Opinions of the Attorney General 1933-1934

OPINIONS OF THE ATTORNEY GENERAL
1933-1934
M. ]. YEOMANS
Attorney General
1939 THE STEIN PRINTING CO.
Atlanta, Ga.

IN MEMORIAM
ut1~~~,~5 :J~srn ~cc-1~~:.

On April 10, 1939, as this volume of opinions was just off the press, Judge
M. J. Yeomans passed on to his eternal reward.

School Leader and

teacher, lawyer, humanitarian, he

sleergviesdlaGtoer,orsgoilaicaitnodr1

jurist, Attorney her people ably,

General( State devoted y, and

well.

Judge Yeomans was born on March 17, 1866, in Manassas, Tattnall County, Georgia. In 1891 he was graduated from the University of Georgia with an A. B. degree and later took an M. A. degree at Vanderbilt University. For a while he taught school and then took up the practice of law in 1896. He was Solicitor of the City Court of Dawson from December 2, 1898 to December 2, 191 0; was a member of the House of Representatives from Terrell County, 1915-1917; served with distinction as Judge of the Pataula Circuit from June 22, 1923, through January 1, 1931. He was elected Attorney General of Georgia for four consecutive terms and retired on February 2, 1939 to accept the position of Director-Attorney for the State Hospital Authority, in which capacity he was placed in charge of the Four Million Dollar Building Project for the unfortunate insane people of our State and those who were unable to take care of themselves. His life stands out as a monument dedicated to public service of the highest and best type.

On March 16, 1939, the day before his seventy-third birthday, the State Law Department presented to Judge Yeomans a watch and chain as a memoir of our affection for him. In response to that gilt, Judge Yeomans wrote the Law Department a letter which is set out here for the reason that it so well expressed his feelings and philosophy of life.

"I felt very humble yesterday when you presented to me the splendid tangible memento with expressions of your intangible love and affection which is more deeply appreciated.

"I have never felt myself worthy of the trust and confidence my friends have

imposed in me, nor the honors conferred. I have just muddled along through life,

without service

any definite purpose except I could, and to do unto others

to as

live honestly, treat all I would like that they

sfhaoirullyd1

render what do unto me.

There have been times when my conduct and the motives which prompted me have

been misunderstood, and for that reason I have now and then been criticized. The scars thus infli~ted have not been permanent. They have faded. It is not the

wrongs which others do us that hurt and sting through life but the wrongs which we

consciously or unconsciously do to others that sear and burn and leave a lasting

scar on our souls.

"Life has been good to me. Much more so than I have ever deserved. My best possessions have been my friends, and none have been dearer to me than the splendid loyal men who served with me, and the young ladies who were ever thought-
ful, kind and considerate, always ready to work in season and out of season, without
the slightest complaint. Their cooperation has been wonderful. They have been priceless. I love each and every one of them.

"Things which occur in our early life stand out more prominently as we grow older. This is because they were new an unusual. However the things which
occurred while I served as Attorney General occupy an unusual niche in my memory, possibly because they were the most unusual, and as a whole the most pleasant
Incidents of my entire professional life. They were made so in a large part by those of you who so graciously presented to me the tangible memento of your intangible love and affection.

"My whole heart goes out to you and each of you. May God protect, preserve and bless you."

In h!s Passing the State has lost a Faithful servant. I personally have lost a valued fnend. Behind him Judge Yeomans has left a record rich alike in usefulness and h.onor. !-fis life will b!! an inspiration to those who were privileged to be closely associated With him.-Ellu Arnall.

ATTORNEY-GENERAL
1868-1872_____________________________________ I I e n r y P . F a r r e r
1872-1877-------------------------------------~ J. IIarnrnond 1877-1880 ______________________________________Robert ~. Ely 1880-1890_________________________________ Clifford L. Anderson 1890-189L ___________________________________ George ~. Lester 1891-1892 ________________________________________W. A. Little 1892-1902________________________________________ J. ~.'ferrell 1902-1902______________________________________Boykin Wright 1902-1910 _______________________________________JohnC.IIart 1910-1911 _____________________________________IIewlett A. Ilall 1911-1914______________________________________'rhos. S. Felder 1914-1915 _______________________________________WarrenGrice 1915-1920______________________________________ Clifford Walker
1920-1921----------------------------------------R A. I>enny 1921-1932 (~ay 5th) ___ --~-------------------George~. ~apier 1932-1932 (~ay 9-I>ec. 31) ___________________Lawrence S. Camp 1933-1935_____________________________________ -~.J. 1:eornans

