68) is as follows:
"The Commission shall have general supervision of the misdemeanor convicts of the State. It shall be the duty Of one of the Commissioners, or, in case of an emergency, an officer designated by them, to visit from time to time, at least quarterly, the various camps where misdemeanor convicts are at work, and shall advise with the county or municipal authorities working them in making and altering the rules for the government, control and management of said convicts; and in case the county or municipal authorities and such commission fail to agree upon the management, government or control of the same the Governor shall prescribe such rules; and if the county or
148

municipal authorities fail to comply with such rules or the law governing misdemeanor chaingangs, then the Governor,

with the Commission shall take such convicts from the said

county or municipal authorities, and deliver them to some

other county or municipal authority complying with the

rules and regulations prescribed by the Governor;

x

X

X

X

X

X

X

X

X

X

X."

The Statute, Penal Code, Section 1199, based on the fore-
going Act, is as follows:
"POWERS AND DUTIES OF THE COMMISSION. A.II convicts whether sentenced for felony or misdemeanor crimes, and all convict camps shall be under the .direct supervision of the Prison Commission, which shall provide rules and regulations for the management, discipline and control of said convict camps, subject to the approval of the Governor. The Commission shall have complete management and control of the State convicts; shall regulate the hours of their labor, the manner and extent of their punishment, the variety and quantity of their food, the kind and character of their clothing; and shall make such other rules and regulations as will assure their safe keeping and proper care."

It appears that the General Assembly contemplated changes, which might occur as often as quarterly "in mak-
ing and altering the rules for the government, control and management of said convicts ;" and that "in case the county and municipal authorities fail to agree upon the management, government or control of the same, the Governor shall prescribe the rules."
The following sections of the Code, based on the Act of 1890-1, pp. 211; 2.12, are pertinent in this connection:
Penal Code section 1175:
"The authorities of any company or municipal corporation, employing or having labor performed by convicts in such county or municipal corporation, may appoint a whipping boss for such convicts, and fix his compensation and prescribe his duties. Proper and necessary discipline may be administered by the superintendent or other officer or person having control, under authority, of a convict, without the employment of a whipping boss."

Penal Code section 1177 :
"RULES TO BE PREPARED AND PUBLISHED FOR
149

GOVERNMENT OF CONVICTS. Said authorities shall prepare and have published full and complete, reasonable and humane rules and regulations for the government of the convicts under their control, which rules may be amended as occasion may require, but shall specifically prescribe the powers and duties in all respects, of the superintendent, commissioner, guard, whipping boss, or other
pers<;>n conected with the manageemnt of convicts, as to their care, keeping, control, work and discipline."

It may be noted that under the last mentioned section, the authorities hiring the convicts were given power to adopt humane rules and regulations for the government of the convicts under their control "which may be amended as occasion may require."
In 1897, the Act authorizing the creation of the Prison Commission was passed by the legislature. In 1903, as aforesaid, was enacted the statute first hereinbefore quoted.
It now becomes essential to inquire: : How long does the approval of a Governor, in matters such as are contemplated in relation to adopting rules for the control of convicts, continue of force and effect? Does the approval of the Governor bind all Governors who take office afterward?
In Section 509, of Mechem "The Law of Offices and Officers," it is said:

"AUTHORITY LIMITED TO OFFICIAL TERM. So it

is evident- that the authority of the public officer must be

limited in its exercise to that term during which he is by

law invested with the rights and duties of the office.

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

x."

Section 513, Idem, reads as follows:
"SAME SUBJECT-LIMIT TO DISCRETION. So although the terms of the law creating the authority confer upon the officer general discretionary power without qualification, his authority is not to be deemed an unlimited one. The exercise of the officer's discretion is still limited, by legal construction, to the evident purposes of the Act, and to what is known as sound and legal discretion, excluding all arbitrary, capricious, inquisitorial and oppressive proceedings."

Considering the law applicable to the instant question, 150

and the evident legislative intent concerning the making of rules and regulations relating to the control of convicts by should be made as frequently as might be deemed necessary, our Prison Commission, that is to say, that such changes it is my opinion that a succeeding Governor is not prevented, under the law, from requiring revision of such rules and regulations as had been approved by his predecessors in ,office. To hold otherwise, would make possible the fastening of rules which might be objectionable to the Executive in office, the prevention for a long term of years of humane modification, or of changes requiring, in some instances, more efficacious handling of the convicts. Yet, of course, the law does seem to contemplate such changes and revisions as the experience and enlightened consciences of strong, able men capable of filling the office of Prison Commissioner, and of those men worthy to be called to the seat of Chief Executive of the State, might suggest as deserving of adoption in the discharge of the difficult questions which arise in connection with managing and controlling recalcitrant and obstreperous convicts, and in keeping with the trend toward such humaneness as may be possible in securing their labor and their obedience while in penal servitude.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
:STATE SCHOOL COMMISSIONER-VACANCY IN OFFICE OFGOVERNOR AUTHORIZED TO APPOINT FOR REMAINDER OF THE TERM.
July 17, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick :-1 have the honor to acknowl-
151

edge receipt this morning of your letter of 'tihe 15th, instant, in which you say:
"It is probable that a vancancy is about to occur in the office of the State School Commissioner. The executive records show that the present State School Commissioner qualified as such on June 26, 1921, and was commissioned by me as such to serve until June 26, 1923."
"I wish to submit to you the question as to whether in the event of a vacancy, I have the authority to apponit a successor for the remainder of the full term of the incumbent, as shown by the executive records, or to what extent I have authority to make an appointment to fill the vacancy, or whether or not the people will be called upon to elect such successor in the general election of next November."
Code section 6483, which is a provision of the Constitution of this State, pro'vides:
"When any office shall become vacant, by death, resignation, or otherwise, the Governor shall have the power to fill such vacancy, unless otherwise provided by law; and persons so appointed shall continue in office until a successor is commissioned agreeably to the mode pointed out by this Constitution, or by law in pursuance thereof."
There seems to be no provision relating to a vacancy in the office of the State School Commissioner, or State Superintendent of Schools, such as pertains to Judges of the Supreme and Appellate Courts, to' the effect that the appointee shall hold his office until the next regular election, and until his successor shall have been elected and quali-
fied. It is, therefore, my opinion, that Your Excellency has
the authority, under our laws, in the event of a vacancy in the office of the State School Commissioner, to'appoint a successor for the remainder of the term of the present incumbent, as shown by the executive records; and that the successor to this office, elected in the general State election this year will begin his term at the expiration of the term for which the present incumbent was commissioned.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
152

ELECTIONS. GOVERNOR AUTHORIZED TO FURNISH ORDINARIES WITH BLANKS, ETC. BUT NOT REQUIRED TO GIVE NAMES OF CANDIDATES ON TICKETS.
October 5, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear. Governor Hardwick :-Because of the absence of the Attorney-General, I am taking the liberty of answering your inquiry of the 5th, instant, to which is attached some correspondence with Mr. R. W. Jordan, of Atlanta, who demands that the name of Captain W. H. H. Phelps be printed for the office of Commissioner of Pensions in the approaching election. Answering your inquiry as to your duty in the premises, I beg to say that:
Your duty is prescribed in Article 6, volume 1, of the Code of Georgia, in sections 86, 87, and 88, which are as follows:
"86. Blanks to be furnish by the Governor and Ordinary. The Governor shall furnish the several Ordinaries all blank forms necessary for said elections, which shall be furnished the Justices of the Peace, or notaries public who are exofficio justices of the peace of their counties, at least ten days before the election day, and on failure to do so, shall be liable to a fine not exceeding one hundred dollars."
"87. Additional blanks to be furnished by the Governor. In addition to the blank forms mentioned in the preceding section, the Governor shall furnish to the proper authorities of the several counties for all State, presidential, congressional, and county elections, sufficient blanks, tally sheets and blank lists for voters."
"88. How printed. The tally sheets shall have printed therein proper headings and certificate, and, as far as practicable, the names of the several candidates, and the blank list of voters shall have printed therein proper headings. and certificates."
It seems from the foregoing that it is your duty to have tally sheets printed, with proper headings, and certificates,
153

but that unless it is practicable, you are not required to print the names of the candidates on these ta.lley sheets.
Trusting that this is the information required, and returning herewith the correspondence which accompanied your inquiry, I have the honor to remain,
Very respectfully yours, T. R. GRESS, Secretary.
FLOGGING OF CONVICTS. SPIRIT OF CONSTITUTION AGAINST FLOGGING OF CONVICTS NOT INDICTABLE OFFENSE, THOUGH VIOLATING SPIRIT OF CONSTITUTION.
Ron. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor :-Replying to your inquiry as to whether it is now lawful to inflict flogging upon convicts and prisoners in this State, I beg to say, after careful research:
The Constitution of the State (See Code section 6363), provides:
"Neither banishment beyond the limits of the State, nor whipping, as a punishment for crime, shall be allowed."
What is a crime?
"A crime is an act committed or omitted in violation of a law, either forbidding or commanding it; a breach or violation of some public right or duty to a whole community, considered as a community in its social aggregate capacity, as distinguished from a civil injury."
(Black's Law Dictionary). "A crime is a wrong which the Government notices as injurious to the public." "A crime is a voluntary act proceeding from a wicked motive."
(Words and Phrases, vol. 2, page 1736).
Our Penal Code clearly defines a crime at section 31.
"A crime or misdemeanor shall consist in a violation of a public law, in the commission of which, there shall be union, or joint operation of act and intention, or criminal negligence."
It may be broadly stated that no act may be legally termed a crime unless it is an indictable offence.
As the word "crime" is used in the Constitution of Geo:r154

_gia, it comprehends and includes all penal offenses, against the State and also against the ordinances of municipalities.
(See Person vs. Wimbush, 124 Ga. 708).
Therefore, the punishment of a stubborn, or sullen convict, is not the punishment of crime. The whipping of a .eonvict is the administration of prison discipline.
Our constitution further provides in Code section 6365 :
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison."
Excessive and unusual punishment shall not be inflicted .and no person shall be abused in prison, is the sense of this section, so far it applies to the instant question.
Is whipping a cruel and unusual punishment? Is the application of a flogging in prison an abuse of the prisoner?
Different grades of severity, and the infliction of the punishment upon various individuals from different strata of society would enter into the equation as to the cruelty of the punishment.
Does the greater include the less-does the prohibition of whipping as a punishment for crime carry with the fact an implied prohibition of whipping as a means of prison discipline?
Our Constitution expressly prohibits whipping ".S a punishment for crime, and prohibits cruel and unut~ual punishment upon prisoners in prison. If whipping is a cruel and unusual punishment it is illegal, because in conflict with the Constitution.
It may be said that for a considerable period of time in this and other States whipping was not considered a cruel or unusual punishment. Public opinion, constrained and modified by the influences of advancing civilization takes a changed and changing view of such matters, however, .and, no doubt, the consensus of opinion in this day would
155

condemn a heavy and severe flogging as cruel if not unusual.
Prison discipline in this State is enforced under rules and regulations promulgated by the Prison Commission. There is no express law forbidding whipping when deemed necessary in controlling a refractory convict. Yet, the Constitution, as aforesaid, impliedly at least, seems to forbid it.
Improved regulatiqns in the prison life of our convicts are indicated if it is actually necessary under our present penitentiary conditions to flo'g some of them into submission, because our constitutional provisions, as well as modern public opinion, seem to hold this form of punishment a survival of a period when human emotions were less refined than now.
In my opinion, the whipping of a convict, where deemed necessary to subdue or control him, administered under regularly adopted rules of the Prison Commission, is not such a violation of the law, that the same would be indictable; yet, it seems to be in violation of the spirit of the Constitution of Georgia, as hereinbefore stated.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
FALL ADOPTION OF SCHOOL BOOKS PREFERABLE TO SPRING ADOPTION.
January 24, 1923. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor :-In acordance with your instructions, I have very carefully considered the letter of Mr. Victor R. Smith, and the brief of Colonel E. E. Pomeroy, on the subject of school book adoption for the public schools of this. State.
156

A Spring adoption may not be faced with insuperable obstacles; yet, if practicable, it would be wise to defer adoption until Fall, in order that the General Assembly may clear up some features of the law.
In considering certa~n provision_s of the Yeomans Law some months ago, in order to avoid an impasse, I adopted an authorized and recognized course, by asking the author of the Act what the Legislative intent was. Upon Mr. Yeoman's statement, I made a qualified approval of bonds filed by the publishers, with their listing of school books, thus preventing for the time, a serious situation for our schools.
The provisions of the law regarding exchange prices of books should not, in my opinion, be lightly considered, nor set aside.
If it is possible to defer the adoption, and to have the General Assembly consider amendments to the law in its coming session, and thus to allow adoption as early in the Summer, as possible, so as to give publishers as much time as may be allowed, the situation would develop more satisfactorily than would seem probable by having the adoption of school books this Spring.
With assurances of highest regards, Respectfully submitted, GEO. M. NAPIER, Attorney-General.
SHERWIN-WILLIAMS COMPANY. BOND REQUIRED. SUITS NOT ADVISABLE ON PART OF STATE.
February 17, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia,
Dear Governor Hardwick :-Sometime ago, you directed that I look into the question of the enforcement of the contract which our State Board of Entomology had with the
157

Sherwin-Williams Company to furnish calcium arsenate for the use of our farmers at a certain price. Without burdening Your Excellency with a detailed account of the various transactions, it may be stated that no binding bond was taken from the Sherw~n-Williams Company, and, therefore, the only recourse would be straight suits against that concern; and a question is raised whether such a suit could' be maintained.
It is plausible to contend that farmers who sent in their cheques to pay for calcium arsenate for use at the close of the Season of 1922 and for the Season of 1923 wo'Uld be entitled to recover from the Sherwin-Williams Company for the d~ference in the price at which the Sherwin-Williams Company agreed to sell calcium arsenate at nine cents per pound and the price it would have cost the farmers for it bought elsewhere. The Sherwin-Williams Company, through its Attorneys have finally written me that they decline to pay anything because the contract was unilateral and void.
In my opinion, it will be impossible for the farmers, and others who undertook to purchase calcium arsenate from the Sherwin-Williams Company in the early Fall of 1922' to prove to any Court that the damage sustained is computible in money, and, therefore, a suit fo'r such damages could not be maintained in the Courts.
But it does not occur to me that the State of Georgia isunder obligation to bring a suit or suits in this connection, but those who undertook to purchase calcium arsenate under the bid of the Sherwin-Williams Company should be left free to maintain their suits, either individually or enbloc.
Honorable James A. Hixon, of Americus, Georgia, has been consulted by parties who undertook to purchase considerable quantities of calcium arsenate in the latter part of the Summer of 1922, and I suggested to Hon. Ira Williams, General Field Agent of the State Board of Entomology, that he might encourage all persons who had sent their cheques for the purchase of arsenate to send their
158

claims to Mr. Hixon, in order that he might handle all o;f them. Mr. Williams expressed doubt as to whether such action is within his province, since he understood that it was Your Excellency's intention to turn the matter over to this office.
Permit me to make the suggestion that you might, if you see fit, direct Mr. Williams to inform those who sent cheques to handle their claims in that manner; that is to select counsel for this purpose and in that connection to consider whether it would be to their advantage to have one lawyer, or firm of lawyers, to handle the claims as a group and thus combine the entire litigation into as limited space as possible.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
EXPENSES OF TRIALS FOR ESCAPES PAID BY THE STATE.
November 6, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In reference to the bills of Honorable Doyle Campbell, Solicitor General, for costs due officers of the court in certain cases of escape, on which
to I am advised by Honorable Walter E. Vance, Warrant Clerk,
that you desire opinion as the legality of having thes'e sums paid by the State out of the contingent fund, I beg to say that:
Your Excellency's attention is called to an opinion of Honorable Thomas S. Felder, Attorney-Genera!, under date of February 11, 1913, in which he says:
159

"The expense of all trials for escapes from the penitentiary or attempts to escape, and for all other crimes committed by penitentiary convicts while confined in the penitentiary shall be paid by the State, upon a bill of costs, to be certified by the judge trying the case."
"Section 232 of the Penal Code gives the Superior Court of the county where the escape of a penitentiary convict occurs jurisdiction to try the offense. These two sections of the code evoluted from statutes which required the Superior Court of Baldwin County to try prisoners who escaped from the penitentiary, and made the expenses of such
trials a charge against the State, payable on certificate of the clerk of the Superior Court of Baldwin County by warrant of the Governor. Cobb's Digest (1851) pages 837, 867. When the statutes were enacted the State confined her felony convicts in a central penitentiary, located in Baldwin County. The leasing of these convicts and the scrattering them about the State in the several counties where they were worked by the lessees, brought about the change in the law to the present reading of the sections of the Code mentioned. The Act of 1908 (Acts 1908, page 1119) did not make any change in the law in regard to the crime of escape
nerfrom the penitentiary, the venue of the crime, or the manof the payment of the costs of the trial. The~ subjects are not mentioned in the Act, nor is there anything therein, which conflicts with or repeals by implication any qf the sections of the Code covering the same. It is still a crime for a prisoner to escape from the penitentiary, and the offence is triable in the county where the escape occurs. Penal Code sections 321, 33. This being true there does not appear to be any reason why the costs sho'Uld not be paid as heretofore under the provisions of Code section 1230, above quoted. A felony convict working in a county of the State upon public works and roads under an allotment made to the county by the Act of 1908, is "confined in the penitentiary," and if he escapes from such confinement, his escape "is from the penitentiary." His sentence is that he
160

me recently, have not been answered earlier because, during such time as has been available, the subject has had my careful consideration and persistent investigation.
Colonel Clark submits the question whether the term of the Commissioner of Pensions, does not run concurrently with that of the Governor, and State House officers.
The office of the Commissioner of Pensions was created by the Act of 1896, and is to be found codified in Penal Code section 1468.

Section 1469, of the Penal Code, provides:

"Said election shall be held under the same rules and

regulations as now apply to the election of Governor, State

house officers, and members of the General Assembly, and

at the same time; and all subsequent terms of said of-

fice (except the first) shall begin and .end illj the same

way and at the same time with the Governor and all State

house officers so elected."



The Constitution of Georgia, (see Code section 6473),
provides as follows:
"The returns for everv election of Governor shall be sealed up by the Managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two houses shall have been organized, and they shall be transmitted by the Senate to the Hoiuse of Representatives."

And the Constitution, Code section 6489, provides:
'The Secretary of State, Comptroller-General, and Treasurer shall be elected by persons qualified to vote for members of the General Assembly, at the same time, and in the same manner as the Governor. The provisions of the Constitution as to the transmission of the returns of election, counting the votes, declaring the result, deciding when there is no election, and when there is a contested election, applicable to the election of Governor, shall apply to the election of Secretary of State, Comptroller-General, and Treasurer; they shall be commissioned by the Governor and hold their offices for the same time as the Governor."

The Act of 1918 (See Georgia Laws 1918, page 154) un161

be punished by imprisonment and labor in the penitentiary and, if working the public roads is not such confinement, then his detention would be illegal, and to escape, therefrom would not be a crime."
"The records of the Comptroller-General's office disclose that for many years during which this class of convicts were worked under lease the costs of the trials for escapes were paid by the State to the officers of the court wherein the trials were had, by warrant of the Governot on the contingent fund. I do not find anything in the present condition of the law to call for any change in this long continued practice of the Executive Department. In my opinion section 1230 of the Penal Code is in full force and effect."
There is nothing in the law, or the decisions of our Su4 preme Court to change or modify in any respect the aforesaid opinion of Attorney-General Felder.
In the absence of some act of the legislature authorizing the payment of these costs out of some other fund, it is my opinion, that the same should be paid by warrant of the Governor on the contingent fund.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
PENSION COMMISSIONER-TERM OF RUNS CONCURRENTLY WITH THAT OF GOVERNOR AND STATE HOUSE OFFICERS.
December 19, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-The letters of Honorable John W. Clark, Commissioner of Pensions, which you referred to
162

dertook to change the method of making returns of. the election of every other officer, save the Governor, the Secretary of State, State Treasurer, and Comptroller-General. The second section of this Act was deemed inefficient and insufficient after the decision of the Supreme Court in:
Napier vs. McLendon, Secretary of State, 151 Ga. 559: and the Act of 1921, (See Georgia Laws 1921, page 232) sought to remedy the defect, and a new section 2 for the Act of 1918 was enacted as follows:
"That the returns of the election of every civil officer, who is to be commissioned by the Governor shall be sealed up in a separate package and transmitted to the Secretary of the State, whose duty it shall be to open the returns, consolidate the vote and declare the result and certify to the Governor, the names of the persons elected, and the Governor shall issue commissions to such officers as shall appear from the certificate of the Secretary of State to have been elected."
While the returns of the election of the Secretary of State, and other officers of the Executive Department are excepted in Section 1, of the Act of 1918, the new section 2 says the changes in the method of making returns apply to "every civil officer who is to be commissioned by the Governor," as provided in the Constitution. (Code section 6409).
Note that the Secretary of State, the State Treasurer. and the Comptroller-General are to be commissioned by the Governor, but this Act does not undertake to change the manner of making returns of their election, because the Constitution provides for that.
Section 3 of the Act of 1918, provides that the terms of the officers last mentioned, that is to say: "Every Civil officer who is to be commissioned by the Governor,'' shall commence on the first day of January next after they are elected. But this expressly does not include the Secretary of State, the State Treasurer, and the Comptroller-General.
The law creating the office of the Pension Commissioner provides specially and specifically that this office shall be
163

elected "under the same rules and regulations as now apply to the election of Governor, State House officers, and members of the General Assembly, and at the same time ; and all subsequent terms of said office (except the first) shall begin and end in the same way and at the same time with the Governor, and all State House officers so elected."
In the case of:
Napier vs. McLendon. Secretary of State, 151/563. the Court says:
"Inasmuch as we find express provision for the manner of making returns of an election for Attorney-General, that provision of the Constitution embodied in section 6409 of the Civil Code, and in the following language: 'Returns of election for all civil officers elected by the people, who are to be commissioned by the Governor, and also for the members of the General Assembly, shall be made to the Secretary of Stat.e, unless otherwise provided by law' is not applicable here."
It will be seen therefore, that the Supreme Court held that where express provision has been made for the manner of making returns for the election of an officer, the provision of the Constitution, contained in section 6409 of the Code do'es not apply.
Express provision has been made for the manner of holding the election, and making returns thereof, of Commissioner of Pensions. This must be done, says the statute, in the same manner as the returns for Governor, and other officers of the Executive Department. The manner of making returns of their election is fixed by the Constitution.
The Pension Commissioner is an extra officer of the State. The office was created for a limited period. It might be said to be an office apart from the other civil offices of this State. It is expressly made to accord with the office of Governor, Secretary of State, Treasurer and Comptroller-General.
While the matter seems to be in great doubt, my opinion is, that the term of office has not legally been changed by
164

the Acts above referred to, and, in the lig(ht of the decision of the Supreme Court above cited.
My conclusion then is, that the unexpired term of the late lamented Commissioner of Pensions, Honorable John W. Lindsey, extends to June 1923, exactly as does that of the Governor and other officers otf the Executive Department.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

TERM OF APPOINTEE TO FILL UNEXPIRED TERM OF JUDGE JOHN T. PENDLETON, OF FULTON SUPERIOR COURT.

