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 
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 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 
11 
 
 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: 
24 
 
 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. 
25 
 
 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. 
32 
 
 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. 
33 
 
 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. 
34 
 
 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: 
67 
 
 "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 
69 
 
 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 * * * * * ** 
70 
 
 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. 
71 
 
 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." 
73 
 
 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. 
74 
 
 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." . 
76 
 
 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. 
85 
 
 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- 
87 
 
 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. 
89 
 
 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." 
92 
 
 "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 
93 
 
 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." 
94 
 
 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. 
95 
 
 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. 
97 
 
 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. 
99 
 
 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 
100 
 
 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- 
101 
 
 .\ 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." 
102 
 
 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, 
103 
 
 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 
104 
 
 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- 
105 
 
 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." 
106 
 
 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: 
107 
 
 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 
108 
 
 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- 
109 
 
 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 
110 
 
 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." 
111 
 
 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 
112 
 
 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. 
 
]13 
 
 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. 
114 
 
 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" 
115 
 
 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. 
116 
 
 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 
117 
 
 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 corre