REGISTER OF DEPARTMENT OF LAW FOR 1933-1934
M. J. YEOMANS
Attorney General
JoHN T. GoREE Assistant Attorney General
B. D. MuRPHY Assistant Attorney General
DAVE M. PARKER
Assistant Attorney General
B.s. MILLER Assistant Attorney General
J. J. E. ANDERSON Assistant Attorney General
E. J. CLOWER Counsel
DIXIE DRAKE
Chief Clerk
STENOGRAPHERS:
Nell Clark Helen Quin Clyde Wheless Emma Steadman

7
FERTILIZER-Sampling and reporting by inspectors
November 27, 1933 Hon. G. C. Adams Commissioner of Agriculture Dear Mr. Adams:
Yours of the 24 instant received. You desire an opinion relative to the law on sampling and reporting of fertilizer by the official fertilizer inspectors and submit the following state of facts: "Where a fertilizer inspector samples a lot of fertilizer and he finds 20 sacks on hand and samples 20 sacks and the amount of fertilizer purchased this season by this party whose fertilizer is being sampled prior to taking of the samples is 310 sacks," could recovery be made on the entire lot of 310 sacks or would recovery be restricted to 200 sacks or to 20 sacks? Practically this same question was involved in the case of Georgia Fertilizer Company v. Walker, 45 Ga. App. 68. The facts of which, briefly stated, are as follows: Mr. Walker purchased 250 sacks of fertilizer. At the time the inspection was made of the lot of fertilizer purchased by Mr. Walker of a certain brand, only 100 sacks were on hand and visible to the inspector, the other 150 sacks having been distributed in the fields of Mr. Walker. The inspector took samples from 25 sacks. The plaintiff, Mr. Walker, relied mainly upon a certified copy of the analysis by the State Chemist to make out his case. The defendant made numerous objections to the introduction of this certificate and the overruling of these objections. The court directed a verdict after the State Chemist's analysis was introduced into evidence. The Court of Appeals reversed the lower court and held that it was error to direct a verdict upon this state of facts. In the opinion of the court it was pointed out that the State Chemist's analysis was not "official analysis" in that the law with respect to the sampling of fertilizer was not strictly complied with and since all laws imposing penalties are to be most strictly construed recovery would be limited to that amount of the fertilizer inspected which was actually on hand at the time the inspection was made, and as to which the analysis was official. If all 250 sacks had been on hand at the time samples were taken from the 25 sacks, the analysis would have been official as to all 250 sacks. But as only 100 sacks were on hand at the time, this inspection and the State Chemist's. analysis based upon the same, was official only as to 100 sacks. The court gave as its reason for this opinion the following: :If the inspection had been spread to a larger number of sacks m this case, the analysis made might have shown more deficiency. On the other hand, it might have shown a much greater deficiency,
!s so that the plaintiff himself might have been the winner. The
rule equally fair to both parties. The purpose of the law is to obtam a fair sample of the lot or quantity of fertilizer which is made the subject of inspection." Further, in the court's opinion, it was said: "We do not say that it would have been necessary to draw