September 2, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-Replying to your request fol" an immediate opinion as to the length of the term you are empowered, under the law, to commission the successor to Honorable John T. Pendleton, Judge of the Superior Court of the Atlanta Circuit, who has tendered his resignation, I beg to say that this matter is controlled by secl.tion 4834 of the Code, which provides as follows:

"X

X

X

X

X

X

X

X

X

Every vacancy occasioned by death, resignation or other

<;ause shall be filled by appointment of the Governor um

the first day of January after the general election hela

after the expiration of thirty days from the time such

vacancy occurs, at which election a successor for the un-

expired term shall be elected."

Since more than thirty days will elapse between the appointment to the next general election, the successor to Judge Pendleton will need to be elected in the approaching
165

General Election, and the person so elected would be entitled to take office on January 1, 1923. Therefore, in my opinion Your Excellency is authorized to appoint a successor to Judge Pendleton, who will fill the office until January 1, 1923, and until his successor is elected and qualifies.
I have the honor to be, with best wishes and high regards, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
PERSON UNDER SIXTEEN YEARS OF AGE NOT AUTHORIZED TO DRIVE AUTOMOBILE, UNLESS HAVING HAD EXPERIENCE AND ACCOMPANIED BY OWNER OF THE CAR.
May 28, 1923.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick :-In reply to your request that we submit opinion in reply to the letter of Hon. E. L. Darling, Mayor of Blackshear, Georgia, I have the honor to submit the following:
"Is it against the law for one under sixteen years of age to drive an automobile, if they are accompanied by an older person?"
In Georgia, to make it lawful for a child, under sixteen, to drive an automobile, such minor must have had twelve months' previous experience in operating automobiles, and must be "accompanied by the owner of the machine at the time."
If the parent of the child, or some other older person beriding by the side of the minor, under the age of sixteen years, who is operating an automobile, it is not lawful un-
166

less the child so driving has had twelve months experience in operating automobiles, and unless the older person accompanying the child is the owner of the car.
Code section 828 (1) reads:
"It shall be unlawful for any person who is intoxicated, or under the age of sixteen years at the time, unless such minor shall have previously had twelve months' experience in the operation of automobiles, and is accompanied by the owner of the machine at the time, to propel or operate a machine on any of the highways," etc.
Section 528 (c) of the Penal Code makes it a misdemeanor to violate any provision of the foregoing section.
Eliminating the reference to an intoxicated person. the law would read:
"It shall be unlawful for any person under the age of sixteen years, at the time, to operate a machine on the highways, unless such minor shall have previously had twelve months' experience in the operation of automobiles, and is accompanied by the owner of the machine at the time."
The mere presence of an older person with the child under sixteen years of age driving a car, will not make it lawful for such minor to operate the car any more than it would make it lawful for an intoxicated person to drive a car when accompanied by a sober person.
It would be unlawful for a minor, under the age of sixteen years to acquire twelve months experience in operating automobiles within the State of Georgia; but the parents of such a minor might come from another State and be driving through Georgia. Such child might be accompanied by the owner of the machine. If so, it would not be unlawful for the child to drive the car.
The statutes show regard for human life. And this law is specific. It is unlawful for a child under sixteen years of age to drive an automobile, unless such child has had twelve months' previous experience; and, unless at the time the owner of the car being driven accompanies such child.
167

Both of these facts must exist, in order to make it lawful for such a child to operate an automobile on the highways of the State of Georgia.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
BANK NOT AUTHORIZED TO SELL SECURITIES WITHOUT LICENSE, EXCEPT WHEN CONVERTING SECURITY DEPOSITED OR HYPOTHECATED WITH IT.
May 31, 1923. Hon. Thomas B. Connor,
Chief Examiner, State Capitol.
Dear Sir :-In reference to the liability of a bank selling securities in this State, without license from the Securities Commission, about which you have heretofore asked my opinion, I beg to submit the following:
The following paragraph in section, of the Act of 1922, known as "The Georgia Securities Law," applies to banks, as well as to other corporations, firms or individuals:
"The term, or word 'dealer' shall be deemed to include any person, company, trust, partnership or association, incorporated or unincorporated, selling or disposing of any such securities through agents or otherwise, or engage in the marketing or quotation of securities either directly or indirectly or through agents or underwriters, or any stock promotion scheme whatever."
A bank, unless it is converting some security deposited or hypothecated with it, cannot engage in the business of selling securities, unless authorized so to do by the Securities Commission.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
168

STATE AID ROAD. RE-LOCATION. COMPLETE CHANGE NOT FAVORED.
June 23, 1922.
Hon. John N. Holder, Chairman State Highway Board, State Capitol. Dear Sir :-Replying to your inquiry as to the scope and
meaning of the language contained in the Act of, 1921, page 200, amending the State Highway Act of 1919, the said language being as follows :
"Provided that the said State Highway Department shall take over the State Aid Roads as above mentioned on or before January 1, 1922, and provided further that when the various counties have complied with the law with reference to right-of-way, and provided further that the said Highway Department in taking over said roads is not bound to the right of way of the road beds as located on January 1, 1922, but shall have the right to re-survey and relocate said roadbed and right of way and it shall be the duty of the county or counties in which re-surveys and re-locations are made to furnish the right of way or the re-location and re-survey free of charge to the said Highway Department."
From a technical point of view this verbiage is not difficult of understanding.
The terms "re-survey" and "re-locate" mean to survey again and locate again.
"'Re-survey,' as used in Rev. Laws, section 2920, providing that, if the terminations and boundaries of a highway cannot be ascertained, the selectmen may re-survey the highway, means to re-locate it and the lines may be where originally located, or may be elsewhere. To say that the word 're-survey' means nothing more than to locate the lines of the boundaries in their original location is to give to the law a too narrow construction. Culver vs. Town, of Fair Haven, 31 Ttl. 143, 144, 67 Vt. 163."
The sole object of a re-survey is to ascertain the location of the road, and its boundar~es precisely as they were established by the original survey.
169

Caulkins vs. Word, 27 Iowa, 609. But the language shows clearly that in re-locating the road, the Highway Board is not held either to the road bed or right of way of the road as located and surveyed. The power of the Board is ample and liberal. However, in my opinion, it is manifest that it was the legislative intent to adhere as closely as practicable to the original survey or location of the roads taken over by January 1, 1922, even in the event certain changes in the loeation of the road bed and right of way be found necessary. It is within the province of the Board to partially change even the route of a located road where the topography of the terrain indicates the necessity of such change, but the language of the Act indicates that a co'mplete change in a route once adopted is not favored.
Respectfully Submitted, GEO. M. NAPIER, Attorney-General.
HIGHWAY DEPARTMENT HAS POWER TO MAKE DEBTS, AND TO ARRANGE FOR OVERDRAFTS ON BANK.
October 30, 1922.
Hon. John N. Holder, Ch.airman State Highway Department, State Capitol. Dear Sir :-Yours of the 27th, instant, just received,
wherein you ask:
"A budget will be made for each month for the general office, and for each division, and the money provided with which to pay this budget for the general office and each division."
"As you well know, the funds for the State Highway Department do not come into the Treasury in any very large amounts until after the month of January. We would like to get from the Banks of Atlanta about $65,000.00,
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with which to pay the expenses for the month of January, this money to be repaid not later than March 1."
"The opinion I want from you is whether or not it is legal for the State Highway Department to make this temporary loan, which we will ask the Governor to approve before it is made, and will ask the Attorney-General to draw up the papers making it legal."
You also suggest that it may be possible to make arrangements with the banks to repay them if they would 1et the State Highway Department overdraw until suffident funds come into the Treasury, and from the Treasury turned over to the State Highway Board so that the overdraft might be covered at an early date.
I have not had time to look into the matter very carefully, but, until I do so, could only express some doubt as to the legality of the Department making a loan from the banks, but should the banks accommodate the Department and allow an overdraft, the entire amount of money set .aside for the Highway Department is subject to its debts, and, therefore, there would be no trouble on that line. 1
If you wait until January 1st, and the banks allow you to overdraw from time to time, with the understanding that as soon as the money is received by your Department from the Treasury, it would be deposited in the banks, and thus cover the overdraft, that would be the better way to handle it in my opinion.
If you find that this is not acceptable, please let me know .a day or two later, and I will make a critical examination of the law, and render you further opinion.
With best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
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STATE HIGHWAY DEPARTMENT. CHAIRMAN AUTHORIZED TO HAVE OFFICE AT CAPITOL.
Feburary 12, 1923.
HO'll. John N. Holder, Chairman State Highway Department, State Capitol. Dear Sir :-Replying to yours of this date, wherein you
say:
"The State Highway Department has had offices in the Peachtree Building in this City during the past two years. Prior to that time the offices were in the Walton Building."
"About May 1, the State Highway Department will move from its present quarters to its own building at East Point. Now the question I wish to ask you is whether under the law the State Highway Department shall maintain headquarters in the City of Atlanta, and whether it should not have offices in the State Capitol? In other words, whether under the law the State Highway Department can have offices only at East Point, which is outsidethe City limits of the State Capital of Georgia, and not to have offices in the capital city of the State."
By reference to Georgia Laws, page 125, it may be seen that the Act designated the Prison Commission of Georgia, the dean of the College of Civil Engineering of the State University, and the Professor of Highway Engineering of the Georgia School of Technology, as the HIGHWAY DEPARTMENT OF GEORGIA.
It was clearly within the contemplation of the Act, inasmuch as the Prison Commission of Georgia, had its offices at the Capitol, and transacted State and public business~ there, that the offices of the State Highway Commission would be located in the State Capitol.
The Act of 1919, reorganizing the State Highway Department (See Georgia Laws 1919, page 242), provides that The State Highway Department shall at once succeed without interruption to the duties and powers of the predecessor, not in conflict with this Act."
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Neither the amending Acts of 1921, or 1922, in any manner refer to the question of locating an office for the ,chairman of the Highway Board.
It appears that the law has not undertaken to control or direct the Highway Board in the matter of the location of the office of the Board, and of its chairman.
While the Highway Board is not restricted in the matter of maintaining offices or buildings there is no requirement of the statute that the Board shall have its administrative ,offices at the same place where the Highway Department may maintain a building.
The prime consideration is: In what manner can the Board best function'! Where shall the chairman maintain his office, so that the public service may be best advanced?
Many citizens from different parts of the State find it necessary to consult with the Chairman of the State High~ way Board. It might be most inconvenient for numbers of them to have to go out to East Point to find the Chair~ ,man. The State capitol is a convenient, accessible and fa~ miliar location. It is at once the most convenient place for citizens to reach, and for the Chairman himself, because there are Departments of the State which he frequently needs to consult in connection with his manifold and im~ portant duties.
It appears that there is no legal reason why the State Highway Department should have offices only at a par~ ticular place outside the State Capitol, while many prac~ tical arguments are manifest that it is advantageous to have them located at the Capitol. The law raises no objection to the latter course.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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INHERITANCE TAX. NOT PAID-QUERY: WHETHER ADMINISTRTOR WHO HAS BEEN DISMISSED CAN BE FORCED TO PAY THE TAX.
August 4, 1922.
Hon. William A. Wright,
Comptroller~General,
State Capitol.
Dear Sir :-Replying to your question submitted in theletter of Hon. J. 0. Fussell, Tax Collector, of Terrell County, to-wit:
"I have a little inheritance tax that was paid to me in the following way; there were four children who got the property, and three of them have paid, and as the fourth I have not been able to locate him. I also understand that this one only got some money and has spent all of this, and has nothing that the money could be made out of.. x x x x x x x x The administrator of this estate had been dismissed before any of this tax was called to their attention. Mr. W. E. Brown, who looked after this says that he don't think he should have this to pay for it was never called to his attention until after his dismissal."
Code section 1041 (e) provides that if the property is subject to the inheritance tax and is in the form of money, the administrator shall deduct the amount of the tax before paying it to the parties entitled thereto. Section 1041 (g) provides that every administrator and executor of an estate having property subject to an inheritance tax shall, within three months after his appointment, make and file with the Ordinary; and upon neglecting O'r refusing to file such inventory shall be liable to a penalty not exceeding $1,000.00, to be recovered in an action brought by the Solicitor-General of the Circuit in which the property is located.
If the administrator complied with the law and has been duly dismissed, the tax would not be recoverable, since the: party receiving the estate has spent the money.
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If the administrator did not comply with the law requiring inventory to be filed, then it is doubtful if the tax due could be recovered in the manner above indicated.
Yet section 1041 (o) provides that no final account of the administrator shall be allowed by the court of ordinary unless and until all taxes passing through the administrator's hands have been paid.
The question arises, whether the provisions of the tax inheritance law have been followed by those interested.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
TAXES FOR BUILDING SCHOOL HOUSES MAY NOT BE LEVlED BY COUNTY BOARD OF EDUCATION..
May 24, 1923.
Hon. F. L. Cochran, Superintendent of County Schools, Blue Ridge, Georgia. My Dear Sir :-This is to acknowledge receipt of yours
of the 21st instant, which has just come to hand, in which you say:
"Please inform me as to whether the Board of Educacation of a County can legally levy and collect a direct tax instead of issuing bonds after they have voted it in by the two-third majority to build and pay for the erection of school house'? Section 143, in Georgia School Code is not quite clear to me that this can be done legally, and yet, if we have to issue bonds, it just about cuts our hope of building our little one and two-teacher school houses out."
Section 143 of the School Code of Georgia makes provision for school houses in local tax districts by the issuance of bonds raised by vote of the people of such district.
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Section 144 provides how the pro'ceeds shall be used in the event bonds are issued and sold.
This section confers no authority whatever upon the Board of Education to levy and collect taxes in lieu of bonds. If bonds are voted, issued and sold the law directs the manner in which the money shall be used. There is nO' provision for the imposition of a direct tax upon the people for the building of school houses. In other words, an election for bonds for the building of school houses carries the right to levy and assess taxes, but the taxes are for paying interest on bonds, and retiring them, and not for furnishing money with which to construct school houses.
Section 143, 144, and 145 provide the method of ho'lding elections, selling the bonds, and raising money for paying interest and retiring the bonds.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STATE HIGHWAY DEPARTMENT MAINTENANCE OF OVERHEAD BRIDGE.
November 22, 1922. Mr. B. C. Milner,
Assistant State Highway Engineer, Atlanta, Georgia.
I have just received your letter of this date along with Mr. Morgan's in regard to the Maintenance of Overhead Bridge on Route Number 15, Rabun County, Georgia.
If there has been no contract entered into .between the County and the Power Company whereby the County agrees to pay for the maintenance of this overhead crossing, then, in that event, the Power Company would be required to maintain said crossing. Our Code requires railroads to maintain all crossings. The following is the law:
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"Section 2673. Railroad Crossings. All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build f?Uitable bridges and make proper excavations or embankments, according to the spirit of the road laws."
I would suggest that you write Mr. Morgan and have him to find out if there has b'een any kind of an agreement between the County and Power Company as stated above, and, if so kindly mail us a copy of same. If there has been none there is no doubt that the railroad company is required under the law to maintain these kind of crossings.
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.
EXPENSES OF ENFORCING ELLIS HEALTH LAW MUST BE BORNE BY COUNTIES, NOT BY STATE.
May 17, 1923.
Doctor T. F. Abercrombie, Secretary State Board of Health, State Capitol Annex. Dear Doctor :-The delay in replying to yours of the fifth,
instant, is regretted, but has been occasioned by pressure of details, and suits coming up in this office.
Answering your inquiry as to whether the State Board of Health may employ local counsel and spend funds from its appropriation for the purpose of enforcing the provisions of the Ellis Health Law with relation to County Boards of Health in the event it became necessary to apply for mand~mus to enforce same, I beg to submit the following:
While under section 1662, of the Code of Georgia, the State Board of Health is given supervision of all matters relating to the lives and health of the people of the State,
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etc., the question is controlled by Code section 1673. This section is part of Chapter 7, of the Code, and chapter 7 deals with the County Boards of Health, and of proceedings under their authority; section 1673 says:
"All costs and expenses necessary and proper for carrying out the provisions of this chapter shall be paid out of the County treasury." '
In section 1676, this principle is repeated in the following language:
"For 'effectually carrying out such rules and regulations, they may employ such officers, agents and employees, and incur such expenses as they may deem necessary, which salaries, compensation and expenses shall be paid out of the County Treasury, as are other county expenses."
Under this law it is manifest that the State Board of Health would not be authorized to expend its funds for the purpose of meeting the expenses which are, by the law above quoted, laid upon the County Boards of Health.
However, should a given county decline to provide the funds necessary to cover expenses incurred by the County Board of Health, then it would seem to be the duty of the State Board of Health to proceed to mandamus the County officials, and compel them to provide the funds.
Under the law directing the State Board of Health to enforce the provisions necessary to safeguard the health of the people of the State, it is my opinion, that you would be authorized to expend the amount from the funds of your appropriation, for the purpose of employing local counsel to prosecute mandamus proceedings to en:fiorce the provision of funds by the counties when they have failed to provide same.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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GENERAL TAX ACT REQUIRES EVERY PERSON ACTING AS A GENERAL INSURANCE AGENT TO PAY TAX AS SUCH.
August 7, 1922.
Hon. William A. Wright, Comptroller-General, State Capitol.
Dear Sir :-This will serve to acknowledge receipt of yours of the seventh instant, accompanying letter of Messrs. Haas and Howell:
This involves a construction of the General Tax Act of 1921, paragraph 62fi section (8). This section reads as follows:
"Upon each and every travelling or special or general agent, or manager, of any life, fire, accident, casualty, liability, fidelity or surety insurance company conducting the business of such companies in this State, $100.00, payable in the county of the residence of the agent, and the Tax Collector's receipt shall be his authority to go into any other county without the payment of an additional tax."
This law is so specific and so exact in its terms as to admit of no doubt regarding the legislative intent.-"Upon each and every travelling or special or general agent," etc.
The language of the 61st Paragraph, which refers to the tax on oil and gasoline sold from trucks is 'Upon each person, firm or corporation," etc.
The 59th Paragraph refers to "agencies and bureaus." The 54th Paragraph refers to "each person, firm or corporation compiling city directories, and selling same. Sections (c), (d), (e), and (f), of said 62nd Paragraph, by the verbiage employed, bear out the construction above indicated as to section (b) of this paragraph. In each classification the law apparently seeks to reach each and every agent. Had it not been so, the language employed S;hould have followed that used in other divisions of the Act: "each person, firm or corporation." There is a marked differentiation in the language employed.
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Messrs. Haas & Howell present with much 'force the argument, as to the inequity of requiring each member of a firm to pay this occupation tax. But, it is not for us now to pass upon the fairness, equity or wisclom of any particular statute. It is a question merely, what was the legislative purpose and intent, and what is the meaning of the language employed to express such intent?
In my opinion, therefore, the only construction to be placed upon section (b) of Paragraph 62 of the General Tax Act aforesaid, is to hold that it means exactly what it says: That the tax must be paid by "each and every traveling, or special or general agent," of such insurance companies as are designated.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
TAX RECEIVER ENTITLED TO COMMISSION ON SCHOOL TAX IMPOSED BY COUNTY AUTHORITIES ON RECOMMENDATION OF BOARD OF EDUCATION.
May 26, 1923.
Hon. William A. Wright, Comptroller-General, State Capitol.
My Dear Sir :-Replying to your request in reference to the question raised in the letter of Honorable J. A. Wallace, Tax Receiver, of Dawson County, in his letter to you, under date of May 23rd, I beg to submit the following:
Mr. Wallace states that a tax was imposed in his County upon the recommendation of the County Board of Educatio'n of Dawson County for the support of the schools of that County, and Mr. Wallace states that he has not been paid his compensation as Tax Receiver for the ingathering of that tax. My uniform construction of the law has been
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as follows: That where a County or a District votes 'upon itself a tax to support the schools, the County TaxReceiver is not entitled to compensation unless he makes out a digest of the property upon which the school taxes are assessed, but where the County Board of Education recommends to the County authorities the levy of a County wide tax for the support of schools, which tax is levied and collected as a Co'unty wide tax, then the Tax Receiver is entitled to receive the same compensation that the Tax Collector is paid for collecting such tax. The law is unequivocal in its statement that the Tax Receiver shall be paid the same compensation that the Tax Collector receives for collecting the County taxes.
Therefore, since the Tax Receiver is entitled to be paid out of the taxes collected of this County wide tax imposed by the County authorities, upon the recommendation of the Board of Education, the question arises: Who is to pay the Tax Receiver, since, as stated in his letter, the funds from this taxation have been delivered the County School authorities? The County should see that the Tax Receiver receives his pay. Our Supreme Court has held that every tax must bear the expense of its ingathering. If the school authorities have received this money, they have received more than they were entitled to, in the sum that was due the Tax Receiver. It seems it would be equitable for the school authorities to pay the Tax Receiver the money he is entitled to.
The County School Board has, in my opinion, the power to direct the County School Commissoiner to pay to the Tax Receiver the amount which should have been deducted before the net sum, raised by the tax, was paid over to the Board of Education, or to the County School Commissioner. as the case may be.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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APPLICATIONS FOR PENSIONS MUST BE FILED ON OR BEFORE FIRST DAY OF NOVEMBER.
January 29, 1923.
Hon. John W. Clark, Commissioner of Pensions, State Capitol.
Dear Colonel Clark :-Replying to yours of the 24th, instant, in reference to the effect of delay in the furnishing proof of service in connection with the application of Mr. J ..E. Lanier, of Cuthbert, Georgia.
Code section 1501 says:
"All applications for pensions to be considered for the roll of the following year shall be filed in the office of the Commissioner of. Pensions on or before the first of November of each year."
My construction of the practical effect of this provision Qf the law is that, if an applicant files his application prior to November of a given year, it places the application in a situation to be considered for the roll for the coming year.
Should certain time be required in which to perfect proof, it would seem in equity and g<Yod conscience, that the veteran, if shown to merit his pension, should not be deprived of his pension for a year by reason of inability to assemble proof of service by a certain date.
This is a matter of practical construction by your Department, and the law, if it should yield to equity anywhere, should bend away from technicality in the case of our Confederate heroes.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
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CONFEDERATE SOLDIERS. LIABILITY OF STATE FOR EXPENSES INCIDENT TO BURIAL OF.
Hon. John W. Clark, Commissioner of Pensions, State Capitol.
My Dear Sir:-Your letter of the sixth, instant, has been held for some time in order that time could be taken to make a necessary investigation of the questions raised in your letter. The central point involved, as I understand it, is whether burial expenses of a deceased Confederate sold.ier may be allowed after the first of May, or any year in which such soldier was entitled to receive a pension.
This seems to be purely a question of administration in your office. ~t may be that the official construction of your Department has established some precedent in the matter. "The law holds that official construction followed in a given department of the State government is entitled to great weight in determining the legality of any line of action.
1 can find no-!_aw among our statutes,holding clearly that
authorizes the payment of burial expenses after the first
oi May or of a year succeeding that in which the right of
the pensioner had accrued to a given veteran. Manifestly a sympathetic construction of the law would be that such burial expenses might be allowed, and yet I could not say that, in the absence of some express legislative provision, or of some established official construction in your Department, the same should be allowed as a matter of law. It is true that on the first day of May a third of a year has 'lapsed,and at least some portion of the pension should be 'quitably considered to be due to the pensioner should he die during that part of the year. And while the entire pension would be held to have accrued for that year by the time the date arrives for making up the lists in the absence of some express provision of law, it would not be safe to hold that the pension had accrued on any date earlier in the year
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for part of that year. And, unless it could be held that the pension had rightly accrued to the pensioner, there would be no authority for the payment of his burial expenses.
I have taken the time to investigate the provisions contained in the laws of some of the other Southern States: Alabama has a fortunate provision for the payment of pensions quarterly; South Carolina provides that the representative of the deceased pensioner is entitled to draw the pension to which deceased pensioner would have been entitled for the year in which he dies. Our State has entirely neglected to make such a provision as that contained in the South Carolina statute.
The only counsel I could give is that; if the official ,onstruction, above referred to, has not been followed in your office heretofore, that the attention of the legislature at its incoming session should be called to the situ~tion, and, no doubt, the General Assembly would amend the law so as to cover the situation which you present.
Respectfully submitted, GEO. M. NAPIER, Attqrney-General.
LOBBYISTS. REGISTRATION OF.
July 5, 1922.
Hon. S. C. McLendon,
Secretary of State, State Capitol.
Dear Sir :-This acknowledges receipt of yours of even date, in which you say:
"Section 1, page 152, of the Acts of 1911, contains the followings entence: 'This registration is to be valid only for the term of session of the legislature in which the legislation referred to is pending."
"Please give me your official opinion as to whether a
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person cwho registered in 1921 for appearance before the legislature should again register in 1922, where the legislation favored or opposed was brought over from 1921 session as unfinished business, or whether the 1921 registration fulfills the requirements of the law."
While not absolutely clear, the language seems to convey this legislative intent: To have the public apprised of the name of every agent or attorney who may appear to aid or oppose, directly or indirectly, the enactment of any bill resolution or measure of any kind before either house of the General Assembly.
The length of time such agent or attorney may be employed to faster or oppose any bill does not seem to be considered of importance. Of course, it is to be presumed that such agent or attorney once employed would "carry on" and follow up until the bill would be disposed of.
It is my opinion that a person or firm registering as being employe in behalf of some person, firm or corporation, to favor or to oppose a certain piece of legislation would be allowed to continue to "appear" under such registration until said contemplated legislation shall have been disposed of.
Should the same person be employed by the same or other interests in connection with other and additional legislation, pending or contemplated, such person would, of course, be required to register. So that every piece of pending legislation having special proponents or opponents specially employed in connection therewith would be an open book to the public.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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AUTOMOBILE LICEN1SE TAGS STOLEN. RE-ISSUE OF.
July 22, 1922. Hon. S. G. McLendon,
Secretary of State, State Capitol.
Dear Colonel McLendon:-Yours to hand enclosing letter from Mr. Joseph A. McCord, requesting that we make some suggestions concerning the situation.
It seems that Mr. McCord is entitled to the license which he paid for, and now in the po'ssession of Mrs. Maddox. Mrs. Maddox has had the misfortune to have the tag on her car stolen, and there is no provision of law covering that situation. So far as issuing a duplicate tag, or anything of that kind, she would have to purchase a new tag; but, on the first of August, I believe she can get a new tag for the remainder of the year, at half price on the first of August.
Of course, the detectives, or officers who recover the stolen car can very readily return the car to Mr. McCord
as they have advice of the exchange of the tags b'w the
thief. With best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
STOCKHOLDERS ARE LIABLE FOR UNSUBSCRIBED STOCK.
October 18, 1922. Hon. S. G. McLendon,
Secretary of State, State Capitol.
Dear Colonel McLendon :-This acknowledges receipt of yours of even date, wherein you say:
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"I am in receipt of the following telegram: 'Statesboro, Georgia. Hon. S. G. McLendon, Secretary of State, Atlanta, Georgia. State whether or not stockholders are liable for unsubscribed stock in a co-operative corporation as contemplated under the act of 1920? See Georgia Laws 1920, page 125.' Please advise me on this subjejct."
I have examined the Act referred to, and, in my opinion, persons associated together, under the provisions of this Act are liable for unpaid stock in a co-operative corporation, as contemplated under the Act of 1920, referred to. The law makes no exception whereby persons who subscribe, and do not pay, shall be relieved of their liability in enterprises of this character.
With best regards, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
BUILDING AND LOAN ASSOCIATIONS COME UNDER THE SUPERVISION OF THE GEORGIA SECURITIES COMMIS SION.
May 2, 1923.
Hon. S. G. McLendon, Chairman Georgia Securities Commission, State Capitol. Dear Sir :-Some days since, the Securities Commission
directed that I pass upon the question, whether domestic building and loan associations are now subject to supervision by the Commission.
By the Act of 1922 (See Georgia Laws 1920, page 253), it was provided that Securities in Class "A" shall comprise (among others) "building and loan asso'ciations of this state." This seems clearly to include local building and loan enterprises promoted and maintained in Georgia.
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Elsewhere in said Act, it is provided that Securities in class "A" are not subject to the supervision of the Commission.
The Act of 1922, amending the Act of 1920 above referred to, in defining the securities in class "A," does not include building and loan associations. This has the effect of including building and loan association stock among the securiites now subject to supervision of the Securities Commission.
However, inasmuch as the Commission has not exercised control of building and loan associations, and in view of thefact that the next session of the General Assembly is now but a few weeks off, it may be deemed practicable and advantageous to allow the Legislature to consider the matter of exempting building and loan associations from the supervision of the Commission. Yet clearly it seems to have been the intent of the Legislature to bring them under the supervision and control of the Commission.
In this connection, I have had for consideration a letter of Hon. Barry Wright, of Rome, Georgia, who contends that a lo'cal and purely mutual building and loan association ought not to be subject to the expense of supervision by the Securities Commission, such enterprises being "one of the purely mutual concerns which is exempt from the Income Tax under the laws of Congress."
Building and Loan Associations are meeting with success in some O'f the States, notably in South Carolina. It might be that popular confidence in such associations in this State might be enhanced by reason of consistent supervision by the Securities Commission.
As the law now stands, it appears that the Commission has the authority to bring all building and loan associations operating in this State under its supervision.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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.
ALL DEPARTMENTS RECEIVING APPROPRIATIONS FROM THE STATE REQUIRED TO MAKE REPORT TO BUDGET COMMISSION.
April 25, 1923.
Hon. S. G. McLendon, Secretary of State, State Capitol.
My Dear Colonel McLendon :-Responding to your request for interpretation of the Act approved July 26, 1922, creating an Investigation and Budget Commission for this State, I beg to submit the following:
After consideration of this measure, and by obtaining the view of one of the authors of the bill, my conclusions are in part as follows: The Legislature deemed it .essential that succeeding legislatures ought to know at the beginning of each session how the money previo'usly appropriated has been spent, and what it will probably take during the next bi-ennial period to properly finance the State Departments and Institutions dependant upon the State for financial support or assistance.
The caption is very comprehensive:
"To provide for the making and filing of reports by all State Departments, bureaus, institutions, commissions, and officers receiving appropriations from the State; to define the duties and powers of said commission; to provide a method of ascertaining the financial condition of the State and the appropriations necessary for the various departments, institutions and other agencies of the State."
Note that "all State departments, bureaus, institutions, commissions and officers receiving appropriations from the State" are included. . The same definitive language runs through all the Sections of the Act where reference is made. to the making of reports.
However, I see not reason for the making pf any report
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by yourself for the Motor Vehicle Department, SecuritieS' Commission, or as Corporation Commissioner. The Department of Secretary of State would show the salaries and expenses covered in the appropriations of the State.
A memorandum from yourself stating the facts regarding the commissions which you preside over, but which derive no support from the State and which spend no money from the State Treasury, would be of assistance to the Budget Commission.
The general purpose of the law seems to be that all expenses of the State government and institutions, as well as any desired increases or diminutions, may be entirely shown by and ascertainable from the reports from "all State departments, bureaus, institutions, commisisons, and officers. receiving appropriations from the State."
With assurance of high regard. Sincerely yours, GEO. M. NAPIER, Attorney-General.
AUTOMOBILE LICENSE TAGS FOR CARS FROM OTHER STATES.
February 26, 1923.
Hon. S. G. McLendon, Secretary of State, State Capitol.
My Dear Sir :-Replying to yours of the 21st, instant, f beg to say that :
I have gone to the State Library, and examined the Flori:. da code of 1920, and find therein section 1020, which reads as follows:
"The provisions of the foregoing section relative to registration and display of registration numbers shall not apply.-
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to a motor vehicle owned by a non-resident of this State, other than a foreign corporation doing business in this State: Provided, That the owner thereof shall have complied with the provisions of the law of the foreign country, State, Territory of federal district of his residence relative to motor vehicles and the operation thereof, and shall conspicuously display his registration number as required thereby; and Provided, That the provisions of this section shall be operative as to a motor vehicle owned by a nonresident of this State only to the extent that under the laws' of the foreign country, State, territory or federal district of his residence like exemptions and privileges are granted to motor vehicles duly registered under the laws of and owned by residents of this State."
I hope the foregoing will answer fully the questions in your letter.
With high regard and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
VITAL iSTATISTICS. ANATOMICAL BOARD AUTHORIZED TO DISPOSE OF BODIES BURIED AT PUBLIC EXPENSE.
November 30, 1922.
Hon. W. A. Davis, Director, Bureau of Vital Statistics, State Capitol Annex.
Dear Doctor Davis :-Replying to yours of the 25th, instant, I beg to say that:
The cases you mentioned, where bodies of still-born children, and also the bodies of dead children had been found pitched. out to be devoured by hogs, are manifest violations of the law. Still, it seems to me that the Anatomical Board, under the law, controls the disposition of bodies of dead human beings only when such bodies are' to be buried at public expense. Then, they can dispose of such bodies
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'

among the various institutions for the purposes of dissection.
The law may be lame in reaching certain particular cases. No doubt, your rulings in the past, have been well considered, and, I doubt not, entirely correct; but, in the case under consideration, my conclusion was simply that in that case, the parents, for the purpose of preserving the body of the physical freak, could control that by allowing the body preserved in alcohol, or give such other decent disposition of the body of the child as would not be unlawful.
With best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
'CALCIUM ARSENATE. AUTHORITY OF BOARD OF ENTOMOLGY TO EMPLOY CHEMIST TO MAKE ANALYSIS OF.
November 8, 1922.
Hon. Ira W, Williams, State Capitol.
Dear Sir :-Replying to your request for opinion as to your authority in having an analysis made prior to and preparatory to making a contract for this commodity for the year 1922, the following record is furnished me:
"Motion by T. G. Hudson, duly seconded: That Ira W. Williams call on the Attorney-General for his opinion in regard to the payment of $50.00 by Mr. Williams, for analysis of calcium arsenate preparatory to making a contract for the same for the year 1922, and that in the event the Attorney-General thought that the said payment. by the Board would be illegal, that the Board and members of the staff make contribution sufficient to pay same."
You also state the Board of Entomology authorized Honorable J. J. Brown, Commissioner of Agriculture, and your-
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self to trade for calcium arsenate for the year 1922, and that Commissioner Brown turned this matter over to Ira W. Williams, with power to act in the premises. And also that Mr. Williams had samples taken of the calcium arsenate offered to the State, and that the analysis was made by Doctor Eberhardt, who charged the sum above named as a fee, and expense for this professional and technical work.
Upon a careful examination of the law in reference to the State Board of Entomology, and its powers and duties, it is found that the intendment of tha statute creating this Board and defining its duties, has a primary purpose of controlling all such pests as are destructive of plants, trees, shrubs, etc.
The ravages of the boll weevil having made its destruction of cotton grown in this State one of the great calamities of our time, and clearly all acts undertaken, and all precautions in furtherance of such acts for the benefit of farmers and planters of this State come within the purview of the law, and within the range of the discretion and judgment of the Bo'ard of Entomology.
Therefore, if the Board delegated the authority to make the trade above mentioned, and if Commissioner Brown instructed Mr. Williams to make the trade, then it seems that the powers of the Board, and the discretion and judgment of the Board were delegated to Mr. Williams to use his best judgment in the premises respecting the means and the methods concerned in the making of a fair and advantageous trade for a supply of calcium arsenate for the State; and if the analysis of the calcium arsenate offered to the State to supply the needs of the planters for the year was deemed by Mr. Williams as a proper and precautionary step before concluding this important trade, it would be within the power and judgment of the entire Board.
Therefore, it is my opinion that; it is not contrary to law
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for the Board to authorize the payment of the fee of Doctor Eberhardt for making the analysis.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
SALARY OF ATTORNEY. AUTHORITY OF BOARD OF EDUCATION TO EMPLOY AND PAY, FROM SCHOOL FUNDS OF A COUNTY.
November 13, 1922.
Hon. M. M. Parks, Superintendent of Schools, State of Georgia, State Capitol.
Dear Sir :-I have before me a letter written by Mr. J. T. Goree, Superintendent of Schools, Seminole County, Georgia, to you, wherein he asks the question of whether or not a treasurer of a school district has authority to draw on the school fund to pay an attorney.
If the treasurer had authority and direction fro!n the governing authorities of the school district to employ an . attorney to fight the consolidation of these school districts, then, in that event there would not be a mis-use of funds. If he did not have authority and direction there would be a mis-use of school funds.
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.

VITAL STATISTICS. CRIMINAL RESPONSIBILITY OF REGISTRARS FOR FAILURE TO FURNISH.
January 31, 1923. Hon. W. A. Davis, M. D.,
Director Bureau Vital Statistics, State Capitol.
Dear Doctor Davis :-Referring to the attached opinion rendered by the Attorney-General..
You will observe, from an examination of the authority quoted on the second page of this opinion that any local registrar, deputy registrar, or sub-registrar who fails, neglects or refuses to make reports, and performs such other duties as devolves upon him, under this law, shall be deemed guilty of a misdemeanor.
If the party in question continues to obstruct your work by neglecting, failing or refusing to discharge his duty by reporting births and death to you as required by the law, you should institute a prosecution against him at once. He should appeal to the legislature for compensation, if he thinks he is entitled to it, but, in the meantime, if he neglects to comply with the requirements of the law, you should prosecute.
Very respectfully, T. R. GRESS, Secretary.

COUNTY DEMONSTRATION AGENTS. MANNER IN WHICH TO RAISE AND PAY SALARIES OF.

November 30, 1922.

Hon. M. M. Parks,

State Commissioner of Education,

State Capitol.

. ..

Dear Sir :-Replying to your inquiry whether a County

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Board. of Education may legally levy a tax of seven mills, for the purpose of paying the salaries of County Demonstration Agents and teachers of Home Economics; and to which you attach a letter on that subject from Judge E. H. Callaway to yourself.
The Supreme Court has held that the Legislature may confer authority upon County Boards of Education to employ and pay the salaries of Demonstration Agents and teachers of Economics, but in a recent decision, has expressly held that a tax levied to meet the salaries and expenses of such agents and teachers, together with other educational purposes cannot exceed five (5) mills.
This decision, therefore, settles that question. The limit to the taxation for educational purposes is Constitutional, and absolutely restricts it to five mills; and, a CO'unty Board of Education, no matter what the exigencies, may not exceed that limit, under our present laws.
It is only an incidental observation, but I am constrained to say that the tremendous and very urgent needs of children in our rural cO'mmunities for rudimentary education seem, under the law, to demand a well considered use of the funds raised for education, so that these wards of the Staie may not have the door of opportunity closed in their faces.
With assurances of high esteem and best wishes. Sincerely yours, GEO. M. NAPIER, Attorney-General.
VITAL STATISTICS NOT REQUIRED TO BE MADE PUBLIC.
July 14, 1922.
Hon. W. A. Davis, M. D., Director, State Capitol.
Dear Doctor Davis:-Yours of yesterday duly received.
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In view of the prudential reasons why you should not submit the records of birth in order that the names of the mothers might be kept, you could make a direct ruling that such records are not open to public inspection, or you could qualify that by providing that they should not be inspected with the view of taking any information therefrom.
The point you make in reference to disclosure of inf<Yrmation that would be humiliating to the mothers of illegitimate children, and detrimental to the children shows the force and value of the situation which leaves the matter in the discretion of the Director of your Bureau.
If the opening of your records to inspection in any line, such as deaths, which record might be available to enterprising monumental agencies, then you would have the right to decline to allow any public inspection of your records, and if one man should be entitled to make an inspection of your records, then everybody should be allowed the same right, and obviously, of the coming of numerous individuals to inspect the records would be a tax upon your office, and would interfere with the regular work of yourself and assistants,. then it would be right and legal for you to decline to allow the inspection of your records on the part of any one.
The matter is in your control. You could simply put up a sign in your office that none of the records in this Department are open to public inspection. You could then say that the law authorizes you to enforce that regulation, and you would probably have no further trouble.
Very truly yours, GEO. M. NAPIER, Attorney-GeneraL
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VITAL STATISTICS-DISPOSITION OF ANATOMICAL SPECIMENS.
November 24, 1922.
Hon. W. A. Davis, M. D., Director of Bureau of Vital Statistics, State Capitol Annex.
Dear Doctor Davis :-This in reply to yours of the 23d instant, just received, in which you say:
"A birth and death certificate have been filed with one of the local registrars of this State for a child born with two heads. The physician desired to retain it as an anatomical specimen, and not bury it, and requested of the local registrar at that time permission to do so. The matter was referred to me, and I advised the local registrar that this Bureau had no authority in such matters, but that the Anatomical Board did have and could issue a permit so that the body might be held as an anatomical specimen.
"Will you please advise me what methods, in such cases, should be pursued, so as to make the retention of the body as an anatomical specimen legal?"
This matter seems to be controlled by section 1755, et seq., of the Code or" the State of Georgia. However, section 1756 provides for the delivery of any dead human body, not dying from any contagious or infectious disease which is "required to be buried at the public expense" to be turned over to a Board for distribution to and among such institutions as entitled thereto.
The body of the child born with two heads would not come within the jurisdiction of the Anatomical Board, unless such body would be required to be buried at public expense. In my opinion, if th parents of the child should desire same preserved in alcohol, or to be buried, or give any other direction for the disposal of the body, it would be wrthin the province of such parents to control the disposal of the body of such child.
The Board constituted by law for the disposal and distribution of such dead bodies as are required to be delivered
198

to them would not have control or jurisdiction over the dead body of such an infant if its parents are able to bury it, or :prefer to have other disposal made of the body of such child.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
VITAL STATISTICS-INSPECTION OF RECORDS OF.
Ron. W. A. Davis, M. D., Director Bureau of Vital Statistics, Capitol Annex. Dear Sir:-Yours of the eleventh instant just to hand.
You stated:
"I wish some advice as to the handling of death records with reference to inspection and copying of certain items by the public.
"Please advise me if I can legally permit an individual to copy from the birth or death records items to be used by him, and, if so, to what extent these records can be copied."
Such records as you name are public records in the fullest sense, and not secret documents. And yet, the purpose of the legislature was clearly far from making a provision to serve the business world.
Your records are somewhat analagous to those kept in the office of the Superior Court Clerks of /this State, although the records kept in your department have by no means such an intimate connection with the general business as those kept by the courts.
It has been held, in respect to' the rights of the public to inspect records of deeds and mortgages that one person may not interfere with the rights of others, nor with the time of the clery unduly, and that the clerk is not required to permit persons to make abstracts of such deeds and mortgages for the purpose of assembling such information in a book, etc.
199

You would have the right, in your discretion, to allow individuals to look over the records in your department, and to make notations from same; but you would have the right to decline the use of such record for business purposes, if other persons who desired to inspect the records sho'uld be delayed, or if the time of employees in your office would thereby be interfered with or their attention diverted from other duties.
In brief, your discretion and control of the entire matter above discussed is not affected by any special legal provision.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
PENSION ROLL-APPLICATION OF MRS. C. M. ELLISON TO HAVE NAME OF HER HUSBAND PLACED ON.
Hon. John W. Clark, Commissioner of Pensions, State Capitol.
My Dear Sir :-I have the honor to acknowledge yours of even date herewith, which reads as follows:
"Mrs. C. M. Ellison, Atlanta, Georgia, made application to be placed on the pension roll in her own right, following the death of her husband, Mr. C. M. Ellison, of Habersham county, in 1921. This application was made within the time fixed by law, or before November 1, 1921. The person who investigated the records in this case overlooked the name of her husband, who had been on the pension roll for a number of years, and basing his decision on this failure to find the record of pensioner's name, the application of his widow was disapproved by my honored predecessor, with the statement 'No record of service.' . "Mrs. Ellison has called my attention to this injustice by madvertance, and has made appeal to have her name placed on the roll as of original date set out in her application of 1921. In view of the fact that this application was made out in regular form, and within the time prescribed by law, it
200

has occurred to me that equity demands that she be not victimized by official oversight for which she was in no way responsible, and that her request to have her name placed on the 1922 roll should be granted. I respectfully request your decision as to the justice of her contention, and will thank you for an early expression."
It appears that equity should govern in this case, as you well suggest.
Even in certain cases, things in compliance with legal requirements may be done nunc pro tunc. This meritorious application having been disapproved by oversight purely, it may be approved upon the record "now for then."
In my opinion the legal and right thing to be done is that Mrs. Ellison's application be approved, and her name placed upon the pension roll.
With great respect, Sincerely yours, GEO. M. NAPIER, Attorney-General.
BOARD OF EDUCATION OF A COUNTY WITHOUT AUTHORITY TO LEVY A TAX OF TWELVE MILI.JS ON THE DOLLAR FOR SUPPORT OF SCHOOLS.
Ron. M. M. Parks, State Superintendent of Schools, State Capitol.
Dear Doctor Parks :-Replying to your request for opinion as to the question raised in the letter of Honorable F. L. Cochran, County Superintendent of Schools of Fannin county, tO'-wit: "Whether the County Board of Education can lawfully levy a tax of twelve mills on the property of residents in a given school district to provide funds to pay for labor in building a school house for such districts?"
This matter has had my very careful attention.
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The authority for the action in this instance is cited by Mr. Cochran as the latter part of Section 84, page 31, Georgia School Code, as follows:
"In respect to the buildingof the school houses, the Board of Education may provide for the same, either by labor on the part of the citizens of the sub-district, or by a tax on their property."
In tracing the origin of this law it is found that it was contained in an Act of 1887 (See Georgia Laws 1887, section 21, page 73), which is as follows:
"The County Board of Education shall have power to purchase, lease or rent school sites; to build, repair or rent school houses; to purchase maps, globes and school furniture and make use of all other arrangements of this kind necessary to the efficient operation of the schools under tneir care, and the said Boards shall also be, and are hereby
invested with the title, care, custody, * * * *."
On page 74 of this Act, the following language is to be found:
"* * * * * * and in respect to the building of the
school houses mentioned in this section, the said Board of Education may provide for the same, either by labor on the part of citizens of the sub-districts to be served, or by a tax on their property, as may be hereafter provided."
No further reference to the method of taxation upon citizens of school districts is made in this Act.
In 1921, however, section 143, of the Georgia School Code was amended as follows (See Georgia Laws 1921, page 224):
"When one-fourth of the registered qualified voters of a school district, consolidated district, or county, in which a local tax is now. or may hereafter be levied for school purposes, or of a district in a county now levying a local tax, shall be filed with the Board of Trustees or Board of Edu cation or such a school district, consolidated district, or county, a petition asking for an election for the purpose of determining whether or not bonds shall be issued for the purpose of building and equipping a school house or houses for said school district, consolidated district, or county, the required number of petitioners to be determined by said Board of Trustees, or Board of Education, it shall be the duty of said Board of Trustees, or Board of Education, to fix the amount, denomination, rate of interest, and dates
202

when due, and call such election in the terms of the law now provides for a county issue of bonds, except as herein otherwise provided."
This appears to be the only legal method of taxing the property of residents of a school district.
Any other method would contravene the Constitutional provision contained in Code section 6578, which reads as follows:
"Authority may be granted to counties, militia districts, school districts, and to municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation; but no such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county, militia district, school district. or municipal corporation and approved by two-thirds majority of persons voting at such elections, and the General Assembly may prescribe who shall vote on such questions."
If a county Board of Education could legally assess and levy a tax of ten mills on the property of the citizens of a school district, it could just as legally assess and levy a tax of fifty mills.
The language used in the Act of 1887, above quoted: "The Board of Education may provide for the same, either by labor on the part of citizens of the sub-districts to be served, or by a tax on their property, as may be hereafter provided," has been codified into the school law, omitting the important dause "as may hereafter be provided."
The great American principle "No taxation without representation" is still of force.
"Laws have been enacted to enable local taxation to maintain public schools by local taxation: 'But no such laws shall take effect until the same shall have been submitted to the qualified voters in each coluty, school district,' etc."
It is true that in 1920, a Constitutional Amendment was ratified by the people authorizing county authorities, upon the recommendation of the County Board of Education, to levy a tax upon the property of the county outside of th~
203

independent local systems. But such tax cannot exceed five mills.
All other school taxes, including that for building and equipping school houses can be imposed only upon the votP of the people to be effected thereby.
My conclusion, therefore, is that the Board of Education <Yf Fanning County cannot lawfully impose the tax of twelve mills upon the property of one of its school districts to provide funds to pay for labor in building a school house for such district.
To legalize such a tax, it must first be submitted to the qualified voters of such district.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
BOARD OF EDUCATION OF TAYLOR COUNTY-TERMS OF OFFICE OF.
Hon. M. M. Parks, M.D., State Supt. of Education, State Capitol. Dear Dr. Parks :-This in response to your request for
opinion on matters presented by Hon. Walter E. Steed of Butler, Georgia.
His letter states :
"Some confusion having arisen as to the rightful membership of the Taylor County Board of Education, I was requested at the regular October-Fall term of our Superior Court, by Judge Geo. F. Munro, to write and explain to you this situatioi\, in order that there might be no question as to the rightful personnel of this Board.
"It appears at the 1921 term of the court, the Grand Jury elected the following members, who were then serving, and who are now serving as members of the Board: Hon. R. A. Hinton of Reynolds, A. H. Sealey ofHoward, H. J. Peagler of Butler and J. G. Dugger of Panhandle. Then at the regular Spring-April term, this year, of the court the Grand
204