8
samples from any particular portion of the 250 sacks, if the plaintiff were not relyin~ upon what he declares was an 'official analysis'. If he were seeking to prove his case by sworn testimony as to the correctness of a private analysis, as would seem to be permissible under the decision in Jones v. Cordele Guano Company, 94 Ga. 14, and in the Raines case (Southern Cotton Oil Co. v. Raines, 171 Ga. 154), see headnote 9, instead of relying merely on the certificate, it might, perhaps, be sufficient if samples were drawn from any sufficient proportion of the sacks as would reasonably indicate a fair representation of the entire lot, this question to be determined by the jury under all the facts and circumstances.''
In other words, in the Walker case, if the plaintiff had not relied solely upon the State Chemist's analysis as an official analysis, which it was not as to the 150 sacks, which were not on hand at the time the inspection was made, and had introduced sworn testimony from competent witnesses that an inspection of 25 sacks of 10% of a lot of 250 sacks was "such proportion of the sacks as would reasonably indicate a fair representation of the entire lot," plaintiff could have recovered upon the entire lot of 250 sacks.
Therefore, applying the ruling of the court in the Walker case to the facts given in your letter it is my opinion that where a fertilizer inspector takes samples from 20 sacks of fertilizer and only 20 are on hand at the time of sampling, whereas, the total number of sacks of this brand purchased in this lot was 310 sacks, if the purchaser sought to recover on the basis of the State Chemist's analysis as an official analysis, using this evidence alone, his recovery would be restricted to the number of sacks on hand at the time the inspection was made, to wit, 20 sacks. However, if other sworn testimony from competent witnesses was introduced and it were shown that 20 sacks was a-sufficient proportion of the sacks as would reasonably indicate a fair representation of the entire lot, then he could recover upon 310 sacks. It is doubtful, though, that it would be held that samples taken from 20 sacks of a lot of 310 is of sufficient proportion of the lot as to indicate a fair representation of the entire lot, since the law specifically prescribed that the inspectors shall carefully draw samples as follows:
"In lots of ten packages or less, from each package; in lots of ten to 100 packages, from not less than ten packages; in lots of 100 packages and over, from not less than 10% of the entire lot." It is thus seen that the law itself has prescribed a standard which indicates the proportion of a lot from which samples are to be taken in order to constitute a fair representation of the entire lot and that amount, in the case of lots over 100 packages, is 10%. Therefore, in your case where only 20 sacks were inspected and the total lot purchased was 310, the inspector should have inspected 31 sacks instead of 20. And it is my opinion that recovery would be restricted to 200 sacks. In order for recovery to be had on the 200 sacks, in the event of litigation, it would be necessary to introduce other evidence than that of the certified copy of the State Chemist's analy-

9
sis to show that 20 sacks out of a lot of 200 is such a proportion of the sacks as would reasonably indicate a fair representation of the entire lot.
Trusting this is the information which you desire, I am
STATE CHEMIST-Salary
March 3, 1934 Hon. G. C. Adams Commissioner of Agriculture Dear Mr. Adams:
This will acknowledge your recent inquiry as to whether the law creating the office of State Chemist fixed a minimum salary for this official.
By an act approved February 26, 1877, the Commissioner of Agriculture was given authority to appoint a State Chemist. Relative to the compensation of this official for the duties performed by him, it was provided:
"His salary shall not exceed the sum of $3,000.00 per annum, which shall be full compensation for all duties which are or may be required of him under this chapter, including the rent of laboratory and all apparatus and cost of chemicals." See also Volume 1, Code of 1895, Section 1557 (1553-c). Thus, it will be seen that no minimum salary was fixed by this act and the same has not been subsequently changed as to his annual compensation for the administration of the duties imposed upon him under the Act of 1877. It will be noted that every appropriation bill passed thereafter through the year 1917, made an appropriation for the salary of the State Chemist in the following language:
"For salary of chemist of the Department of Agriculture, the sum of $3,000.00, as provided by section 1557 of the Civil Code of 1895." By an act approved August 17, 1920, (Georgia Laws 1920, page 208) the sale and manufacture of insecticides and fungicides was regulated. Under section 5 of this act, it was made the duty of the
"State Chemist to make the necessary analyses of all samples of calcium arsenate, lead arsenate, and dust mixtures containing sulphur, lead arsenate and lime, and other insecticides and fungicides commonly used on cotton, field crops and fruits, that may be turned over to him by the proper authorities. He shall keep a record of all such analyses and report on the same, as he now does in the case of fertilizer samples analyzed." In 1921, following the passage of this Act, the compensation of the State Chemist was not increased, but the appropriation made ~as in the same language as that used in the Act of 1919, p. 15, section 8 (3), to wit:
"For the salary of the chemist for the Department of Agriculture $3,000.00." However, in 1923, the legislature, besides the appropriation of $3,-

10
000.00 for the salary of a chemist for the Department of Agriculture, made the following appropriation:
"For the maintenance of the office and laboratory of the chemist, oinfc_l_u_d_i_n_g___tw__o___a_ss_i_s_ta_n__t __c_h_e_m__is_t_s__a_t___$_1_,0_0_0___e_a_c_h_, $1t8h,e000s.u0m0.
(Provided, that $2,500.00 of the above sum shall be expended for the purpose of defraying the expenses that may be incident to making the analyses of calcium arsenate and other insecticides.)" Then in 1925 the legislature made the appropriation for the State Chemist for the years 1926 and 1927 as follows:
"For the salary of a chemist for the Department of Agriculture, $4,000.00." Besides this appropriation, the Act of 1925 (Georgia Laws 1925, page 21, section 8, sub-section 2b) contained the same provisions relative to the employment of assistants and the appropriation of $2,500.00 from the amount of $18,000.00 to be expended for the purpose of defraying the expenses incident to making analyses of calcium arsenate and other insecticides. The Act of 1927 (Georgia Laws 1927, page 11, section 2-f) made the appropriation as follows:
"For the salary of the state chemist, to be paid from civil establishment $3,000.00.
"(g) For the salary of the state chemist, to be paid from the insecticides fund as provided in Act of August 18, 1924, $1,000.00." The Act of 1924 as referred to by this Appropriation Act (Georgia Laws 1924, page 9, section 3) was to make a deficiency appropriation to the Department of Agriculture for making analyses and doing laboratory work on calcium arsenate as required by the act approved August 17, 1920. Section 3 provided:
"Be it further enacted by the authority aforesaid that an amount not in excess of $1,000.00 annually of the amount herewith appropriated shall be used to compensate the chief chemist for his services in supervising the work prescribed in an Act approved August 17, 1920, known as the 'Insecticides and Fungicide Act', and this shall be in addition to the salary prescribed for said chemist." Every appropriation bill subsequent to the passage of the Act of 1924 and up until the Act of 1931, included this additional $1,000.00 as compensation for the State Chemist in making analyses under the Insecticide and Fungicide Act. Trusting this is the information desired by you, I am
FLOUR-Branding of low quality
May 1, 1934 Mr. C. Reynolds Clark State Chemist Dear Mr. Clark:
I have yours of May 1st requesting a construction of the law relative to the branding of low quality flour under the Act of 1933 (Georgia Laws 1933, page 283).

11
Section 1 of this Act provides: "Any manufacturer or distributor who shall sell, offer or expose
for sale, any white wheat flour, as defined by the United States Department of Agriculture, containing more than one-half of one per centum ash, exclusive of said chemical ingredients shall print on the face of the packa!ffe in plain black letters not less than one inch in height, the following 'Low Quality Flour'." You ask whether under this statute it would be legal for you to pass flour sacks as conforming with the law when stamped "Low Quality Flour" rather than if the law reads printed in plain black letters. Also whether or not it is a conformity to the letter of the law when the printing is in other than black ink. The verb print has been judicially defined as follows: "To stamp by direct pressure as from the face of types, plates, or blocks covered with ink or pigments or to impress with transferred characters or delineations by the exercise of force as with a press or other mechanical agencies." Acme Coal Co. v. Northrup National Bank of lola, ~3 Wyo. 66. Black's Law Dictionary, 3rd Edition, pages 14-18. It is my opinion that the term "Low Quality Flour" may be stamped upon the sacks, as this, under the definition given above, would be a type of printing. Relative to the second question as to whether other than black ink may be used, it is my opinion that so long as the words "Low Quality Flour" are stamped or printed in conspicuous lettering which is clearly visible and legible to the public, the law is sufficiently complied with, in spirit at least, whether the printing is in black ink or otherwise. The purpose of the law was to require the manufacturer or distributor of the flour to put the public on notice that such flour is of low quality. If a manufacturer or distributor sold the flour in black sacks, black lettering would not show up on the sacks sufficiently to put the public on notice of the quality of the flour. In the administration of this law, I think that you should give the same a common sense interpretation. So long as the type of ink used in staD;J.ping or printing the words on the sack produces an impression which is conspicuous and clearly visible, I would think that the law is sufficiently complied with. It is my opinion that stamping or printing the words "Low Quality Flour" on the face of the sack which contains the label or brand name of the flour would be a sufficient compliance of the law, even though there is writing or printing on both sides of the sack. I am herewith returning the sacks submitted to me and trusting that this is the information desired by you, I am

DRUGGIST IS A PROFESSIONAL MAN-

Dr. W. S. Elkin

November 20, 1933

Chief Drug Inspector Dear Dr. Elkin:

Yours of the 16th instant received.