Jury elected Mr. F. R. Purvis, who was then serving and is now serving on the Board. The Grand Jury intended, I am informed, to elect him and the above for the full term. The clerk of the Superior Court, who is a new man in office, without any intention to overlook his duties in the matter, failed to send up to your office a certified statement of the above stated elections.
"At the recent October term of the court, the Grand Jury again made another election, not bein&" informed, I am told, of the elections of the above named gentlemen to the Board membership, or, if informed, did not recognize the binding effect of their predecessors, and proceeded to elect the fol.lowing named citizens: W. F. Smith, Potterville; W. E. Elliston, Rupert; F. A. Ricks, Reynolds; J. J. Windham, Butler, and J. A. Heath of Daviston, Georgia."
It appears that Messrs. Hinton, Sealey, Peagler and Dugger, who were chosen by the Grand Jury at the Octobter term, 1921, were regularly elected. Likewise, that Mr. Purvis was chosen to succeed himself at the April il,erm, 1921, and that he has continued to serve.
The law generally provides that officers and officials shall serve until their successors in office are selected and qualified.
The question arises, whether those persons selected by the Grand Jury of Taylor County at the October term, 1921, have forfeited the right to the office, by reason of the delay in obtaining their commissions.
Section 264 of the Code of Georgia provides that officers in this State are vacated (among numerous grounds):
6. "By failing to apply for and obtain commissions or certificates, or by failing to qualify and give bond or both, within the time prescribed by the laws and Constitution."
However, our courts of last resort have held that the mere fact of failure to obtain commission does not work forfeiture upon the part of the officer-elect, but fault on his part must appear.
In the case of Ross vs. Williams, 44th Georgia, page 504, it was held by Justice McCoy:
"An experience of many years, as a county officer, informs me that the practice generally has been to notify officers that their commissions have arrived, and it has not
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been usual to consider the office vacant until this notice has been given; and this upon the idea that the officer has not failed until he has notice that the Ordinary is ready, prepared by the presence in his office of the commission, t() take the bond and administer the oath. See the case of Basset vs. the Governor, 11th Georgia Reports, 207. We think, for that reason, that the statement in the answer that the petitioner has not taken the oath and given the bond. within the time prescribed by law is not sufficient, that it ought to have further set forth that this was by his default...
The clerk of the Superior Court certifies that, being a new man, he had simply overlooked the requirement that he was to certify the choice of these officials by the Grand Jury.
It would appear, therefore, that it was not their fault that they did not receive their commissions. The same would apply to those chosen by the Grand Jury at the October term, 1922.
Therefore, it would appear that those first selected by the Grand Jury would be entitled, upon other requirements of the law being complied with, to receive their commissions as members of the County Board of Education.
If their names had been certified by the clerk, they would have been serving, and it does not appear that the law would work a forfeiture of the office, when they themselves d(} not appear to be at fault.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
VITAL STATISTICS-LOCAL REGISTRAR 1018th DISTRICT' UNION COUNTY.
July 5, 1922. Hon. W. A. Davis, M.D.,
Director, State Capitol. Dear Doctor Davis :-This is to acknowledge receipt of yours of the third instant, in which you ask:
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"I have this proposition before the Bureau to be settled, and am asking your opinion:
"In District 1018, in Union County, the County Ordinary of that county states that Mr. J. W. Horne was elected Justice of the Peace about ten years ago, and has held on, there being no election of a Justice in that district sinc,e that time. Mr. W. A. Payne, the former ex-officio Justice, was succeeded by Mr. James Arrant, but instead of turning his
blanks and records over to Mr. Arrant, he turned them over to Mr. Horne, the Justice of the Peace.
"Please advise me who in that district, under the circumstances, should act as local registrar of Vital Statistics."

The law provides that Justices of the Peace and Notaries

Public, ex-officio Justices of the Peace, shall be local regis-

trars.



The Justice of the Peace in the district you name can tech-

nically hold on until the fact of a vacancy in it is judicially

determined, but it is not in accordance with the law to fail

to have an election at the expiration of the term of the

office.

While a de facto officer, he is not an officer de jure. He

is taking advantage of his own wrong in failing to have an

elect1on, in which he could stand for re-election.

Under the circumstances, the preference under the law is

toward an officer regularly elected or appointed, rather than

to one who is irregularly holding over in an office. There-

fore, the legal preference in the instant case is in favor of

Mr. James Arrant, if he regularly succeeded by proper ap-

pointment, as the Notary Public and ex-officio Justice of

the Peace, in the place of Mr. W. A. Payne.

Respectfully submitted.

GEO. M. NAPIER,

Attorney-General.

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SCHOOL TAX LEVY FOR ROWENA SCHOOL DISTRICT-LEGALITY OF.
Hon. M. M. Parks, LL.D., State Superintendent of Schools, State Capitol.
Dear Sir :-In reply to your inquiry, accompanied by letter of Hon. F. B. Melton, County School Superintendent of Early county, to whose letter there was attached the following letter !from Mr. T. F. Smith, land and tax agent of the Central of Georgia Railway Company:
"Referring to tax alleged to be due to Rowena School District of Early County, Georgia. I note the election for this district was held in 1922 for school purposes. We are not in position, however, to issue voucher for the reasoln that this district was created after the ratification of the Constitutional amendment, and our attorneys advise that no district levy can be increased, and 11,0: levy made after the passage of that amendment, for the reason that the amendment provides no machinery for the election which it requires. If there is any doubt in your mind as to the co'rrectness of this, I would suggest your conferring with counsel of Early county, and I am sure he will advise you accordingly."
By the Acts of 1919, page 66, a Constitutional amendment was submitted to popular vote, and later adopted, which provided that both a tax to be levied upon the recommendation of the County Board of Education, and a tax not to exceed five mills could be voted by a school district on a two-thirds vote of those voting.
There s<Zems to have been no repeal of the law allowing the General Assembly to' prescribe the manner of elections to be held to determine whether school districts shall float bonds.
By the Acts of 1921, page 224, complete provision was made as to the manner of holding such elections. This is in harmony with Code sections 1531 and 1535.
The Constitution of 1~77, granted to counties and to municipal corporations, upon certain conditions, the right to
208

maintain public schools in their respective limits, by local taxation.
In 1903, the constitutional provision was so amended as to include militia districts and schO'ol districts.
A general Act was passed in 1905, and was amended in 1906.
The Supreme Court, in,
Edalgo vs. Southern Railway, 129th Ga., said:
"The defects in the original act, so far as it related to the school districts, were cured by the amending act of 1906."
Having the same Acts under review, our Supreme Court held in
Henalee vs. McLarty, 131, p. 244:
"Such an attack upon the Acts in question is without merit, in view of the Constitutional amendment adopted in 1903, authorizing local taxation for public schools."
See also 131 Ga., 644. In the case of
Georgia R. R. vs. Hutchinson, Tax Collector, the Supreme Court held in 125th Georgia, 762:
"The county authorities of anv county adopting the provisions of this act may levy the tax authorized thereby upoill the property of railroad companies, the assessment thereon being based on the returns made to the comptroller-general. The county authorities may obtain copy of such returns from the comptroller-general on demand, to be used in the assessment and levy of the tax."
These questions may come up when proceedings to validate the bonds are considered. The matter cannot be tested out until the election is held and the bonds carried.
If the law is defective, the sooner it is found out the better.
If the law should be held to be unconstitutional in the face of the many attacks which the principle has weathered in the courts, proper amendments should be adopted, or the
209


door of opportunity would be shut in the faces of many of the children of Georgia.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
AGE LIMIT FOR COMPULSORY ATTENDANCE OF PUBLIC SCHOOLS.
March 2, 1923. Hon. M. M. Parks,
State Superintendent of Schools, State Capitol.
Dear Doctor Parks :-In compliance with your request that I give opinion on the question raised by Prof. Willis A. Sutton, Superintendent of Schools of Atlanta, to-wit:
"What construction is to be placed upon the law fixing the age limit in the statute making it compulsory for parents
and guardians to send children to school?"
The statute is in these words:
"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 city or town in which the child re-
sides, * * * * * * *."
The law generally recognizes that majority is reached on the day before the twenty-first (21st) birthday. A young man is certainly not twenty-one until the close of the last day of his twentieth year.
A child is due to be started to school after the child's seventh year has ended. The Supreme Court of Michigan, in the construction of the force and effect of language similar to that under review, held:
210


"The words of the statute before us are 'any child or children between and including the ages of seven and fifteen years.' It is urged that to give any force to the word 'including'. the section must be construed to include children during the entire fifteenth year and until they become sixteen years old. We think that to do so would be a doubtful construction and the court should hesitate to make an act a crime by such means. The statute is not ambiguous in designating the age limit between the ages of seven and fifteen years. The word 'including' has no force to extend that limit yebond tpe time specifically designated. A child over fifteen years of age is not between the ages of seven and fifteen years, and, therefore, not within the provisions of the Act.''
In view of the reasons above set forth, it is m;y opmwn that compulsory education for children in this State does not include the fourteenth year; but is limited to the period of time beginning with the child's eighth year and ending with the completion of the thirteenth, making a period of six years.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
PENSIONS-ELIGIBILITY OF PERSONS OWNING MORE THAN $1,500 FOR.
Hon. John W. Clark, Pension Commissioner, State Capitol.
Dear Colonel Clark :-My attention has been called to the circular letter which you have recently sent out to the Ordinaries of the State wherein you state that pensions will not be paid this year to Confederate soldiers who possess property of the value of $1,500 or more, nor to widows of Confederates who were married since 1870.
Since reference is made in this letter to the opinion of the
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Attorney-General, the conclusion might arise that these subjects were considered in the opinion, but not sO'.

In your letter to the Ordinaries on the subject of these

opinions, you have this paragraph:



"On account of the fact that the appropriation sheet for 1923, made out by my honored predecessor in office, did not contemplate this construction of the law, which, in the language of the Attorney-General, 'obliterates class distinction,' soldiers who owned $1,500.00 worth of property, and widows of the 1881 extended rolls, who were made eligible under the law of 1919, cannot be paid out of the limited ap'propriation for 1923, but all of these will go on the roll without class distinction, and the back payments due these and other pensioners must stand on the record as an obligation of the State to be met by the next Legislature."

The practical administration of the affairs of your office is a matter that I have no desire to make any suggestion about, of course; it is merely my desire and purpose to keep the record straight as to questions covered in my opinion.
The General Assembly of 1921 limited payment of the money appropriated to that class of pensioners drawing pensions in 1919. In my opinion, referred to, was the following:
'~The General Assembly of 1918 submitted to a vote of the people amendments to the Constitution removing the property bar of $1,500.00, as to Confederate soldiers, and moving the marriage date of widows of Confederate soldiers from 1870 to 1881. These amendments were adopted."

While the question was not raised in the letter of Governor Hardwick to me, it was incidentally raised ih your letter to the Governor. Attention is now pointed to the fact that the property bar of $1,500 and the marriage d;:~.te requirement (marriage previous to 1870) were removed by the constitutional amendment of 1918. This was under the Act of 1918, and it was pro'Vided that these changes would become the law if and when adopted by the people.
These Acts were prior to the Acts of 1919. Therefore, when the Act of 1921, limiting the amounts to be paid to pensioners "to be the same as paid prior to all
212

Act.s of 1919," account should be taken of the change efiected by the adoption of the Constitutional amendment, above referred to, with relation to the disqualification arising out of the possession of property worth $1,500, and as to widows who had married as late as 1881.
If payments were made in 1919 in accordance with these amendments to the constitution, such pensioners would be entitled, in my opinion, to the amounts they received in accordance with those Constitutional amendments.
If they were not so paid, then your position seems entirely tenable, wherein you say: "the back payments due these and other pensioners must stand on the record as an obligation of the State to be met by the next legislature."
The constitution as amended in 1918, covers these extensions of the pension payments. If they were complied with they were "prior to all Acts of 1919," and would, therefore, regulate the amount of the payments going to these pensioners under the restrictions in the Act of Appropriations of 1921.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
COUNTY SCRIPT, OR OTHER EVIDENCE OF INDEBTEDNESS. AS LEGAL TENDER FOR DEBTS DUE COUNTIES.
October 26, 1922.
Hon. W. A. Davis, Director, State Capitol.
Dear Sir:-Your letter received, in which you say that:
"Under the Vital Statistics law the local registrars are paid a fee by the County Treasurer. In some of the counties in the State the finances of the treasury is such that the fees cannot be paid and vouchers are issued to the local registrars.
213

"Please advise me if a county can refuse, legally, to accept such a voucher in the payment of taxes, the voucher being the acknowledgment of the indebtedness of the county to the individual, the taxes being the indebtedness of the individual to the county."
It has been held by our Supreme Court in the case of Perry et al. vs. Colquitt, Governor, to be found in the 63d Georgia, page 311, that orders or script of the county are not legal tender in the payment of debts due to the State. However, with mutual claims, one against the other, that is, where some individual has a claim against the county, which has been recognized by the issuance of an order, and the county has a claim against such individual for taxes, such order or voucher of the county has been, in all cases, so far as I know, accepted in the payment of taxes.
With best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
COUNTY BOARDS OF HEALTH-EXPENSES OF, HOW PROVIDED FOR.
May 4, 1923.
Doctor T. F. Abercrombie, Secretary State Board of Health, State Capitol.
Dear Doctor :-In reply to your letter of April 30, wherein you ask opi~ion:
"As to whether, when no special tax has been levied, as provided in sections 8 and 9, above mentioned and no appropriation has been made, in a county where the operation of sections 5 to 15 of the Act has been recommended by two successive Grand Juries, the County Board of Roads and Revenue may be required to provide the funds necessary to meet the provisions of the Act?"
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In section 8 of the Act (See Geor,gia Laws, 1914, page 130), it is provided:
"The salaries herein provided for shall be paid out of any fund of the County appropriated therefor, and in the same manner as the salaries of other officers. It shall be the duty of the Board of Health of each county at its regular January session after compliance with the provisions of section 5, and each .January session thereafter, to determine and fix the sum necessary to meet the requirements of this Act, and they shall certify to the Board of County Commissioners of roads and revenues, or the ordinary of the county, in counties having no such Board, the amount so fixed upon and assessed for the purposes of sanitation and quarantine for said county, and the said taxing authority of said county shall levy such tax at the time and in the same manner as is now prescribed for levying taxes for other county purposes."
The requirement that payment of salaries shall be made of funds in hand, or that taxes be levied to pay same, is mandatory.
Difficulty would arise in enforcing compliance with this law by mandamus, a.fter the time for levying taxes has passed. Refusal and failure to provide funds, or to' levy taxes for one year, might authorize application for mandamus to enforce the law for a succeeding year.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
PRISON COMMISSION AUTIIORIZED TO EMPLOY INSPECTORS FOR INSPECTING PRISON CAMPS, ETC.
July 7, 1922.
The Prison Commission of Georgia, Hon. R. E. Davison, Chairman, etc., State Capitol.
Gentlemen :-We have your letter in which you state:
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"Sometime ago you investigated the question as to the right of the Prison Commission to employ inspectors for the purpose of inspecting the convict camps of the State, and to pay them a salary and expenses for performing said service.
"Will you please advise us what your opinion was and whether, under the law, the Prison Commission has the right to employ these inspectors? If you furnish the Executive Department with an opinion, will you please send us a copy of the same?"
Replying to the foregoing, we beg to say: An opinion was
requested and was probably prepared, but we were awaiting a written request from the Governor, and my recollection is that either that did not come, or that the copy of the opinion
was mislaid, if delivered to the Governor. Section 1194 of the Penal Code authorizes the employ-
ment of not more than four supervisors "who shall visit the various counties, inspect the convicts, and their work, and perform such other duties as may be required of them by
the Commission." But section 1191 gives the Commission power to appoint
such officers and physicians as may be necessary. And section 1196 defines the duties of officers and em-
ployees, and distinguishes them from supervisors in this
language: "No warden, deputy-warden, inspector, guard, physician, or other employee who has charge, control or direction of convicts," etc., thus indicating clearly that inspectors and supervisors are different officials, and that inspectors are included among the employees, which the Commission is authorized to appoint.
I n this connection, we cite the following opinion of Honorable John C. Hart, Attorney-General, rendered October 5, 1908:
"Q. When is the Prison Commission authorized to employ the supervisors provided for in section 20 of the Act, now, or after March 31, 1908? Does this section limit the power of the Commission, as conferred by the previous Acts, to employ such other officers and employees as may be deemed necessary, or does it merely limit the number of particular officers named in that section ?"
"A. The appointment of supervisors by the Prison Commission authorized by section 20, of the Act of 1908, whose
216

duty it shall be to visit the various counties, inspect the convicts and their work, and perform such other duties as may be required of them by the Commission, contemplates their employment when the necessity arises, and one or more now if, in the opinion of the Commission, the conditions make it necessary.
"While supervisors may be required by the Commission to inspect the camps, to confer with county authorities on the subject of road building and assist as far as possible the authorities in counties and municipalities in planning and constructing public roads and bridges, they are required to perform such other duties as may be required of them bv the Commission, under the authority of the Acts of 1897 and 1903, which are still of force, may employ such other officers as may be necessary."
It is, therefore, my opinion, that your Honorable Body is authorized to appoint inspectors and to define their duties, as may be deemed necessary.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
CLEMENCY-DEDUCTION OF "GOOD TIME" FROM AN INDETERMINATE MINIMUM SENTENCE.
The Honorable the Prison Commission, JudgeR. E. Davidson, Chairman, State Capitol.
Gentlemen :-This is to acknowledge for co'nsideration your letter of even date herewith in which you say:
"Under the indeterminate sentence law it is provided that when a convict has served the minimum term fixed in his sentence he may be allowed to be paroled under rules and regulations to be prescribed by the Prison Commission. In Section 1221 of the Penal Code, the law provides that if a convict shall "demean himself uprightly and well, he shall have deducted from the time for which he may have been sentenced two months for the second year, and three months for each subsequent year until the tenth year, inclusive, and four months for each remaining year of the term of the imprisonment.
217

"In determining when a convict has served the minimum term fixed in his sentence, should he be given credit for commutation for good behavior, as provided in section 1221, and should this be taken off of the minimum term?"
This raises some very interesting legal questions to which we have given careful attention.
The language of the Act of 1919, providing for indeterminate sentences in this State, provides:
"The Prison Commission shall fix rules by which said convicts, after serving the minimum sentence, may be allowed to complete his term without the confines of the penitentiary upon complying with said rules."
Suppose a certain convict is given a sentence qf not less than two years and not more than five years. If the convict has good conduct to his credit, is the minimum sentence completed at the expiration of twenty-two months of penal servitude, or shall such convict be required to serve out two full .calendar years, before he shall be eligible to a parole?
Section 1221 of the Penal Code is as follows:
"Commutation of term for good behavior. The superintendent of each penitentiary camp shall keep a correct register to be termed the 'good conduct account,' in which he shall faithfully keep record of each convict under his charge who shall demean himself uprightly, and shall, in his monthly report to the principal keeper of the penitentiary, state the name of such convict, and each convict who shall demean himself uprightly and well shall have deducted, from the time which he may have been sentenced, two months for the second year, three months for each subsequent year until the tenth year, inclusive, and four months for each remaining year of the time of imprisonment. This reduction of time is upon consideration of continued good conduct, and shall apply only to such convicts who have not been sentenced to imprisonment for life; and such record shall be evidence for or against the convict in any of the courts of this State."
Unless this law providing for deduction of time for good conduct has been repealed by the later law establishing the indeterminate sentence, as aforesaid, such convict would be entitled to his parole at the end of twenty-two months of the two-year minimum sentence.
218

My interpretation of this law is, that the allowance of "good time," as it is called, or deduction for good conduct, is a certain benefit and reward guaranteed by the State to en~ courage good behavior on the part of its convicts.
In the case of Chattahoochee Brick Company vs. Goings, the Supreme Court, in the 135th Georgia, pages 538, 539. held:
"The shortening of a sentence because of good behavior is a benefit conferred by the State, and entirely dependent upon the statute. The Penal Code provides that 'The superintendent of each penitentiary camp shall keep a convict register to be termed the good conduct account, in which he shall faithfully record the conduct of each convict under his
charge who shall demean himself uprightly * * * * * '
This record was made the official means of determining whether or not there should be a reduction of the sentepce."
The law thus establishes a certain and sure method of rewarding convicts for consistent good conduct and upright demeanor. To hold that this method was abrogated by the establishment of the indeterminate sentence would be to do violence, it seems, to the purpose of the law. For the Prison Commission shall fix rules by which the convict "may be allowed to complete his terms without the confines of the penitentiary," etc. The one, benefit flowing from good conduct is conferred by statute, and is certain and definite; the other, which is not mandatory, but merely permissible, depends upon the personal equation-upon the viewpoint of the members of the Prison Commission.
The record kept by the warden of the penitentiary camp is the official means of determining whether or not there should he a reduction of the sentence.
In contemplation of law, as I construe the statute, the benefit of good conduct was conferred as a matter of right. The humblest, most obscure convict must be accorded this benefit by the record.
The indeterminate sentence also holds before the convict the hopes of release, on parole or pardon, after the minimum
219

sentence shall have been served. But this depends upon rules to be set up by the Commission, and upon the opinion of the Commissioners as to the deportment of the convict.
In one case, alert and influential relatives and friends, might keep up with dates, and be on hand promptly to urge the grant of a parole. In another case, kindly and humane Commissioners might have terminated their tenure of office, while the lengthy minimum sentence of a friendless convict was drawing to a close. And Pharaohs "who knew not Joseph," might accede to power, and the convict would have no friend to bespeak pardon in his behalf.
The statute contained in Code section 1221 is the only prescribed means of ascertaining the credit the convict is to be allowed for good conduct. The statute creating the indeterminate sentence does not seem to have had in contemplation any repeal of, nor change in, the law allowing deduction of time in a convict's sentence, on account of good conduct.
In my opinion, therefore, a convict is eligible to be considered for parole as soon as the minimum sentence has been served, less the allowance for good conduct.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.
FISHING IN INSIDE AND OUTSIDE SALT WATER REGULATED.
February 8, 1923.
Ron. J. Frank Rhodes, State Game and Fish Commissioner, State Capitol.
Dear Sir :-Replying to the questions raiser in the attach-
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ed letter of Mr. J. R. Fawcett, Attorney at Law, of Savannah, Georgia, I beg to say :
The main question is as to the scope and intent of the Act of 1919, called the "Inside Salt Water Act;" (Se,e Georgia Laws, 1919, page 236).
This Act undertakes to define both 'inside' and 'outside' salt water, and to regulate fishing therein, and likewise to provide "That no boat shall engage in commercial fishing in the State without being provided with a license," etc.
The legislative intent seems to be to protect the fish in the waters of the State, and it evidently does not contemplate that fish inhabiting salt water, brackish water, and fresh water can be taken simply by running out of salt water into fresh water, and taking by boats or other means for commercial purposes, the kind of fish that more generally inhabit salt waters.
To illustrate, the Shad Act, approved August 17, 1918, provides at Section 3 thereof, "That any person who shall take shad fish from the waters of the State, .for purposes of sale, without first procuring a license from the Commissioner of Game and Fish, as hereinafter provided, shall be guilty of a misdemeanor," etc.
Our Code provides, that "in all interpretations the courts shall look diligently for the intention of the General As;.. sembly, keeping in view at all times, the old law, the evil, and the remedy." And it has been held by our Supreme Court, that in constructing an amending Act, the law amended as well as the Act amending it, shall be so constructed as to give full effect to the legislative intent.
And statutes should be construed in harmony with the policy of the law.
My opinions are quasi-judicial; that is, the controlling influences which constrain and govern opinions of the courts should constrain and govern Attorneys-General in the work they do.
Measured by the language of the statutes, I cannot see
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the Acts referred to in any other light than as heretofore stated.
Respectfully submitted. GEO. M. NAPIER, Attorney-General.