You request an opinion upon the question of whether a druggist,

1~
who has successfully passed the examination submitted by the Georgia Board of Pharmacy and has been issued a license is a professional man.
In Words and Phrases, First Series, Volume 6, a profession is defined as follows:
"One definition of a profession is an employment especially an employment requiring a learned education, as those of law and physic. Worcest. Diet. tit. 'Profession'. In the Century Dictionary the definition of profession is given, among others, as a vocation in which a professional knowledge of some department of science or learning is used by its practical application to the affairs of others, either in advising, guiding, or teaching them, or in serving their interest or welfare in the practice of an art founded on it. Formerly theology, law, and medicine were specifically known as the professions, but, as the application of science and learning are extended to other departments of affairs, other vocations also receive the name. The word implies professional attainment in special knowledge as distinguished from mere skill; a practical dealing with affairs as distinguished from mere study or investigation; and an application of such knowledge to uses for others as a vocation as distinguished from its pursuits for its own purposes. United States v. Laws, 16 Sup. Ct. 998, 1001, 163 U.S. ~58, 41 L. Ed. 151." It is my opinion, under this definition, that a druggist, who has qualified under the Georgia law and is practicing this calling, is a professional man.

PHARMACY BOARD-Number of times an applicant may take examination

Dr. W. S. Elkin, Jr. Chief Drug Inspector Dear Dr. Elkin:

September ~1, 1933

Your undated letter relative to the change in the Act of 1927, page ~91, Georgia Laws, with special reference to the five-year clause,
has been duly received.

You direct my special attention to Section 14 of the old law, and

ask for an interpretation of the new Section 13 as contained in

Georgia Laws 1933, pages 210-11.



It is my opinion that Section 14 of the Act to establish the Geor-

gia Board of Pharmacy does not limit the number of times an appli-

cant for examination as a registered pharmacist may stand examina-

tion before the Pharmacy Board. The only limitation is that "any

applicant failing to make the required mark is entitled to another

examination without any additional char!}e, provided he takes

the second examination within one (1) year from the first." This

language does not preclude the applicant from other examinations

upon payment of the required fee.

18
It is my interpretation that the Amendment Act, approved March 8th, 1933 as contained in Georgia Laws 1933, Pages ~n0-11, did not otherwise change the Act of 1927. This amendment which struck Section 13 of the original Act and substituted therefor, "a new Section 13", only changed the qualifications for each applicant as to age, experience, education, etc. However, its terms in no wise conflict with or change the effect of Section 14 of the old Act, nor does the new amendment restrict "any applicant" to limited or definite number of times that he may appear before the Board for examination, upon payment of the required fee and compliance with the qualifications and requirements of the new Section 13.
The words "any applicant" would apply to an applicant under the five-year clause just the same as to any other applicant seeking to qualify as a licensed pharmacist under the other provisions of the new Section 13.
Trusting that this answers your question, I am

PHARMACY ACT-Sale of poisons and patent medicines

Dr. W. S. Elkin, Jr. Chief Drug Inspector Dear Dr. Elkin:

July 20, 1983

Your letter of July 18th quoting sections 21 and 22 of the Pharmacy Act and asking whether or not those sections would be violated by the fact that some grocery stores are displaying over their patent medicines, castor oil, turpentine, etc., a sign which reads, "For your medicine cabinet", is acknowledged.