COUNTY COMMISSIONERS ARE COUNTY OFFICERS.

November 2, 1922.

Hon. Thomas W. Hardwick,

Governor of Georgia,

.

State Capitol.

Dear Governor Hardwick:-Yours of even date herewith,

to which you attach letter from Honorable M. G. Pounds,

Chairman Democratic Executive Committee of Hancock

County, in which he says :

"I write to ask that you. request the Attorney-General to render a decision as to whether County Commissioners are county officers or not?"
"The Board of County Commissioners was created by a local bill and their term was fixed as two years. I want to know whether the bill passed extending the term of county officers to four years affects the status of the County Commissioners' terms as fixed by our local bill."
"I ask for this information first hand that I might know just what to do with regard to calling a special election for County Commissioners."

It has been held that County Commissioners are County Officers, but this matter is controlled in a decision in the
case of:
Pulaski vs. Thomson, 83rd Ga. 270,
in which the Court says:
The General Assembly shall have the power to provide for the creation of County Commissioners in such Counties as require them, and to define their duties. Our opinion is that the legislature has power to pass separate and dis-
222

tinct acts for any Counties of the State, which may re-

quire county commissioners.

x x x x x

X

X

X X

X

X

' X

X

X

X

:X."

"When Commissioners are required by a County, we

think that the Constitution does not require that the Acts

creating them shall be uniform. In order to make the

acts uniform the legislature would have to pass a general

law applicable to all counties which require county com-

missioners, and this, we have seen the constitution does

not require. Or the legislature would have to pass the

same act for every county which is passed for the first

county applying for the same under the constitution of 1877.

X

X

X

X

X

X

X

X

X

:X

X

X

X

X

X

X

:X

X

X

X."'

"It is true that in the case of Conley vs. Poole, 67th Ga.

254, JACKSON, C. J., intimates that these acts should be

uniform in operation in those counties which shall require

them; but that, in our opinion, was obiter, as it was not

necessary to decide that question which he had under con-

sideration. For these reasons we hold that it is not neces-

sary for these acts creating county commissioners in dif-

ferent counties to have a uniform operation in every coun-

ty that requires them."

In my opinion, in consideration of the foregoing decision of our Supreme Court the terms of the Commissioners of Hancock County are controlled by the language of the Act of 1902, fixing their terms of office at two years.
GEO. M. NAPIER, Attorney-General.

GOVERNOR AUTHORIZED TO APPOINT CHIEF JUDGE OF MUNICIPAL COURT OF ATLANTA.
December 15, 1922.
HmJ,. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick:-Your letter of the twelfth instant, to which is attached letters from Mr. Justice J. K.
223

Hines, of the Supreme Court, and Honorable C. L. Pettigrew, of Atlanta, has been received.
The question involved is, whether the Governor is given power to appoint a Chief Judge of the Municipal Court of the City of Atlanta, under the Act of 1913?
The provisions of the Act of 1913, above referred to, are really vague and uncertain in some particulars regarding the appointment of the Judges of this Court.
The fact that Executive construction has assumed the implied authority to name the Chief Judge of this Court is entitled to great weight. This construction has been adopted and followed by three Governors. I am informed also that the Judges of the Superior Court here, since the passage of the Act, have declined to designate, or nominate, a Chief Judge of the Municipal Court of Atlanta, claiming that no such authority is given them, under the Act. No such authority is expressly given.
Statute law is construed so as to give a beneficial effect to every Act. The appointing power being in the Governor, in the event the Judges of the Superior Court do not nominate, necessary appointments should not, therefo're, fail.
My construction of the meaning of the Act in question is, that the appointments made by the Governor, should follow the nominations made by the Judges of the Superior Courts of the Atlanta Circuit, in cases of resignations, or vacancies occasioned from any cause, in the appointment of Judges in the Atlanta section of the Municipal Court; but the Act is uncertain in its provisions, and additional legislation should be enacted to remove the uncertainty.
Since the Judges of the Superior Court have failed to exercise such authority, and since Executive construction and precedent from the first have given the Governor the privilege to designate the Chief Judge, there is no legal
224

obstacle, it seems to prevent the Governor from exercising the appointing power.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
BOUNDARY LINE BETWEEN STATE OF GEORGIA AND TENNESSEE.
May 21. 1923. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick :-The resolution to which I referred several days ago, in reference to the boundary line between the State of Georgia and the State of Tennessee, will be found in the Acts of 1922, page 1139.
You will notice that this includes the counties of Walker and Dade in Georgia, and because of the issue having arisen in Murray County by the seizure of some lands of Mr. Schable by a Tennessean it would seem we will need the relocation of the line to include the counties of Walker, Dade, Catoosa and Murray, or, if you think well of the proposition, to have the whole line of the Northern boundary of Georgia run out from the Alabama and Tennessee corner to the North Carolina line.
With assurances of high regard, and best wishes, I am. VerY sincerely yours, GEO. M. NAPIER, Attorney-General.
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STATE GOVERNMENT CANNOT BE HELD LIABLE FOR INJURIES SUSTAINED BY SOLDIER.
July 12, 1922.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
This will acknowledge receipt of a file of correspondence from Thomas C. Napier, of Catoosa, County, in reference to injuries sustained by him at Fort Oglethorpe some months since.
There seems to be no way in which the State Government can render him aid.
If the building in which he was injured was a public building, or was in the use of, or under the control of, the United States Government, as quarters for soldiers, that Government should compensate him for his injuries. If the building was privately owned and operated, he would be relegated to his remedy against such private individual.
The Governor could possibly add moral support, by submitting to the United States' Authorities, the contentions of one of the citizens of this State that he had been injured through no fault of his, in a place under the supervision and for the accommodation of the military forces of the United States. This assistance has, it seems, been undertaken by Senator W. J. Harris, and the aid given by Your Excellency would be cumulative.
No other line of assistance seems to me open to the Executive.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
226

ATTORNEY-GENERAL DIRECTED BY GOVERNOR TO APP.EAR IN THE PROSECUTION OF MANN AND WILL CARTER, ECHOLS COUNTY.
February 26. 1923. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor :-I have the honor to acknowledge receipt of Your Excellency's letter under date of February 24th, wherein you directed me to appear in Echols County and assist the Solicitor General of that Circuit, before the Grand Jury of Echols County in connection with the indictment and prosecution of Mann and Will Carter, charged with the homicide of Mack Lockridge, and the shooting of Mr. Richie.
Please accept my assurances that your instructions will be obeyed to' the extent of my ability.
I am today writing to Honorable C. E. Hay, Solicitor General, of that Circuit, Thomasville, Georgia, asking him, after he reads my letter, to call me up in advance, by telephone, so that we may discuss the question of when I can have a conference with him in reference to these cases.
If it is deemed essential for me to go down this week, or at any time before the Superior Court of Ech~ls Qounty, which convenes the thirteenth of March, I will go.
As soon as posible I will also seek a conference with the Government officials who made an investigation of the facts and circumstances of the homicide, and will do all within my power to efficiently assist in the prosecution of the defendants when they shall have been indicted and apprehended.
With assurances of high respect and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
227

HIGHWAY DEPARTMENT MAY ARRANGE TO OVERDRAW FROM BANKS.
October 30, 1922.
Hon. John N. Holder, Chairman State Highway Department, State Capitol.
Dear Sir :-Yours of the 27th, instant, just received, wherein you ask:
"A budget will be made for each month for the general office, and for each division, and the money provided with which to pay this budget for the general office and each division."
"As you well know, the funds for the State Highway Department do not come into the Treasury in any very large amounts uil.til after the month January. We would like to get from the Banks of Atlanta about $65,000.00, with which to pay the expenses for the month of January, this money to be repaid not later than March 1."
"The opinion I want from you is whether or not it is legal for the State Highway Department to make this temporary loan, which we will ask the Governor to approve before it is made, and will ask the Attorney-General to draw up the papers making it legal."
You also suggest that it may be possible to make arrangements with the banks to repay them if they would let the State Highway Department overdraw until sufficient funds come into the Treasury, and from the Treasury turned over to the State Highway Board so that the overdraft might be covered at an early date.
I have not had time to look into the matter very carefully but, until I do so, could only express some doubt as to the legality of the Department making a loan from the banks, but, should the banks accommodate the Department and allow an overdraft, the entire amount of money set aside for the Highway Department is subject to its debts, and, therefore, there would be no trouble on that line.
228

If you wait until January 1st, and the banks allow you to overdraw from time to time, with the understanding that as soon as the money is received by your Department from the Treasury it would be deposited in the banks, and thus cover the overdraft, that would be the better way to handle it in my opinion.
If you find that this is not acceptable, please let me know a day or two later, and I will make a critiCal examination of the law, and render you further opinion.
With best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
STATE HIGHWAY DEPARTMENT LIABLE FOR DAMAGES DONE PERSONS, STOCK AND VEHICLES.
April 17, 1923. Hon. John N. Holder,
Chairman State Highway Department, State Capitol.
My Dear Sir :-Replying to your letter, wherein you ask for opinion as to whether the State is liable for damages done persons, stock and vehicles on its highways.
The Act of 1919, page 249, which re-organizes the State Highway Department in Provision 5, and section 2 of the Act reads as follows:
"That the State Highway Department shall defend all suits, and be responsible for all damages awarded against any county under existing laws, whenever the cause of action arises on highway jurisdiction over which shall have been assumed by the highway department, under the terms of this Act, and, provided, that any county sued shall voucher said Highway Department to defend such litigation,"' etc.
Any county may be sued for damages sustained by any person crossing a defective bridge maintained by that County. If the State Highway Department under provision 5 of the Act, has taken over jurisdiction of the road on which the bridge is located, then the Highway Department
229

will be responsible in damages ; otherwise, citizens of this State would have no redress should they sustain injury O'r damage in crossing over a defective bridge on the highways.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

PORTLAND CEMENT COMPANY REQUIRED TO FURNISH CEMENT UNDER CONTRACT.

April 3, 1923. Ron. John N. Holder,
Chairman State Highway Department, State Capitol.
Dear Sir :-This acknowledges receipt of your favor of even date, to which is attached letter of Mr. W. R. Neel, in which he says:

"We have a contract with the National Portland Cement

Company. At this time they are not furnishing us the ce-

ment which we order daily."

,

"Can we, if they continue to fail to furnish the cement on

this contract which we require, order cement from another

mill and force the National Portland Cement Company to

pay any difference in price under which they are contracted

to furnish it, and the price necessary to obtain it?"

The rule of law is, that should a party with whom you have contracted to furnish you a certain commodity fail or refuse to comply with the terms of the contract, whereby you are prevented from going forward with an enterprise in which such commodity is being used, you may, in order to avoid damage and delay go into the open market and purchase such quantities of the commodity as may be necessary to enable you to go forward with the enterprise, buying at the lowest price. Should the same cost more than the contract price the other party to the contract would be liable to you for the difference in price, and for any damages incurred.

230

My suggestion is that you give the National Po'rtland Cement Company notice that, because of their failure to Jive up to their contract to supply you with cement, as per -contract, you are forced to go into the open market and buy the necessary material to keep your work going, and that you will require them to pay the difference in the eost price above that named in their contract;
Request an immediate reply. The letter would serve a good purpose, in'the event litigation should ensue.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
'STATE HIGHWAY DEPARTMENT IS DEPARTMENT OF STATE GOVERNMENT.
July 18, 1922. Ron. John N. Holder,
Chairman State Highway Department, State Capitol.
Dear Sir :-In reply to your letter of even date with reference to your obligation to respond to a Resolution by the House and Senate addressed in a circular to all Departments of the State Government, I beg to say, first:
That the State Highway Department is in reality a Department of the State Government, but, probably not in the sense contemplated in the Resolution.
I do not think the Resolution meant to cause the State Highway Department the prodigious amount of trouble that would result in making a detailed showing covered by said Resolution.
It seems that if the Committee referred to in this Resolution had contemplated or desired that the State Highway Department should be included in the scope and effect of the Resolution, the Committee would have given .you special notice that yo'u were expected to respond to the provisions of the Resolution. Since you say that the report of the
231

Comptroller-General does not include in any way appropriations for the State Highway Department, it seems to me not improper for you to fail to respond to the copy of the Resolution aforesaid for the principal reason that the Committee has not indicated to you that it expected you to meet the provisions of the Resolution, which evidently applies specially to certain Departments of the State Government.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
TWO-THIRDS OF THE VOTERS OF A COUNTY MUST VOTE IN FAVOR OF BONDS..
February 28, 1922. Hon. John N. Holder,
Chairman State Highway Department, State Capitol.
My Dear Sir :-In reply to your request for opinion on the questions raised by letter of Mr. A. V. Howe, of Tallapoosa, Georgia, as to the majority necessary to carry a county election for bonds.
Two-thirds of the voters of the county must vote in favor of the issuance of bonds.
The tally sheet of the last general election is not used to determine the number of votes. The Registration Law has superceded Section 443 of the Political Code, which specifies the manner of determining when the neeessary two-thirds vote has been cast for bonds in a county election.
The Act of 1916 (See Georgia laws 1916, page 138) was repealed by the Act of 1918 (Georgia Laws 1918, page 99 et. seq.), which being adopted in the State elections of 1918, became a part of the State Constitution.
Paragraph 1, Section 7, Article 7, of the Constitution of the State of Georgia (Georgia Laws, pp. 99-101) provides. that:
232

"Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by the same, That Paragraph 1, Section 7, Article 7, of the Constitution of this State be, and the same is hereby, amended by inserting between the word 'thereof' and the word 'at' as they incur in the tenth line of said paragraph, the following 'voting, provided said two-thirds so voting shall be a majority of the registered voters, and provided further that all laws, charter provisions and ordinances heretofore passed or enacted providing special registration of voters of counties, municipal corporations and other political divisions of this State, to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political divisions made prior to January 1, 1918, shall not be affected hereby,' so that said paragraph when so amended shall read as follows:
"Paragraph 1: The debt hereafter incurred by any county, municipal corporation or political division of this State, except as in this Constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not exceeding one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of twothirds of the qualified voters thereof voting at an election for that purpose to be held as prescribed by law, provided said two-thirds so voting shall be a majority of the registered voters, and provided further that all laws, charter provisions and ordinances heretofore passed or enacted providing special registration of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties municipal corporations and other political divisions are hereby declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political divisions made prior to January 1, 1918, shall not be affected hereby, but any city the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this Constitution may be authorized by law to increase at any time the amount of said debt three per centum upon such assessed valuation."
Note that the "two-thirds so voting shall be a majority
of the registered voters."
The Supreme Court of Georgia has recently held in an
233

opinion not yet published, that section 442 of the Civil Code must be construed consistently therewith, and the requisite two-thirds of the voters mentioned in said section means two-thirds of the qualified voters of the county, etc.
The same opinion holds that no person is entitled to vote in an election for bonds in a given county whose name does not appear on any list of the county registrars filed with the Clerk of the Superior Court of the County, showing the names of the registered voters of the county entitled to vote.
This is true although the name of such voter does appear on the voters' book of the Tax Collector of the county, and although the name of such person was entered in such voters' book within six months of such special bond election, but more than six months before the next ensuing General State election.
It is important to keep in mind that the "Ordinary shall procure a certified list of the registered voters from the legally constituted Board of Registrars, and furnish the same to the election managers."
The laws regulating elections for incurring debts by a county, or other division, must be strictly followed in every material particular.
Section 61, of the Civil Code, provides for the supplemental registration lists, and the manner of procuring same. Of course, women who have registered within the proper time, that is, six months prior to the next General State election, will be eligible to vote, as well as men.
The oath prescribed for voters by sections 36, et. seq. of the Civil Code, must be read by, read to, or mentioned to, the voters when they sign the voters' book.
Trusting that I may have answered all the questions involved, I am,
Sincerely yours, GEO. M. NAPIER, Attorney-General.
234

COST OF COUNTY LINE BRIDGES TO BE DIVIDED IN PROPORTION TO THE TAXABLE VALUE.
March 21, 1923.
Hon. John N. Holder, Chairman State Highway Department, State Capitol.
My Dear Sir :-This is to acknowledge receipt of yours of the 16th, instant, asking opinion upon the question raised in the attached letter of Mr. Searcy B. Slack, Bridge Engineer.
This letter follows:
"I am in receipt of a letter today from Mr. C. L. Rhodes with reference to the division of cost between Pierce and Ware Counties of the bridge over the Satilla River. As I understand the matter the county line between these counties is the center of the main run of the Satilla River. At the site selected it will be necessary to construct a relief bridge to carry overflow water on the Ware County side of the River. The greater portion of the high fill approach will also fall in Ware County. The question at issue is what portion of the cost should be paid by each county."
"The law provides that in case of a county line bridge the cost shall be divided in proportion to the taxable value. My interpretation of the word 'bridge' in this law has always been the full cost of the stream crossing from high ground to high ground, and not simply the cost of the construction of a bridge over the main channel of the river." "If this bridge had been constructed two miles above the present site probably the greater portion of the bridge and approach fill would have been in Pierce County. I will be very glad if you will take this up with the Attorney-General, and secure from him an opinion as to the proper method of dividing costs in such cases."
"A matter of precedent in this case has already come up between Georgia and South Carolina on the bridge over the Savannah River at Savannah. In this case all of the islan~s are in Georgia, so the first two bridges of the project are located in Georgia, but the long approach fill across the marshes is entirely in South Carolina. The basis agreed upon between the States was that Georgia should pay half of the cost, and South Carolina pay half of the cost of the stream crossing from high ground to high ground."
"I trust that you can give this matter early attention."
235

The statute. governing this matter is to be found in Civil
Code section 755, which reads:
~
"When a bridge or ferry is necessary ever any water course which divides one county or more counties from each other, each county must contribute equally toward the building and keeping the same in repair, or in such proportion as would be just, taking into consideration the taxable property of each, and the amount expended by each in construction of bridges and other pass ways."
In the case of Brooks County vs. Carrington, 7th Georgia
Appeals, 226, the Court held:
"After earnest reflection upon the matter we are of the opinion that the bridge is a .county line bridge. The line betwen Brooks and Lowndes Counties is fixed by the Act of 1859 (Acts 1859, p. 299) and the Act of 1870 (Acts 1870, p. 28) as being the 'east bank of Little River from the junction of Willacoochee and Little River to the line of Berrien county.' It is true that this leave the entire stream in Brooks county, and makes the bank nearest to Lowndes County the Boundary line. Nevertheless we are constrained to hold that Little River is such a stream as is contemplated by the language 'any water course which divides one county or more counties from each other' found in the Potlitical Code, section 367, 610. We do not think the legislature intended to confine the operation of these sections to cases where the center of the stream is the boundary. It may be noticed that the cost of building such bridge is not divided according to whether the major pore. tion of the bridge may or may nQt lie in one or the other of the counties, but the expense is to be divided 'in such proportion as would be just, taking into consideration the taxable property of each, and the amount expended by each in construction of bridges and other passways.' We think that it is in accordance with common parlance to speak of Little River as dividing Brooks County from Lowndes County, just as in ordinary speech we say that the Chattahoochee divides Georgia from Alabama, although the actual boundary is at the hignwater mark on the Alabama side."
The question next arises, are the abutments, approaches, fills, etc., contiguous to a bridge to be considered a part of
the bridge? This question is clearly settled in Daniels vs. Athens, 55th Georgia 609. In the opinion, Justice Jackson held as follows:
"The court charged in substance, that if the embankment was contiguous to the bridge and necessary to enable
236

teams and wagons to cross the stream over it, it was part Qf the bridge, in law, and this is complained of. We think this principle is good law. The bridge would be ?seless without access to it, and the good sense of the rule IS supported by authority. Indeed, in England the distance wherein such access would be considered a part of the bridge has been held to extend to three hundred feet. In this country this rule is perhaps modified, but it is always and everywhere held, so far as we have examined that what is reasonably necessary by way of elevating the ground to roll the wagons up to the bridge, is part of the structure, and as the court below charged, carries the title to the main bridge over the abutment or embankment. See Shearman & Redfield on Neg., Sections 252, 253, and cases there cited."
Affirmed in Howington vs. Madison County, 126 Ga. 009.
Thus the Supreme Court has held that a contiguous embankment necessary to provide access to a bridge so as to pass teams and vehicles over it is a part of the bridge. This principle of inclusion would embrace also what is termed by the engineer, a relief bridge, allowing for the passage of water, apart from the main stream over which the bridge
may .be constructed. The Common Law and the statute laws of many States
amply sustain the principle set forth in the opinions above cited. Indeed the trend of authority is to broaden, rather than to restrict. It is tenable to hold liberal~y that a ..bridge" in modern parlance includes the approaches, fills and abutments of every character necessary to make it
accessible and convenient for public travel. Such approaches thus become, and are, a part of the bridge, because the mere structure called the bridge is useless, and virtually worthless, without the contiguous embankments, abutments and approaches which make the bridge available.
My opinion is that, in building a bridge across a stream, which separates two counties, and which constitutes the boundary line between them, the necessary cost of such hridge includes the expense of building all embankments, abutments, causeways, relief bridges, and the like appurtenances which may constitute the needful approaches to the bridge; and that, under the statute first above quoted,
237

"each county must contribute equally toward the building and keeping the same in repair, or in such proportion as may be just," no matter how much of the approaches may be located in either county. Even if all such approaches. should be located entirely in one of the two counties, if they are necessary to provide convenient access to the bridge property, their cost is to be deemed a part of the expense of building the bridge-the cost to be apportioned between the two counties in accordance with the statute.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
SCHOOL DISTRICT OF TIFTON. LIMITATION OF RATE OF TAXATION FOR SUPPORT OF.
October 18, 1922.
Hon. M. M. Parks, LL. D., State Superintendent of Schools. State Capitol.
Dear Doctor Parks :-In reply to your favor, to which is attached letter of Prof. A. H. Moon, Superintendent of Schools, Tifton, Georgia. Mr. Moon says:
"The Tifton charter passed in Summer session of the Legislature 1920, gives a six mills tax limit for schools in Tifton."
"The Constitutional amendment adopted by the voters of the State in the election of November 1920, having previously been passed and submitted by the legislature, provides that counties, school districts and municipalities, may upon vote of two-thirds of those voting levy as much as. ten mills for school purposes."
"The questions we wish to determine are these?First-"In order to increase the tax rate for schools! next year in Tifton, would it be properly effected by calling election under the provisions of the Constitutional amendment?"
238

Second-"Does the amendment, rather than the proviso of the charter, apply in such action?"
Third-"Would the charter have to be amended as rega!'ds the six mills limit for schools before and increase in tax rate for schools could be authorized?"
Fourth-"Could the increase in school tax be authorized by Act of the legislature? In that event would such Act have to be ratified by the vote of the people of Tifton?"