I have looked somewhat into the history of this Pharmacy Act

for the purpose of attempting to ascertain the intent of the Legislature in dealing with this matter.
By the Act of September 29, 1881, the Board of Pharmaceutical Examiners was created and the licensing of druggists provided for.
This Act, together with the amendments thereto, will be found in the Code of 1895, sections 1192 to 1503. By section 1499 in that Code it was provided that no person could engage in compounding or selling of medicine, drugs or poisons without fully complying with the provisions of that Act. Certain exceptions, however, were specified, among which will be found the following:
"Merchants selling family medicines not poison, as prescribed and allowed by the Code of Georgia." A reference to the caption or preamble of the Act of 1881 as origi-

nally passed seems to clearly indicate that the Legislature intended that the law should be enforced rigidly against the sophistication of drugs and handling of curatives by ignorant or unqualified persons. Such was the construction placed upon that Act by the Court of Appeals of Georgia in the case of Lewis v. Brannen, 6 Ga. App. 419. That Court, speaking through Justice Powell, said: (Page 422)
"It is dangerous enough that we must take regular drugs and

14
medicines prescribed by skilled physicians and prepared by licensed druggists; but God save us if the ignorant but pretentious unlicensed compounders and vendors of cure-ails and nostrums are to be turned loose to prey upon our credulity. The pharmaceutic license law was passed for the protection of the public, and will be liberally construed to that end."
In the case above referred to the above quoted exemption, to wit, merchants selling family medicines not poison, as prescribed and allowed by the Code of Georgia, was discussed and the Court said that this exception related only to certain kinds of family medicinesthose prescribed and allowed by the Code of Georgia. The Court said that the particular section of the Code referred to was Section 1409 of the Code of 1873 which was a part of the old "Physicians and Druggists Acts." The Court said:
"It allowed merchants to deal in medicines already prepared, if patented, or, if not patented, are legally warranted by a licensed druggist." The conclusion of the Court in the Lewis case, supra, was to the effect that the above exemption allowed merchants to sell only such non-poisonous already-prepared family medicines as are patented or are warranted by licensed druggists. Quoting again from page 4~~: "He cannot sell all patent medicines; he can sell only those which fall within the class called 'family medicines'. The expression 'family medicines' is synonymous with such expressions as 'domestic remedies', 'household remedies', etc., found in the statutes of other states and common in general parlance. It includes such things as camphor, quinine, paregoric, spirits of turpentine, castor oil, saltpeter, epsom salts, etc." Citing Peters v. Johnson, 50 W. Va. 644, 65~, (41 S. E. 190, 57 L. R. A. 4~8).
In the Code of 1910, Section 17~9, Sub-section 3, the above quoted exemption was repeated as follows:
"Merchants selling family medicines not poison, as prescribed and allowed by the Code of Georgia."
This identical provision appears to have been the law until in 1918, when the General Assembly amended that particular section by adding thereto the following after the word poison:
"Paris green, arsenate of copper, arsenate of lead, or any preparation containing any of these articles, known as insecticides, bugdeaths, fungicides, and similar preparations used for killing such insects as Lincoln bugs, cabbage worms, caterpillars and similar insects; provided, the labels, cartons and packages containing such preparations bear the word 'poison' printed across the face of such in red ink, in type not less than one-half inch in size, and all labels, cartons and packages to show kind and quantity of such poison it contains, with specific directions for its use, and the antidote for each poison they contain, printed on same in letters not less than three-eighths inch in size." (See Acts 1918, page 113.)
This amended provision then appears in Michie's Code of 19~6