Will state generally, in reply to the foregoing questions

that:

Section 1537 of the Code, limits the amount of taxation

which may be levied in municipalities to a rate of one half

of one per cent, or, as we usually term it. five mills on the

dollar.

,

In 1920, there was submitted to the voters of the State

an amendment to the Constitution, which limited taxation

for the support of the public schools, under the control of

municipalities to five mills on the dollar, on all the taxable

property of the county outside of Independent Local Sys-

tems, and the same amendment, which was duly adopted

provided:

"An additional levy to that already allowed, not to ex-

ceed five mills shall be permissible in Independent Local

Systems, municipalities or school districts on a two-thirds

vote of those voting. x

x

x

x

x

x."

Hence, it seems that it would be better for the Tifton City School Board to limit its rate to five mills, and then to proceed to submit the proposition to levy five mills additional to the voters of the City.
If a two-thirds majority of those voting in such election should favor additional taxation, the same will be effe-ctive.
I believe that my reply has covered the various questions asked by Prof. Moon, except perhaps the fourth question. If the legislature stands by the limitation of five mills con.tained in the statute, above quoted, it would not be able to authorize the enlargment of the rate of taxation. In the event it undertook to do so, the Act would not have to be ratified by the vote of the people of Tifton, but when an
239

increase in the rate of taxation above five mills is under~ taken, the people of Tifton will need to ratify that, as above stated.
With assurances of high regard and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
SCHOOL 1SYSTEM, INDEPENDENT. WHAT CONSTITUTES
August 31. 1922.
Doctor M. M. Parks, State Superintendent of Schools, State Capitol.
Dear Doctor. Parks :-Complying with your request to look over the two letters of Honorable A. V. Howe, Secretary of the Board of Education, Tallapoosa, Georgia, wherein he refers to opinion I recently rendered in reference to the school tax for his municipality, I beg to say that:
It may be more of a practi~al question than a legal one as to what is an "independent school system,'' but in my own mind, I take it that an independent school system is simply a town that conducts its public school as a unit entirely free from any control or direction of the County Board of Education. The independence of such a local system is rather in the control of the school than in the manner of receiving the money to support it. It is provided in the law that such systems may receive their money direct from the State. The fact that they receive their money direct from the State would not, it seems, deprive the system of its independent aetion, so far as the County Board of Education is concerned.
In the decision, rendered a few days ago, by our Su-
240

preme Court in a case involving school taxation in Irwin County, the Supreme Court said:
"Where by popular vote, under the provisions of the Constitution of this State in force, prior to the adoption of this amendment, public schools had been established and maintained by local taxation in Counties, such systems are preserved by the amendment, and no additional election is required to maintain the school tax levied by popular vote. In sucl;l cases Boards of Education are without authority to change the tax fixed and established by popular vote, except within the limits of this amendment. Systems already established are preserved and perpetuated."
In the case of Smith vs. Board of Education, in Washington County, in a decision not yet published, the Court 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 Educ.ation, assess and collect taxes for the support of public schools under its control, not less than one, nor more than five mills on the doUar of all taxable property of the county outside of independent local systems, which shall be distributed equitably according to the school population, tax values, the number of teachers and their grade or license, among the public schools therein."
"Under a proper construction of the foregoing provision of the Constitution, the Board of Education of Washington County is invested with the power and authority to recommend to the Board of Commissioners of Roads and Revenues of said County a tax of not less than one nor more than five mills on the dollar of all taxable property of the County outside of independent local systems."
If Tallapoosa is considered to be an independent system now, then the additional tax, under the last quoted decision, will not apply to the property within the independent local system .
Trusting that this may fully answer the inquiries propounded by Mr. Howe, I am, with kind regards,
Very sincerely, GEO. M. NAPIER, Attorney-General.
241

BOARD OF EDUCATION HAS FINAL SAY IN ELECTING TEACHERS.

August 7, 1922.
Hon. M. M. Parks, State Superintendent of Schools, State Capitol.
Dear Doctor Parks :-This acknowledges receipt of your request for consideration of questions raised in the letter of Hon. J. H. Bullard, Superintendent of Schools of Fitzgerald, Georgia.
The question submitted is whether Truste~s of local schools have authority to elect teachers for their schools, or whether they may simply nominate the teachers to theCounty Board of Education.
Section 121 of the School Code provides that such local schoo'l trustees are authorized, among their other duties:
"to aid, .by recommendation of desirable applicants, thP County School Superintendent and Board of Education in securing teachers."

The Act of 1889 (See Georgia laws 1889. page 122), provides:

"That it shall be the duty of the School Trustees herein

provided for to supervise the school operations of their

sub-districts, to visit the schools and to make such recom-

mendations to the County Boards, in relation to the school .

interests of their sub-districts, as may seem to them best,

and especially in the matter of choosing teachers for their

su.b-districts. It shall be their right to recommend appli-

cants, and it shall be the duty of the County Boards to

choose as teachers the persons so recommended; provided

they shall be persons duly qualified and eligible according

to the provisions of existing laws; and furthermore it

shall be the duty of school trustees, in recommending persons as teachers, to recommend those persons who, ~n

their opinion, are the choice of the communities to be

served. X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

L"

While this law of 1889, has been superseded by the pres242

ent School Code, the Governing section (No. 121) accords with the spirit of the law of 1889. The function of the local trustees is to aid the County School Superintendent, and Board of Education in securing teachers. The Board of Education secures the teachers by the aid of the local trustees.
In my opinion, the Board of Education has the right to say the last word in selecting teachers for the common schools of the County; It should, of course, be no arbitrary
exercise of power, but a' co-operative function, considering
the entire matter along the rather comprehensive lines indicated by the law of 1889.
Trusting that the foregoing answers the inquiries heteinbefore referred to. I am,
Very sincerely, GEO. M. NAPIER, Attorney-General.

COUNTY COMMISSIONER OF HEALTH NOT REQUIRED TO ENGAGE IN MEDICAL PRACTICE FOR THE WARDS OF THE COUNTIES.

March 5, 1923.

Hon. T. F. Abercrombie, M.D., Secretary State Board of Health, State Capitol.
Dear Doctor Abercrombie :___:This will serve to acknowledge receipt of yours of this date, which presents the following questions (the paragraphs being numbered by us for convenience in replying:

First-"Please advise me if the Ellis County Health' Law,

pased in 1914, requires the County Commissioner of Health

to do the charity practice of the county, unless required

to do so by the County Board of Health. acting under

the authority of section 2 of this law?"



243

It
Second-"Can section 11, which sets forth the duties of the Commissioner of Health, be interpreted as requiring him to practice medicine for the citizens of the County?" . Third-"If, after reading these two sections, you are of the opinion that the Commissioner of Health of the county is prohibited from practicing medicine, I shall be glad to have you state that in your opinion."
Answers to the foregoing numbered paragraphs are submitted as follows:
First-In my opinion, it does not. Second-No. Section 7 of the Ellis Health Law, (See Georgia Laws 1914, page 129), provides that the County Commissioner of Health shall give his entire time to the duties of his office, and shall not engage in private medical practice, or actively in any other line of business. Third-In view of the portion of the law just hereinbefore cited, the Health Commissioners are clearly prohibited from engaging in "private medical practice."
Respectfully yours, GEO. M. NAPIER, Attorney-General.
THE GEORGIA SECURITIES LAW APPLIES TO BANKS.
May 31, 1923.
Hon. Thomas B. Connor, Chief Examiner, State Capitol.
Dear Sir :-In reference to the liability of a bank selling securities in this State, without license from the Securities Commission, about which you have heretofore asked my opinion, I beg to submit the following:
The following paragraph in section 5, of the Act of 1922, known as "The Georgia Securities Law," applies to banks. as well as to other corporations, firms or individuals:
244

"The term, or word 'dealer' shall be deemed to include any person, company, trust, partnership or association, incorporated or unincorporated, selling or disposing of any such securities through agents or otherwise, or engaging in the marketing or quotation of securities either directly or indirectly or through agents or underwriters, or any stock promotion scheme whatever."
A bank, unless it is collecting some security deposited or hypothecated with it, cannot engage in the business of selling securities, unless authorized so to do by the Securities Commission.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
PROPERTY WITHIN INDEPENDENT LOCAL SCHOOL SYSTEMS IS EXPRESSLY EXCEPTED FROM SUCH TAX.
August, 3, 1922.
Hon. M. M. Parks, State Superintendent of Schools, State Capitol.
Dear Doctor Parks :-Acknowledging receipt of yours of this date, to which are attached two letters of Mr. M. A. Howe, of Tallapoosa, Georgia, which letters are herewith returned to you.
Mr. Howe inquires whether county authorities can levy a tax recommended by the County Board of Education upon property located within the corporate limits of an independent school system.
The statute is very clear on this point. The Act of 1919, submitting the Constitutional amendment (See Georgia Laws 1919, page 67) contains the following:
"The proper county authorities whose duty it is to levy
245

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 not less than one nor more than five mills on the dollar of all taxable property of the county outside of independent local systems which shall be distributed equitably according to the school population, tax values, the number of teachers and their grade of license, among the public schools therein."
Note the property within "independent local systems" is expressly excepted from such tax.
Trusting that this may fully answer the inquiry, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
FEES: FOR ADMINISTRATION OF OATH BY ORDINARIES, TO MEMBERS OF BOARDS OF EDUCATION.
August 1, 1922. Hon. M. M. Parks,
State Superintendent of Schools, State Capitol.
Dear Sir :-With reference to the fee charge an Ordinary is authorized to charge for administering the oath of office to a member of the Board of Educa:tion, we beg to sa~ that:
Section 4799 of the Code provides: "That Ordinaries may administer oaths in all cases where the au~hority is not specifically delegated to some other officer, and to receive the same fees as are allowed Justices of the Peace."
Sction 6003, provides that the tfee for justices of the peace for each affidavit, where no cause is pending thirty cents. However, section 6003 provides that justices of the peace and notaries public who are ex-officio justices of the peace who are located within the corporate limits of cities
246

having a population of not less than 54,000 and not more than 80,000 inhabitants, may charge. fifty cents for each affidavit when no cause is pending.
In my opinion this fixes the fee for justices of the peace, and likewise for the Ordinary in administering the oath of office to an official who may be sworn in by such justice of the peace or ordinary.
It seems that there is no specific provision covering the fee to be allowed for administering the oath Qf office, the :statute defining the fee of justices of the peace for an oath or affidavit, and taking affidavits seems to put these on a parity, and therefor, the provision for fees for taking affidavits is held sufficient to cover the fees for administering oaths.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
:STATE ENTOMOLOGIST MUST BE A "PRAC'l'ICAL ENTOMOLOGI,ST."
January 13, 1923. The State Board of Entomology,
State Capitol. Gentlemen :-Replying to your request for opinion as to what make up the qualifications necessary for the State Entomologist, I beg to say: The Act requires that he must be a "practical entomologist." Any one who has been successfully working for a number of years as an entomologist would be termed a "practical entomologist" within the meaning of the Act. If such a party had been working for several years with the State Board of Entomology, or doing other work, involving, a fair degree of practical experience in entomology, either
247

scientific or applied, would meet the requirements of the Act, in my opinion.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STATE BOARD OF HEALTH NOT AUTHORIZED TO CREATE TITLE OF "COMMISSIONER OF HEALTH." April 25, 1923.
Doctor T. F. Abercrombie, Secretary State Board of Health. State Capitol.
My Dear Sir :-Regarding the resolution of the State Board of Health, adopted July 7, 1920, authorizing the Board, if it was found that it had the power to create the title of "Commissioner of Health for the State of Georgia" for the Secretary of the State Board of Health, about which you asked my opinion recently, I beg to submit the following:
While there may be no violation of the law in creating a title of this character, the exercise of such a privilege by a Board would not be conducive to regularity and consistency, in the titles of our officials.
In my opinioh, a Bill s~ould be introduced to fully au-
thorize the creation of the title of Commissioner of Health for the State of Georgia.
Of course, it seems that Health Officials in the various counties of the State _who act as Commissioners of Health would thus be properly co-ordinated with the Commissioner of Health for the State? It seems this would be desirable.
In conclusion, it is my suggestion that you have such a Bill introduced in order to make the use of such a title regular and lawful, by your Board.
With assurances of high regard and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
248

STATE BOARD OF EDUCATION IS ADVISORY AND APPELLATE BODY.
September 23, 1922. Hon. M. M. Parks, LL. D.,
State Superintendent of Schools, State Capitol.
Dear Doctor Parks :-In reply to your inquiry as to the jurisdiction of the Board of Education to consider and determine a contested election for School Trustees, I beg to submit the following:
Section 120 of the School Code provides that an election for Trustees for each District in a County, shall be held at a time and place, and in the manner prescribed by the County Board of Education. Apparently the school code no where undertakes to provide for the hearing of contested elections for any school officer.
It is true that the State Board of Education is both an advisory and an appellate body. Section 125 of the Political Code provides that "whenever any contest arises over an election of any constable, municipal officer, or other officers not herein before provided for, the same shall be filed with, heard and determined by the ordinary of the County wherein such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor."
In the absence of some specific provision of the law it seems that this section would control.
It may take a decision of the High Court to finally set the matter at rest, but, on its face, it seems that the whole matter is governed by said section 125.
With assurances of high regard, and best wishes, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
249

OWNER OF SAPELO ISLAND HAS RIGHT TO RESTRICT HUNTING AND FISHING ON SAME.
November 14, 1922. Ron. J. Frank Rhodes,
State Game and Fish Commissioner, State Capitol.
Dear Sir :-Replying to yours of the 13th instant, attaching letter of Messrs. Tyson & Tyson, Attorneys, relative to the rights of an owner of Sapelo Island, respecting the control of streams and estuaries surrounding that Island.
The proviso contained in paragraph 1 of the Act of Protection of Islands (See page 21, Laws for the Protection of Game and Fish) is as foll.ows:
"Provided, That this Act shall be held to apply only to a salt water creek, stream or estuary that enters and ends in an island owned in its entirety by a single ownership, family or estate."
In my opinion, the terms and provisions of this Act are applicable to Sapelo Island, and that persons may be prohibited from fishing and hunting in any and all "Salt water creeks, streams or estuaries that enter and end" in Sapelo Island. Provided, of course, that this Island is "owned in its entirety by a single ownership, family or estate."
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
250

STATE ENTOMOLOGIST REQUIRED TO MAKE BOND.

April 7, 1923.

Hon. Ira Williams, Field Agent, State Capitol. Dear Sir :-Replying to your personal inquiry as to the
necessity of your making a bond since you have been elected State Entomologist:
Section 2 of the Act of 1916, page 42, provides as follows:

"The State Entomologist 'Shall be required to give a

surety bond sufficient to cover the amount on hand at any

One time." X

X

X

X

X

X

X

X

X

In view of this mandatory law, it is necessary and per-

fectly proper for you to immediately comply with the pro-

visions of the Act, and give the bond, in an amount suf-

ficient to cover the amount of money you may have on hand

at any time.

Trusting that this may fully answer your inquiry, I am,

Very sincerely yours,

GEO. M. NAPIER,

Attorney-General.

SUPERINTENDENT OF BANKS AUTHORIZED TO BRING SUIT.

Hon. T. R. Bennett,

Superintendent of Banks,



State Capitol.

Dear Sir ;:._In re: Bank of Emanuel.

March 28, 1923.

This acknowledges receipt of yours of even date. My suggestion is that Bonding Company should enter into a stipulation that, in consideration of your withholding suit against it until the Tax Collector is allowed to

251

sue and try out his claim, that Company should agree that you might at any time amend your suit against it, by including the claim based on the deposit slips referred to. If he should lose, you would not need to sue the Bonding Company. Should he win, you would need to bring suit against the Bonding Company.
Should the Bonding Company decline to make this stipulation, you would need to bring suit immediately, in order to prevent suit being barred by the provisions of the contract with the Bonding Company. Of course, if the evidence were O'Verwhelming either way, I would deem it your duty to act along that line. Should the Bonding Company decline to make the arrangement, it appears the safer plan to bring suit against it and set up the Hall claim, as otherwise you would never again have the opportunity to bring such suit.
The agreement referred to would give the Bonding Company the opportunity to follow the line of least resistance, with an excellent prospect of not being sued at all.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
CONFEDERATE VERERANS EXEMPT FROM LICENSE FEES.
January 24, 1922.
Hon. M. E. Christie, Assistant Commissioner, State Capitol. Dear Sir :-Agreeably to your request under date of the
22, instant, inquiring whether John Lipscomb, Confederate veteran, who holds a license from Junge Thomas H. Jeffries, Ordinary of Fulton County, is entitled to have issued to"
252

him from your Department a license, or permit, to operate an "employment~agency" I beg to submit the fo}lowing:
Paragraph 1888 of the Code of Georgia pr<Nides that Confederate veterans, and others named in said section: "Confederate soldiers, resident in this State may peddle or conduct business in any town, city, county, or counties thereof, without paying license for the privilege of so doing, and the certificate of the ordinary of any county of the State, stating the fact of his being such disabled, CYr indigent, soldier, etc."
In the 109th Georgia, page 112, it is held that a person entitled to the ordinary's certificate, under this section, may conduct business without paying a license tax to municipal corporations upon any particular business so carried on."
There is a well known rule, however, that licenses to conduct business of any kind, issued to a i!loldier, is not transferable. One individual soldier may conduct a business himself, but cannot take into partnership another person under the license to carry on a business.
The license above referred to is herewith returned. Very sincerely yours, GEO. M. NAPIER, Attorney-General.
'STATE BOARD OF ENTOMOLOGY HAS FULL POWER TO ENACT RULES.
January 31, 1923.
Hon. Ira W. Williams, Field Agent, State Capitol.
Dear Sir :-Replying to yours of the 29th, instant, wherein you say that you have a nurseryman who promised to
253

fumigate his trees, in connection with similar work to be done by a neighbor, and that you issued a certificate to him, but later found that he did not fumigate his trees, and hi& certificate was then revoked. The question is what can be done to compel him to fumigate, when he contends that you cannot enforce the law.
This proposition is not without difficulties. Citizens who take a notion to be obstreperous can, of course, give no end of trouble.
The amendment to the law governing the Department of Horticulture and Pomology, adopted August 16, 1916 (See Georgia Laws, 1916, page 42) provides that the State Board of Entomology shall have full power to enact such rules and regulations covering the inspection, certification, sale, transportation, and introduction of trees, shrubs, cuttings, vines, roots, etc., that they may deem necessary, and to prevent further introduction, increase and dissemination of insect pests and plant diseases, and shall have the power to conduct experiments for the control of dangerous insects and diseases.
Code section 2121 provides that the State Entomologist, appointed by the Commissioner of Agriculture, shall act as inspector, under the provisions of this chapter, and it shall be the duty of the Board to promulgate rules and regulations in accordance with this chapter for the government of the entomologist in the discharge of the duties devolving upon him.
Code section 2124 relates to the treatment of infested trees and plants to be prescribed by the inspector. This provides, as you will note, for the condemnation of the trees. and their destruction by the inspector.
Code section 2125 provides that when a person refuses to execute the directions of the Inspector or of the Board,. after an appeal thereto, as provided in code section 2123, the County Judge, or Ordinary upon complaint filed by the Inspector, shall cite the person, or persons to appear before him within three days. after being served with such, and
254

such judge shall cause the prescribed treatment to be executed, and the expenses thereof, and costs of the court shall be collected from the owner or owners of the infected plants.
The inspectors are empowered with authority to enter upon any premises thus described, and any person who shall obstruct, or hinder him shall be guilty of a misdemeanor.
If necessary to resort to drastic measures any infested trees can be condemned and destroyed.
It would seem that the owner of such trees should be notified of his forfeiture and loss, and by this means he would comply with the requirements of your Board.
Very truly yours, GEO. M. NAPIER, Attorney-General.
REVENUE AGENTS NOT ALLOWED TO DEMAND DETAILED INFORMATION AS TO CUSTOMER'S ACCOUNTS IN BANKS.
March 1, 1923. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir:-This acknowledges receipt of yours of even date herewith, wherein. you say:
"In order that I may be in a position to advise bankers of the State, as to just what iii! required of them, in a legal way, as to revenue agents requesting, or demanding detailed information as to customers' accounts, I should like to have your opinion as to procedure necessary, if any, in complying with such requests or demands."
The Constitution of the State of Georgia, Article 1, Paragraph 16 (Code section 6372) provides as follows:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
255

and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported, by oath, or affirmation, particularly describing the place or places to be searched, and the persons or things to be seized."
The United States Constitution uses exactly the same words.
This means what it says, that the people of the State have the right "to be secure in their persons, houses, papers andl effects against unreasonable searches," etc.
One's bank account is a mere transfer, in a private manner, from a purely personal environment to the private and confidential knowledge and transactions of the bank, and its officers and employees. The effort to i}\vade the business privacy of a bank for the purpose of discovering the amount of money any .customer of the bank may have on deposit is unauthorized in law. It is an invasion, not only of the rights of the bank, but of the rights of the de;. positor.
No person can be secure in his "papers and effects," if his ban,k account can be scanned and examined into by any }'lerson at will and pleasure.
Mr. Justice Lumpkin said in the case of:
Williams vs. State, 100 Ga. 515.
Williams vs. State, 100 Ga. 515.
"It may here be remarked that no distinction is, or should be, observed ~tween an unauthorized search of the person, and one which merely involves an invasion of the citizen's constitutional right to be secure in his 'houses, papers and effects;' for Rone 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 immunity from an unreasonable search of his person."
And from the same case :
"This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful upon executives, so that no law
256

violative of this constitutional inhibition should ever be en-

forced; and upon the judicary so as to render it the duty

of the courts to denounce as unlawful every unreasonable

search and seizure, whether confessedly without any color

of authority, or sought to be justified under the guise of

legislative sanction. For the misconduct of private persons,

acting upon their individual responsibility and of their own

volition, surely none of the three divisions of government

is responsible. If an official, or a mere petty agent of the State, exceeds or abuses the authority with which he is

.

clothed, he is to be deemed as acting not for the State, but

for himself only; and, therefore, he alone, and nqt the

State, should be held accountable for his acts. If the con-

stitutional rights of a citizen are invaded by a mere in-

dividual, the most that any branch of government can do

is to afford the citizen such redress as is possible, and bring

the wrong-doer to account for his unlawful conduct."

In my opinion, no bank has any right to allow any indi~ vidual, whether an officer, revenue agent, tax agent, or official of any kind whatsoever, to examine into the private accounts of customers of the bank, to obtain information regarding such accounts. There is a legal method by which books and papers may be brought into Court. Until that method is brought into play, all persons should be secure -actually and Constitutionally secure-in the private and confidential posses~ion of their papers and effects committed to the bank severally selected by each.
The examination of the private accounts of depositors of a bank, by an outsider not legally authorized would be the exercise of the highest tyranny and oppression, of a power monstrous and revolting. It is the equivalent of the ruthless invasion of a private home, and the search in that locality sacred from the presence of an unwelcome intruder, of the private papers andl effects of the owner.
The Government may obtain information concerning the income tax due by individuals, but not by prying into the "private papers and effects" of its citizens, which the Federal and State Governments alike have, by their Constitu-

257

tions, guaranteed to be safe, and sacred, and free from unreasonable searches and seizures.
Respectfully supmitted, GEO. M. NAPIER, Attorney-General.
ACT OF 1921 DOES NOT MAKE ANY CHANGE IN THE METHOD OF MAKING RETURNS OF ELECTIONS.
October 20, 1922.
Ron. S. G. McLendon, Secretary of State, State Capitol.
Dear Colonel McLendon :-Replying to yours of October 19th, in which, you say:
"Section 100 of the Code provides that the Governor, within twenty days after an election, shall count up the votes for Congressmen, and immed_iately thereafter issue his proclamation declaring the person having the highest number of votes to be duly elected, etc." Section 102 provides that the election returns for a United State Senator must be made to the Governor, and that the Governor, the Secr(ltary of State, and the ComptrollerGeneral shall count up the vote and declare the result."
"I call your attention to the Act of the Legislature of 1921, making all election returns, returnable to the Secretary of State, and this Act of 1921, requires the Secretary of State to consolidate the vote and certify the result to the Governor."
"In order to avoid any confusion on this subject, let me ask you if Section 100, and section 102 of the Code are not repealed by the Act of 1921 ?"
"Within a day or two, the Governor will send out election blanks for the election to be held November 7th, and along with these blanks, he will send, of course, the necessary instructions. "I will thank you for an opinion on the point covered by this letter."
The Act of 1918 in the Caption thereof, is defined as "An Act to prescribe the manner in which the returns of elec-
258

tions for Secretary of State, Treasurer, Comptroller-General, and all other State House officers, who are to be commissioned by the Governor, shall be made, and for other purposes."
The Supreme Court, in the case of:
Napier vs. McLendon.
held that the second section of the Act included the office of the Attorney-General, only in the event that he is embraced in the expression 'every other officer where the returns required are made to the secretary of State, the Court saying:
"That is a definitive term by which we must be guided in determining whether the Attorney-General is affected by this Act. The caption of the Act is clearly broad enough to embrace the Attorney-General, because it prescribes the manner in which the returns of elections for certain specified officers 'and all other State House officers, who are to be commissioned by the Governor', shall be made."
By the Act of 1921, and under section 2 of the Act of 1918, it is provided:
"That the returns of the election of every other officer, where the returns are required to be made to the Secretary of State, shall be sealed up in a separate package and transmitted to the Secretary of State, whose duty it shall be to open the returns, consolidate the vote and declare the result, and certify to the Governor the names of the persons elected, and the Governor shall issue commissions to such officers as shall appear from the certificates of the Secretary of State to have been elected."
From the caption of the Act of 1918, and from the scope of section 2, as amended by the Act of 1921, it seems that the Legislature did not contemplate making any change whatsoever in the manner of making the returns, an.d in consolidating the vote, etc., of elections for Congressmen and United States Senators.
The Act of 1921 (See Georgia Laws 1921, page 91-2) amends section 82 of the Code by striking from paragraph 9 of that section the word 'Governor' where it occurs in
259

said section, and by inserting in lieu of said word, the words 'Secretary of State,' so that, when amended, said section shall provide for the returns of electio.ns now required to be made to the Governor, to the Secretary of State instead of the Governor.
Nothing appears in this amendment to indicate that a change was contemplated in the manner of consolidating and making returns of elections for Congressmen and United States Senators.
It is, therefore1 my opinion, that the Act of 1921 did not effectuate any change in the established method of making returns of elections for Congressmen and United States Senatdrs in this State.
Respectfully submitted, GEO. M. NAPIER, Attorney-GeneraL
WHEN TRACTION ENGINE IS ATTACHED TO TRAILER OR TRUCK IT BECOMES MOTOR VEHICLE.
October 25, 1922.
Hon. S. G. McLendon, Secretary of State, State Capitol.
Dear Mr. Secretary :-Replying to yours of October 23rd, in which you say:
"I have a letter from the Purchasing Agent of the Columbus Electric & Power Company, which is as follows:
'We have just purchased a Fordson tractor, together with a two and a half ton trailer, which is to be used by us for trucking purposes. We
260

understand that there is no State license for the operation of this machine, and will thank you to advise if this is the case.' "The law simply provides that traction engines shall be exempt from the payment of fees. Now when trailers are attached to the traction engine, are they trucks, and subject to the payment of license fees, or do the trailers get by as a part of the traction engine? The law is silent.'' "I ask you, therefore, to interpret the law and to advise me what to say to the Columbus Electric & Power Company?"
The Encyclopaedia of Law, Volume 39, Page 1125, thus describes vehicles :
"Any carriage moving on land, either on wheels or runners; a conveyance; that is used as an instrument of conveyance, transmission or communication; that in which anything is carried, x x x x x x x."
The law places license tags on motor vehicles, but expressly exempts traction engines, and that means the traction engine by itself. Evidently, when anything is attached to the traction engine, which moves, either on wheels or runners, which may be used as an instrument of conveyance, transmission or transportation, the same becomes a motor vehicle under the terms of the law.
My opinion, therefore, is that when a traction engine is attached to a trailer, or a truck, or a carriage, of any kind or description, it becomes a motor vehicle, and is subject to taxation.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
261

BIRTH OF CHILD SHALL BE REGISTERED.
January 9, 1923.
Hon. W. A. Davis, Director Bureau of Vital Statistics, State Capitol Annex. Dear Doctor :-Replying to yours of December 29th,
which has not had earlier attention because of absence from the State, I beg to say that:
You ask the question whether physicians can lawfully refuse to furnish certificates of births and deaths because they are not paid for same:
Section 1676 (z) of the Civil Code provides as f?llows:
"The birth of each and every child born in this State shall be. registered as hereinafter provided."
The following paragraph is extracted from section 167S (aa) :
"In each case where a physician, midwife, or person acting as midwife, was in attendance upon a birth, it shall bE the duty of such persons to file in accordance herewith the certificate herein contemplated."
Section 1676 (11), provides that:
"Any person who for himself or for an officer, agent or employee of any person, or of any corporation or partnership (a) shall inter, cremate or otherwise finally dispose of the dead body of anv human being or permit same to be done, or shall remove such body from the primary registration district in which the death occurred, or the body was found, without the authority of a burial or removal permit issued by the local registrar of the district in which the death occurred or in which the body was found; or (b) shall refuse or fail to furnish correctly any information in his possession, or shall furnish fa:lse information affecting any certificate or record, required by this law; or (c) shall willfully alter, otherwise than is provided by section 1676 (ee) or shall falsify any certificate of birth or death, or any record established by this law; or (d) being required by this law to fill out a certificate of birth or death and file the same with the local registrar, or deliver it, upon
262

request, to any person charged with the duty of filing the same, shall fail, neglect, or refuse to perform such duty in the manner required by this law; or (e) being a local registrar, deputy registrar, or sub-registrar, shall fail, neglect, or refuse to perform his duty as required by this law, and by instruction and direction of the State Registrar thereunder, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall for the first offense be fined not less than five dollars, nor more than fifty dollars, and for each subsequent offense not less than ten dollars, nor more than one hundred dollars, or be imprisoned in the county jail not more than sixty days, or be both fined and imprisoned in the discretion of the court."
Respectfully submitted, GEO. M. NAPIER, Attorney-G'eneral.
LAW REQUIRES ALL EMPLOYMENT AGENCIES TO OBTAIN LICENSES.
October 14, 1922.
Hon. H. M. Stanley, Commissioner of Commerce and Labor, State Capitol.
My Dear Sir :-Replying to yours, under date of yester,day, in which you ask:
"Please advise me if under paragraph B of the Act approved August 17, 1920, all employment agents are required to obtain a license from this Department, and give bond, or whether the law applies only to paid agencies. There are any number of concerns in the State, which have employment agency features, such as typewriting concerns, business colleges, and others of like character. While they make no charge directly or indirectly there may be remuneration for services rendered. There are other agencies such as the Y. W. C. A., which do an employment agency business. In last night's paper, I noticed that an institu7 tion has sprung up which is charged with selling college degrees, which has an employment agency features. I will be glad if you will advise me fully with reference to the matter."
263

The language of Paragraph B of the Act of 1920, (See Georgia Laws 1920, page 121), is:
"The Commissioner shall exercise jurisdiction of each person, firm or corporation acting as a private employment agent, intelligence bureau, or employment agency, hereafter referred to as an agency."-
One of the purposes of the Act was to amend the amendment to the Act creating this Department, by striking out the words "for which pay is exacted or received," found in the fourth line of Paragraph B of the Amendment of 1917, (See Georgia Laws 1917, page 90).
The purpose of the Act of 1920 was to place every employment agency, where the same operates as a free service, or exacts, or receives pay for its services, under the jurisdiction of your Department.
In my opinion, the law applies to all employment agencies operating in this State, and requires them to obtain license from your Department, and to give Bond.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
CONTINGENT FUND OF COMMERCE & LABOR DEPARTMENT CAN BE USED TO PAY SPECIAL AGENTS.
January 17, 1923.
Hon. W. E. Christie, Assistant Commissioner, State Capitol.
Dear Sir :-In response to your letter of this date, wherein you ask:
"Please advise me at your early convenience if the contingent fund provided for this Department can be used t(}
264

employ any special agents and pay exepenses of same in capturing and prosecuting emigrant agents who are now taking labor from Georgia?"

The law provides that the Commission "shall investigate

the cause of the existing labor shortage and immigration

of labor X

X

X

X

X

X

X

X

X,

if any immigrant agent is found violating the law, it shall be

the duty of the Commission to have such person presented

to the proper authorities for prosecution," etc.

Inasmuch as the Act, with the .amendments thereto cre-

ating the Department of Commerce and Labor in this State

contemplates the protection of the citizens of the State of

Georgia from the illegal efforts to entice labor from the

bounds of this State, and which lo'ss of labor inures to the

great disadvantage of our agricultural interests, and the

owners of farm lands, because the farm lands are worthless

without labor to cultivate same; following the spirit of the

Act, you would not be authorized to construe its effect oth-

erwise than that it authorizes the expenditure of the neces-

sary amount of money by the Commission, in order to pre-

vent the agitation of the labor of the State and the entice-

ments and schemes by which emigrant agents persuade

labor in the State of Georgia to migrate to other portions

of the country.

It is my opinion that the contingent fund provided for

your Department may be legally used, and that you may

employ special agents, and pay the expenses of same, in ap-

prehending and prosecuting immigrant agents who are un-

lawfully taking labor out of the State of Georgia.

Respectfully submitted,

GEO. M. NAPIER,

Attorney-General.

265

SCHOOL BOOKS. PRICE LEGEND MAY BE PRINTED ON EITHER INSIDE OR OUTSIDE OF COVERS OF.
October 19, 1922.
The Honorable State Board of Education, State Capitol.
Gentlemen :-I have for consideration the question verbally propounded to me by His Excellency, Governor Hardwick, Chairman of your Board, based upon the letter of D. C. Heath & Company, Ginn & Company, and American Book Company, wherein they submit that publishers should be entitled to print the legend referring to the price of their books on the inside rather than on the outside of the back cover of the respective books printed by them and supplied to the State of Georgia.
Two sections in the School Code refer to this question. These are sections 31, and 34.
In my opinion, inasmuch as the complete reference to the legend to be printed is stated in section 34, that is the controlling section. This states that the legend referred to ,shall be printed "on the cover of each book."
It is my opinion further that it will be a substantial compliance with the statute if the legend and prices are printed on either cover of the book, and either inside or outside of either cover.
The ordinary understanding of the word "back" of a hook, as I understand it, means simply the cover of the book.
As above stated, it seems to me to make no difference whatever, if the printing referred to is placed on the inside of the back cover of the book supplied under contract to our State.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
266

DEALERS IN SECURITIES OF CLASS "C" REQUIRED TO OBTAIN LICENSE.
October 30, 1922.
Hon. T. B. Conner, Chief Examiner, Georgia Securities Commission, State Capitol. Atlanta, Georgia. Dear Sir :-Replying to your recent favor wherein you
submit for my consideration your letter of Messrs. J. H. Hillsman & Company, of special reference to the meaning of Section 35a of the Georgia Securities Law as amended by Act approved August 21, 1922, I beg to say:
This section reads as follows:
"Section 35a. Any dealer in securities or issuer of securities in Class 'C,' as defined in this Act, his agent, broker, solicitor, officer, director, or other person who shall sell or offer securities for sale without first having obtained a license so to do shall be guilty of a misdemeanor and on conviction therefor shall be punished as prescribed in Section 1065 of the Penal Code of 1910."
E1vidently the meaning would have been slightly clearer if there had been a comma after the word "securities," where it appears for the first time in the first line of this section. In other words if this line had read: "Any dealer in securities, or issuer of securities in Class 'C'," etc., there could have been no possible misunderstanding as to the meaning of this section.
But the general law provides that you interpret legislation when the meaning is perfectly clear and the intention of the legislature is obvious without technical regard to punctuation. Measured by this test, it is manifest that it was a legislative intention to require of every dealer in securities that license be procured before the selling or offering securities for sale.
- My construction of this statute is therefore: 267

That any dealer in securities, as well as any issuer of securities in Class "C," shall obtain a license.
On Page 5 of the amended Act, the requirements of securities in Class "C" are fully set out, but this refers to the securities and not to the issuers.
Taking the whole Act in consideration, I repeat: it is perfectly clear that the General Assembly intended to require the obtaining of a license by every dealer in securities, and by all persons or corporations issuing securities in Class "C."
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
LAW PROHIBITS THE DEALING IN FUTURES OR MARGINS.
April 10, 1923. Hon. S. G. McLendon,
Secretary of State, State Capitol.
My Dear Sir :-Some days since the Securities Commission directed that I institute proceedings against the brokerage firm of Doremus, Daniel & C()., for its failure to take out license to do business in this State.
This firm applied for license. The Commission declined to issue same on the ground that it maintained in its place of business a blackboard on which are posted from time to time prices of commodities handled by this firm f()r its customers.
Section 4257, of our Civil Code makes it unlawful for any person, firm or corporation in this State to engage in the business commonly called "dealers in futures or margins."
Section 4263 of the Civil Code is as follows:
"Proof that any person, association of persons, or corp~
268

ration, either as principal or agent has established an of. fice or place where are posted or published from informa-
tion received the fluctuating prices of cotton, grain, provtsions, stocks or bonds, or other commodity or thing of value, or either of them, shall constitute prima facie evidence of guilt of the offense or offenses prohibited in section 4257."
Section 403, of the Penal Code is as follows:
"Whoever shall, violate sections 4257, or 4259 of the Civil Code, relating to dealing in futures, shall be guilty of a misdemeanor."
The commission declined to issue license, because with the prima facie evidence of a violation of the law, it was concluded that the evidence of good moral character did not meet the requirements of the law. After the Commission declined to grant the license applied for, Doremus, Daniel & Company, through their Attorneys, Messrs. Little, Powell, Smith & Goldstein, on March 20, 1923, withdrew their application for license on the ground that they "deal only in Class 'A' securities and, therefore, do not come under the purview of the Act." On March 26th, however, in a letter from Mr. Marion Smith. of that firm, it is stated that:
"While we feel obliged to advise our client that under our view of the correct construction of the Georgia statutes, a dealer in Class A securities alone is not required to take a license, nevertheless, our client would like to conform to the views of the Commission in this respect and to avoid a controversy with them as to the necessity for obtaining a license. With that end in view the Company is willing to pay the requisite registration and license fees and furnish the requisite information to the Commission, and to conduct its business under a license if the Commission wishes it done, reserving of course its right to contend that the law does not require it to have a license _to conduct its business, if it should, unfortunately, fail to reach an agreement with the Commission about how this business should be conducted."
It seems that having submitted to the jurisdiction of the Commission they would be estopped from questioning the Commission's authority to require a license. The Act
269

creating the securities Commission was amended in 1922
(See Georgia Laws 1922 page 156) the Act is "to provide ;for the license of all dealers, other than the issuer of such
I
securities and of their agents."
The amending Act, at page 162, inserts a new section, numbered 14 (a), as follows:

"Every dealer not the issuer engaged in the business of

buying and selling securities as defined in section 5 of this

Act, whether as owner, underwriter or broker, and every

dealer in securities based upon real estate mortgages shall

file with the commission statements and documents as fol-

lows:

"(1). Giving address of applicant, principal office and

branch office in Georgia, if any.

"(2). If applicant is a corporation, names and addresses

of officers and directors, and a certified copy of articles of

incorporation and by-laws; if a co-partnership, names and

addresses of active partners.

"(3). Detailed account of the character of securities

dealt in by the applicant with estimated proportion of the

whole falling within classes 'A,' 'B,' 'C,' and 'D.'

"(4). If applicant is a subsidiary of or connected with

other corporation, firm or business, a detailed showing of

the relationship or connection with such corporation, firm

or business.

"(5). Three references, one of which shall be a bank

with which applicant has an account and such other data

as applicant may deem necessary to a complete showing

as .to his good character, business qualifications and claim

to public confidence.''

"Such statement shall be accompanied by a filing- fee of

five dollars, and shall be verified on oath of applicant, if

an individual; or bv two of the partners, if a partnership;

or by two of the officers, if the company or unincorporated

association.''

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

The Commission has interpreted this section to mean what it says: "Any dealer in securities." Evidently it was the legislative intent to bring every dealer in securities within the purview of the law. The Caption said: "To provide for the license of all dealers."
Section 146 of the amending Act, hereinbefore referred to, provides that:

"If the Commission be satisfied of the good repute in business of such applicant," etc.,
270

it shall registe.r the applicant as a licensed dealer or brok-
er.
The matter before the Commission is whether it can
afford to grant license to a firm which prima facie is vio-
lating the statute, by maintaining a blackboard in its place
of business, on which are listed the fluctuating prices of the
commodities sold in the establishment.
In the well known case of Anderson vs. Staie, reported in
the Second Georgia Appeals, page 1 to 29, Judge Arthur G.
Powell, then one of the Judges of the court, in a well con-
sidered and very strong opinion, held that although repre-
senting parties outside the State of Georgia, the defendants
in the court below were guilty of keeping a gaming house.
Judge Powell said:
"The point is also made that this charge is entirely unjustified by the evi<:lence; and it is contended that the evidence shows, without conflict, that Anderson was a broker, pure and simple, who acted only for parties in the State of Georgia, upon their employment, as their agent, for a commission, paid by them; that he dealth only with parties outside the State in executing orders for future delivery; and that in all cases the parties outside of the State and C. B. Anderson contemplated actual delivery. A very similar contention was disposed of in Jones vs. State, supra. As was said there: 'When a man desired to make a bet, he filled out an application blank to be telegraphed to Roots in New Orleans, and at the same time handed in the amount of money he wished to risk on the horse selected. This money was received by Jones, or one of his agents. So far as appears from the record, the applicant never received notice, before the race was run, as to whether his bet was accepted or rejected. After the race was over, the result of the race was announced, and another agent of Jones, in the same house, paid the winnings to those who had won. Where the bet was lost, the money which had accompanied the application was deposited by Jones to the credit of Roots. Under this State of facts we think the money was hazarded in the house in question. The bettor deposited it there, and lost it if he failed to win, or regained it if he did win. The whole transaction as to the money took place in this house. This was the very object for which the house was kept. It was of itself an invitation to the people to go to that place and make their offers to bet, depositing their money with the proprietor of the house. While there is no law in this State to punish the bettors, there is a law for the punishment of the proprietor of such a house in which people can
271

meet daily to bet on horse races and hazard their money

thereon.

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X."

"Having held that one who keeps an office for the

purpose of affording an opportunity to persons to buy and

sell futures on margins can be convicted of keeping a gam-

ing-house, irrespective of whether the contracts are tele-

graphed out of the State or not, we have no difficulty illl

sustaining the conviction. It is not necessary that we

should pass upon the question whether it is essential that

the wagering intent-the intent to speculate, without bona

fide contemplation of actual delivery-should be present in

the minds of both the contracting parties before the trans-

action is unlawful; for in every trade which took place

through the defendant's office, so far as the evidence dis-

closes, and, therefore, so far as the legality of thi:, convic-

tion is concerned, it is conclusively shown that no actual

deliveries were had, and that no such intention bona fide

existed in the minds of either party. When one of the de-

fendant's customers lost, the other party to the contract did

not require delivery. He took the money deposited with

the defendant. When the customer won, this undisclosed

counter party did not tender delivery; but Anderson at once

paid over to the customer the amount of his winnings. In

such a course of dealings the inference is that both parties

acted upon the contract as a purely wagering transaction,

and the defendant was the mere go-between, the mutual

agent of both parties.

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X."

"These outlawed occupations often attempt to conceal

their true inwardness by devious ways and indirect deal-

ings; but the law looks only to the real substance of the

transaction. Think of the shrewd device by which on Jan-

uary 1, 1907, when the Boykin Act went into effect, the door

between the two rooms formerly used en suite by the de-

fendant was closed and nailed up, and the room in which

continued those acts denounced by the Statute as evidence

of guilt, was transfrred to the apparently complete cus-

tody of the Atlanta Commercial Exchange, an organiza-

tion containing in its membership several excellent gentle-

men who needed market quotations for absolutely legiti-

mate purposes, as well as several others who had no such

legitimate uses for them! e. g. telephone employees who

bought and sold cotton. But who paid for the maintenance

of this room where the fluctuating market was represented

on the blackboard? Will it be contended that the office

rent, the wages of the employees, and the annual rental, of

approximately $12,500, for the leased wire to Cincinnati,

were paid out of the modest sum of one dollar per month

contributed by each of the 100 members of this exchange?

Is there not some significance in the fact that a telegraph

instrument in the defendant's office ticked simultaneously

272

with the other on the same wire in the quotation room, and that the Odell Stock & Grain Company paid the drafts for the rent of both the rooms; that the Odell Company paid t.he rent though the lease stood in the name of Campbell, and that to Campbell the defendant's customers telegraphed; and that from Campbell came the statements in return, and that this telegraph wire had one terminus in Odell's office in Cincinnati, and the other in this quotation room, touching the defendant'Et office en passant? Such a tangled web to be so innocent! Perhaps the jury may have conceived the idea that the defendant and Campbell were merely the Odell Company's agents; that the same Odell Company was the undisclosed principal, whose losseR the defendant paid, whose winnings he collected. If they did, we shall not say that they have thereby outraged logic."
The Commission will have before it the affidavits of Mr.
Frank Doremus and Mr. D. J. O'Connor, Jr. I would sug":
gest that after the Commission shall have further consid-
ered the matter, at its regular meeting Monday next, it
will be my duty to act upon its instructions as to instituting legal proceedings against the firm in question.
Respectfully submitted,
GEO. M. NAPIER, Attorney-General.
Copy to Honorable Marion Smith, CjO Messrs. Little, Powell, Smith & Golstein, Atlanta, Georgia.

INDEX

A.

ADMINISTRATORQuestion whether or not, can be forced to pay inheritance tax 174

AGENTSEmployment agents required to obtain license ------------------------ 263

AUTOMOBILELicense tags of other states, when legal in Georgia________________ 190 Re-issue of stolen tags ----------------------------------------- ___ 186
Person under sixteen years of age not authorized to drive unless having had experience, etc. ------------------- 166

AUTOMICAL BOARD-

Authorized to dispose of corpses

191

ANATOMICAL SPECIMENSDisposition of -------------------- --------------------- --------- 198

ATTORNEYMay be paid on recovery of taxes on Rule, out of fund recovered ------------------------------------------------------- ------------ 103

APPOINTMENT OF ATTORNEY MEMBERBoard of Public Accountants, should have been for three years ---------------------------------- ---------------------- ______________ _ 118

APPROPRIATION FOR TRAINING SCHOOL FOR MENTAL DE-

FECTIVES-

Bill invalid

124

B.
BANKSNot regularly chartered not to be supervised by State Banking Department ------------------------------------------------- 33 Claims due State include interest ---------------- ________________ . 32 Continuing in business after expiration of charter may be taken in charge for liquidation by State Banking Department ----------------------- ---------- ----------------- 39
274

Defunct, priority given counties having deposit in ________________ 54

Georgia Securities Law applies to -------------------------------------------- 244 Highway Board has power to arrange overdrafts at____________ 170

Not authorized to sell securities without license, except when

converting security deposited or hypothecated ---------------- 168 State Highway Department may arrange to overdraw from 228

Private accounts of depositors not subject to income tax

agent's inspection -------------------------------------------------------------------- 251

Superintendent of, authorized to bring suit -------------------------------- 251

Revenue Agents not allowed to demand information re-

garding customers accounts in ____ ----------------------

255

BANKING DEPARTMENT-

Makes report to Budget Commission

53

BOARD OF EDUCATIONTaylor County, Term of office -----------------------------'---------------------- 204 County has final say in electing teachers --------------------------- 242 Authorized to employ attorney and pay for his services out of school funds ------------------- ---------------------------------------------------- 194

BOARD OF ENTOMOLOGY-

Authorized to employ chemist to make anlysis of calcium

arsenate ------------------------------

192

Has full power to enact rules

253

BOOKS-

Whether or not price of school books can be printed on either

side of covers ....

.. -------------------------------------------- 266

BONDTwo-thirds of the voters of a county must vote in favor of 232 Sherwin-Williams. Company required to give ---------------------------- 157 State Entomologist required to make ---------------------------------------- 251 Required only of Chairman and Superintendent Georgia Training School for boys ------------------------------------------------------ 100

BOUNDARY LINE-

Between Georgia and Tennessee

225

BRIDGESCost of, between counties to be divided in proportion to the taxable value -------------------------------------------------------------------------- 235

BULLETINSMay be published_ by State Highway Board ---------------------------- 79

275

BUDGET COMMISSIONDepartments receiving appropriations must make reports to 189 Banking Department should make report to ---------------------------- 53
,BUILDING AND LOAN ASSOCIATIONSUnder supervision of Georgia Securities Commission ------------ 187

c.

CONSTITUTIONAL LAWIs State law constitutional which revokes license of Foreign Corporations ---------------------------------------------------------------------- 11

CHIEF JUDGE MUNICIPAL COURT OF ATLANTAGovernor authorized to appoint ------------------------------------------------- 89

CLEMENCYDeduction of good time from an indeterminate minimum sentence ------------------------------------------------------------------------------------ 217

COSTS-

In prosecuting escapes, how paid ----------------------

107

COURTS-

Justice Courts jurisdiction of .............. -----------------

62

Justice Courts are not courts of record ---------------

52

CORPORATIONS-

Is State law unconstitutional which revokes license of

11

COMMISSIONER OF HEALTHState Board of Health has no authority to create office of 248

CONTINGENT FUNDOf Department of Commerce and Labor can be used to pay special agents --------------------------------------------------------------- 264

CONTINGENT FEE BASISAttorney may be appointed in connection with Trust under will of John W. Hunt ------------------------ 105
CORPSESTo be disposed of at public expense, how and when..........,..... 191

CLERKS SUPERIOR COURTSFees of, how fixed by law ----------------------------- ____________ 102

CONVICTSFlogging of, spirit of constitution against ----------------------- 154

276

CONTRACT-
Portland Cement Company required to furnish cement under contract ------------------------------------------------------- 230
CONTRACT OF SHERWIN-WILLIAMS COMPANYSuits for violation of should be brought by individuals ........ 96
CEMENTPortland Cement Company required to furnish under contract -------------------- 230
CALCIUM ARSENATESuits for violatiOn of contract of Sherwin-Williams Company to furnish, should be brought by individuals ........ 96
COMMERCE AND LABORContingent fund of, may be used to pay special agents ........ 264
CHILDBirth of shall be registered ...................................................... 262 Institutions for placement of, must be licensed ........................ 49
CALCIUM ARSENATEBoard of Entomology authorized to employ chemist to make analysis of ------------ 192
CAR EQUIPMENT COMPANYDoubtful if Gulf Refining Company is ........................................ 24
COUNTIESCost of bridges between to be divided in proportion to the taxable value -------------- 235 Two-thirds of the voters must vote in favor of bonds 232 Commissioner of, not qualified after removal from special district ------------------------------------------- 73 Money received from sale of forest lands in .......................... 16 Power of Governor as to making proclamation .................... 69 County Commissioner of Health not required to engage in medical practice for the wards of the county ................ 243 Member of bond commission vacated when member moves 73 Board of Education has final say in electing teachers ............ 242 Board of Education, member of may serve as Justice of the Peace at same time ............................................................. 101 Given priority over ordinary depositors in defunct bank ..... 54 Election for bonds, requisite majority .................................... 46 Almshouses, in what counties located ........................................ 51 Board of Health, -expenses of ---------- ....................... 214 Script as legal tender for debts due counties ........................ 213 Commissioners are county officers ............................................ 222 Commissioners authorized to decide whether office abandoned
277

by one County bears expense of own health enterprises 136

Demonstration Agents, salaries of, how paid ------------------------ 195 Green Sounty Commissioners, method of filling vacancies
in Board ------------------------------------------------------------------------------------ 86
GreenCounty Commissioners acts are legal, though holding over ------------------------------------------------------------ 86
Commissioners of county elected to represent a particular district of the county, not qualified to represent any other -------------------------------------------------------------------- 77
Commissioners of Richmond County, members of authorized to decide when office has been abandoned by one ____________ 91

CONFEDERATE SOLDIERS HOMENumber of Trustees -----------------------------------------------------------------'------ 115
COMMISSIONER OF AGRICULTUREEmpowered to destroy fertilizer tags ------------------------------------------ 36
Empowered to send representatives to other states to purchase nitrate of .soda -------------------------------------------------------------- 34
May modify rules regarding tick eradication ---------------------------- 30
COALRevolving fund to provide --------------------------------------------------------- 59
CONDUCT UNBECOMING UPRIGHT MAGISTRATEIndictment for necessary before removal of Justice of Peace 92

CROSSINGS OVER HIGHWAYS-

Railroads required to maintain suitable

127

D.

DEPARTMENT OF STATE GOVERNMENTMust make reports to Budget Commission if in receipt of appropriations ---------------- --------------------------------------------------------- 189

DEPOSITORIES, STATENot more than one in towns of less than 6,500 population 19

DUAL AGENCYlaw opposed to school trustees cannot contract with themselves ------------------------------------------------------,---------------------------------- 83
DUPREE, FRANKReward for arrest of, Division of, to be determined by Courts of Fulton County ------------------------------------------------------------------ 116
278

E.

EDUCATIONCounty Board of cannot levy taxes for the construction of school houses ........................................................................ 175

ELECTIONSAct of 1921 does not make any change in method of returns 258 Bond elections, requisite majority for .................................... 46 Justice of the Peace election, Ordinary calls in absence of another Justice in District .................................................... 117 Expenses of, when statements are to be filed ........................ 58 For Governor, not necessary when resigning less than six month prior to regular election ............................................ 63 Governor authorized to furnish Ordinaries with blanks, but not required to give names of candidates on tickets ........ 153

ENJOIN SALE OF RAILROADToo late too, after sale ordered by court ................................ 114

ELLIS HEALTH LAWExpense of enforcing ................................................................... 177

ENTOMOLOGIST-

Required to make bond

251

Must be a practical one

247

ESCAPECosts in prosecution for, how paid ............................................ 107

Expenses for trial of

--------- 159

Cost of trial payable by state ----- .. .................... 122

EXPENSES INCURRED BY MEMBERS PUBLIC SERVICE COMMISSIONResolution of General Assembly necessary to reimburse.... 80

F.

FEES OF CLERKS SUPERIOR COURTHow fixed by law ......................................................................... 102

FEESFor administration of oath by Ordinaries to members of Board of Education -------- 246

FEMALES-

How relieved of poll tax

56

279

FISHING-

Inside and outside salt water, regulated

220

FERTILIZER TAGSDestruction of by Commissioner of Agriculture ------------------------ 36

FRUIT CROPMay be advertised by motion pictures ---------------------------------------- 26

FUELS OILSTaxes to be paid by Refiners ____ ------------------------------------------------- 140

FUTURES-

Law prohibits dealing in

268

G.

GENERAL ASSEMBLYMember of ineligible to appointment on State Board of Phar-
macy ------------------------------------------------------------------------------------------ 66 Member of may accept another office before, not after, qual-
ification __________________________________________ ---- _____ __ ___ ____ ___ _____ __ ____ __ ____ ___ 123

GEORGIA REPORTSPrinting of, payable out of any funds in the Treasury ____________ 112

GEORGIA SECURITIES COMMISSION-

Dealers in class "C" required to obtain license ------------------------ 267

Banks selling securities, subject to supervision of, applies

to banks ----------------------------------------------------------------------------

244

GEORGIA TRAINING SCHOOL FOR BOYSBond to be given by Chairman of Board and Superintendent only _________ ---------------------------------------------------------------------------------- 100

GOVERNORAuthorized to appoint trustees of Agricultural Schools from new Counties ----------------------------------- ---------------------------------------- 120 Authorized to appoint Chief Judge Atlanta Municipal
Court ----------------------------------------------'-------------------------------------------- 223 Authorized to appoint when vacancy occurs in office of State
School Commissioner ------------------------------------------------------------ 151 Has right to disapprove rules for management of convicts
adopted by Prison Commission -------------------------------------------- 147 May appoint successor to bond commissioner of Elbert
County ---------------------------------------------------------------------------------------- 73 Power of as to making proclamation regarding Peach County 69

280

Resigning less than six months prior to regular election, not necessary for special election .................................... 63

GULF REFINING COMPANYDoubtful if constitutes car equipment company ........................ 24

GRAND OPERA-

Tax on

20

H.
HIGHWAY BOARDAuthorized to make temporary loan in bank ............................ 145 Chairman of, authorized to have office in State Capitol ........ 172 May maintain offices at state capitol ........................................ 134
May publish bulletins ---------- 79 Responsible for actual damages resulting from change of
grade, etc. ---------------------------- 128 Salary of Chairman ------------------------------------------------------------ 27 Should compensate for right of way, taken -------------------------- 146 Authorized to employ legal assistance -------------------------------------- 138 Has complete authority as to construction and maintenance
of State Aid Roads --------------------------------------------------------- 129 Department is part of State Government --------------------- 231 Liable for damages done persons --------------------------- 229 May arrange to overdraw from banks ------------------------------------- 228 Liable for value of horse injured while crossing bridge ________ 144
Maintenance of bridges by ----------------------------------------------------------- 178 May not use funds allotted to one county in another coun-
ty, except under agreement ---------------------------------------------- 132 Railroads required to maintain suitable crossings over High-
ways . ----------------------------------------------------------------------------------------- 127 Re-location of road includes re-survey ------------------------------------ ___ 43 Telephone lines may not be constructed upon Highways ____ 45 Bridges, maintenance of by ___ -------------------------------------- 176
HUNTINGOwner of Sapelo Island right to restrict ................................ 250

I. INHERITANCE TAX-
Can administrator who has been dismissed be forced to pay? 174
281

INJUNCTIONCan be resorted to, to restrain acts of violence upon officers in tick eradication ------------------------------------------------------------------ 121

INSANECitizens of other states, disposition of ---------------------------------------- 60

INSURANCE COMPANIESAct to provide additional grounds for revoking license oL.. 13
Agents of, must pay tax as such ----------------------------------------------- 179

INSURANCETaxes on agents of each member of firm ------------------------------ 9 Mortgages not authorized investment for insurance companies -------------------------- ----------------------------------------------------------- 7

INVESTMENTS-

Mortgages on real estate not authorized for insurance Com-

panies

7

J.

JUDGE SUPERIOR COURTAtlanta Circuit, length of ----------------------------- --------------------------- 61 Unexpired term of -------------------------------------------------------------------------- 165
JUSTICE OF PEACE~ Indictment necessary before removal, etc. ------------------------------- 92 Office of, abandoned, election called by Ordinary, when ____ 117 One person may serve as, and as member County Board of Education -------------------------- --------------------------------------------------- 101 Vacancy in office of, filled by election ---------------------------------- 82
LANDSDistribution of money from sale of .forest lands ____ ------------- 16

LICENSE-

Confederate veterans exempt from --------------------------------------- 252

Dealers in class "C," required to obtain ------------------------------------ 267

Act to provide additional grounds for revoking .. --------------------- 13

Is state law unconstitutional which revokes? ------------------------ 11

Law requires all employment agents to obtain _____________

263

LIEN-

On real estate means a first mortgage ----------------------------------- ____ 7

Fi. Fas. are the evidence of outstanding _____________________

14

282

LOBBYISTSRegistration of ................................................................................ 184
LOCAL SCHOOL SYSTEMProperty within, excepted from tax ............................................ 245

M.

MARGINSLaw prohibits dealing in ................................................................ 268

MILITARY DEPARTMENTExpenses of for riot and special duty, payable out of funds for maintenance ------ 98

MONEY-

Received for forest from government, distribution of

16

MORTGAGELien on real estate is _______ ---------------- ------- 7

MOTOR VEHICLES-

Tags on, owned by citizens of another state, good in Georgia

30 days -------- 131

Traction engine attached to becomes

260

N.
NITRATE OF SODACommissioner of Agriculture empowered to send representative to purchase ----------- 34
NOTICE OF LOCAL ACTFact of publication of notice to be ascertained by Governor and General Assembly-No review by courts .................. 10.6
NOTARY PUBLICEx-Off. J. P. Not displaced for removal from district or county until fact of removal judicially determined............ 94

0.
OFFENSEFlogging of convicts not, though violating spirit of constitution .......................................................................................... 154
OILSInspection of, includes Benzines, Naphthas, etc..................... 35
283

OPERA$2,500.00 tax on, annually ............................................................ 20
ORDINARIESFees for administration of oath to members of Board of Education .................................................................................. 246 Governor authorized to furnish blanks to ................................ 153

P.

PENSION COMMISSIONERTerm of runs concurrently with that of Governor and State House officials ........................................................................ 162

PENSION ROLLPlacing name of C. M. Ellison on .............................................. 200

PENSIONSEligibility of persons owning more than $1,500.00..... ............ 211

PHARMACYState Board of, member of General Assembly ineligible ........ 66

PICTURESMotion, may be employed to publish data regarding .fruit crop ............................................................................................ 26

POLL TAXFemales, how relieved of ................................................................ 56

PRINTING ANNUAL REPORTSAct creating Department of Public Printing contemplatesall annual reports to be handled .......................................... 142

PRINTING OF GEORGIA REPORTSPayable out of any funds in treasury ........................................ 112

PRISON COMMISSIONAuthorized to employ inspectors .................................................. 215

Rules for management of convicts, subject to disapproval of Governor .............................................................................. 147

Vacancy in office of, appointee fills out balance of unexpired term .............................................................................. 111

PROPERTYSold for taxes, when ...................................................................... 14

PROSECUTION OF MANN AND WILL CARTER-

Attorney-General directed by Governor to assist in .......

227

284

PUBLIC SCHOOLSAge limit for compulsory attendance ........................................ 210

PUBLIC SERVICE COMMISSIONMembers of having incurred expense, resolution of General Assembly necessary to reimburse .................................... 80

PUBLIC WELFAREChild placement law requires institutions to be licensed.......... 49

PUBLICATION OF NOTICE OF LOCAL LEGISLATION-

Not a question for the courts ..

106

R.

REGISTRARS OF VITAL STATISTICSCriminally responsible for failure to furnish information........ 195

REFINERS OF FUEL OILSMust pay tax - 140

REMOVAL FROM DISTRICT OR COUNTYFact of must be judicially determined before N. P. Ex. Off. J. P. can be displaced .......................................... ................. 94

RETURNS-

Act of 1921 does not make any change in method of .....

258

REVENUE AGENTSNot allowed to demand information regarding customers' accounts in banks - 255

REWARDFor arrest of Frank Dupree, division of to be determined by courts ........................................,............................................,... 116

RIOT AND SPECIAL DUTYExpenses payable out of funds for maintenance of Military Dept.............................:............................................................. 98

ROADSRe-location, complete change not favored ................................ 169 Re-location of includes re-survey ................................................ 43 Telephone lines may not be constructed upon ........................ 45

s.
SALARIESCounty Demonstration Agents, how paid .................................. 195
285

SALE OF RAILROAD-

Too late to enjoin after order of court ---------------------------------

114

SAPELO ISLANDOwner of, has right to restrict hunting and fishing -------------- 250

SECURITIES-

Dealers in class "C" required to obtain license

267

SCHOOL-

Price of books may be printed on ----------------------------------------- 266

Books, Fall adoption preferable to Spring adoption ------------- 156

Bonds of, rrot issued to pay maintenance debts ______ _

133

District, Tifton, Georgia, limitation of rates of taxation _

238

Mental defectives, bill for appropriation, invalid ---------------- 124

Houses, cannot be built by taxation levied by County Board

of Education ----------------------------- ------------------------------------- --- 175

Independent, system, what constitutes ------------------------------- 240

Tax, Board of Education without authority to levy tax rates

of 12 mills -------------------------------------------------------------------------- 201

Tax, Receiver entitled to commission on --------------------------------- 180

Tax, levy for Rowena District, legality of

208

S.ECURITIES-

Bank not authorized to sell without license, except certaih

kinds ______ --------------------------------------- ------------------------------------ 168

Commission, has supervision of Building and Loan Associa-

tions ----------------------------------------------------

___________________

187

SHERWIN-WILLIAMS-Company-

Bond required of ____

--------------- -------------------------------------------- 157

STATE AID ROAD-

Complete change of location not favored

169

.STATE BEARS NO EXPENSE-

State Board of Barber Examiners

119

.STATE BOARD OF EDUCATIONAdvisory and appellate ----------------------- --------------------------------------- 249

STATE BOARD OF HEALTHNot authorized to create title of Commissioner of Health______ 248 Not authorized to spend money on County Health --------------- 136

STATE CAPITOLHighway Board may maintain .office at ----------------------------------- 134
286

STATE GOVERNMENT-

Highway Department is part of

231

STATE OF GEORGIAClaims due include interest ___________________ --------------------------------------- 32

STATE SCHOOL COMMISSIONERVacancy in office of, Governor authorized to appoint ____________ 151 Vacancy in office of, appointee fills out unexpired term________ 109

STOCKHOLDERS-

Liable for unsubscribed stock

186

SUITSuperintendent of Banks authorized to bring, when ____________ 251

STATE GOVERNMENTNot liable for injuries sustained by citizen on U. S. property 226

T.

TAX-

Insurance Agents must pay __________ -------------------- _

179

Income Tax Agents not allowed to inspect private accounts

of depositors in banks ______ _-------------------

37

Females; how relieved of Poll -"-- ___________________ _

56

Levy of not authorized to construct almshouse in another

county _________________ _

51

Agents of Insurance Companies liable to pay

9

For building school houses, not leviable by County Board of

Education _______ -------------------------------- ______ ___________

175

Property sold for

14

City of Waycross, payable first of year _______ _

126

Received on Rule against Sheriff, attorney may be paid out

of fund received __

___ __________

103

Receiver of, entitled to commission on school tax

180

TAXATION-

Grand Opera, payable annually

---------------------- 20

Property in Independent Local School System excepted from 245

Limitation of, for School District of Tifton, Georgia

238

TERM OF OPPOINTEE-

To fill unexpired term of Judge Superior Court Atlanta

Circuit _______________________

_________________ _ ____________________ 165

287

TOWNS- Population less than 6,500 not more than one state depository --------------------- 19

TICK ERADICATIONExemption of any particular county not allowed .................... 28 Rules for, may be modified by Commissioner of Agriculture 30

TRUCKTraction engine attached to becomes motor vehicle... ............ 260

TRUSTEES-

School, cannot contract with themselves

83

Number of, for Condeferate Soldiers Home _____ _

115

TRUSTCreated by will of John W. Hunt, attorney may be appointed on contingent fee basis ___________ ---------------------------------- ..... 105

v.

VACANCY IN OFFICE OF JUSTICE OF PEACE-

Filled by election -----------------

82

VACANCYIn office State School Commissioner, Governor authorized to appoint ------------------------ ------------------------------------ ---------------- 151

VETERANS-

Confederate exempt from license fees ____ _

252

Of other states, disposition of ------------------- -------------------------

60

VITAL STATISTICS-

Bureau of, disposition of corpses buried at public expense

191

Disposition of anatomical specimens --------------- ------------------- 198

Inspection of records of ----------------------------------- 199

Local Registrar 1018th District of Union County ------------- 206

Not required to be made public ------------------------ 196 Registrars of, criminally responsible for failure to furnish.... 196

288