15
and continued to be the law on this subject until the Act of the General Assembly of 1927.
The law in its present shape was enacted by the General Assembly in 1927 (Acts 1927, pp. 291-299). Section 18 of that Act under subdivision three of the exemptions is as follows:
"This item shall be construed in the interest of the public health, and shall not be construed to prohibit the sale by merchants of home remedies, not poison, or the sale by merchants or preparations commonly known as patent or proprietary preparations when sold only in the original and unbroken packages, Paris green, arsenate of copper, arsenate of lead, or preparations containing any of these articles used for killing Lincoln-bugs, cabbage-worms, caterpillars, all and similar insects, provided the labels, cartons, and packages containing such preparations have the word 'Poison' printed across the face, and conform to the United States Pure Food and Drug Act, and general merchants other than druggists shall not be required to register under the provisions of this Act." The last quoted provisions constitute the law today dealing with this particular exemption. It is significant that the words "home remedies" are used in this Act. The Legislature is presumed to know that the appellate courts of this State had construed the words "household remedies", "family remedies", and "domestic remedies" to be synonymous and to include such things as camphor, quinine, paregoric, spirits of turpentine, castor oil, saltpeter, epsom salts, etc. Therefore, it is clear from the foregoing provisions that general merchants can sell such home remedies as well as the other preparations provided in that section without the necessity of registering as required by the provisions of the Pharmacy Act. Section 21 quoted in your letter defines the meaning of the terms "drug store", "pharmacy" and "apothecary" to be a place where drugs, medicines and poisons are dispensed, compounded or sold at retail under the supervision of a duly licensed and registered pharmacist. Section 22 quoted in your letter forbids any person to use those words in connection with any place of business unless such place of business is in fact and in truth a drug store or pharmacy as defined in . the Act. It likewise prohibits the use of any combination of any of such titles, or any title or description of like import or any synonyms or other term designated to take the place of such title.
. Under the decision of the Court of Appeals referred to above it. Is clear that this act must be liberally construed in the protection of the public.
~his was the expressed intention of the General Assembly in ena~tmg sub-division three of Section 18 on the exemption above quoted smce this particular exemption begins with the following statement: "This item shall be construed in the interest of the public health."
J~d~e Powell, in the Lewis case, supra, says that when a drug or mediCme, whether patent medicine or not, comes into such general and common use that its effects are well understood by people with-

16
out medical knowledge, and it is not poison, it is called a family medicine. He also says that whether a given drug or medicine is a family medicine is generally a question of fact for the jury.
The grocery stores who display patent medicines or family medicines which they have a right to sell under the law, display the sign "For your medicine cabinet", would not, in my opinion, be violating the spirit and intent of the Act, the history of which is given hereinabove. It would seem that this sign, "For your medicine cabinet", displayed along with their patent medicines, castor oil, turpentine, etc., would refer to the family medicine cabinet in which family remedies might be kept. I do not think that the sign in any way violated the purpose and intent of the law or is calculated to deceive the public. Whatever objectionable features the sign may have could be eliminated and I would suggest that the word "family" be inserted between the words "your" and "medicine". When this was done so that the signs would read "For your family medicine cabinet", then I do not see where there could be any objection raised whatever. I merely offer this as a suggestion.

PHARMACY BOARD-Authority to make regulations

Dr. W. S. Elkin, Jr. Chief Drug Inspector Dear Dr. Elkin:

January 20, 1983

Yours of the 14th inst., would have received a much earlier reply, but for the fact that we have been very much pressed with the multitudinous duties involved in acting as the legal advisor of the General Assembly, the Governor and of State House Officials and, in addition, drawing many bills for the members of the General Assembly.

Your request is whether the State Board of Pharmacy can, under the law, legally adopt and make effective the following: "It is therefore ordered by the power vested in the Board of Pharmacy that the managers of all drug stores using non-registered help in their prescription departments should be given instruction that all compounding and mixing for sale of medicines, drugs and poisons in the absence of a regular licensed druggist who is in actual personal charge of the business shall be discontinued; and he, the licensed druggist not be regularly or alternately absent from the store longer than for a period of one hour at a time without registered relief, and the Chief Drug Inspector is hereby instructed to enforce this order with such discretion as will completely protect the public health."

Clause one of the proposed regulation provides that: "The managers of all drug stores using non-registered help in their prescription departments should be given instructions that all compounding and mixing for sale of medicines, drugs, poisons in the absence of a regular licensed druggist who is in actual personal charge of the business shall be discontinued."

17
This much of the proposed regulation is in accord with section 18 of the Act approved August 20, 1927, which provides that "no person shall engage in the compounding or vending of medicines, drugs, or poisons within the State without full compliance with this Act" with certain stated exceptions. This proposed regulation is no broader than the language of the statute, and simply provides for instructions to druggists that they shall obey the quoted provision of the law.
Of course this can be legally adopted, but it will not add to nor take anything from the law now existing.
The remaining clause of the proposed regulation provides: "and he, the licensed druggist not be regularly or alternately absent from the store longer than for a period of one hour at a time without registered relief, and the Chief Drug Inspector is hereby instructed to enforce this order with such discretion as will completely protect the public health."
This clause of the proposed regulation would require every drug store in the State to employ two registered and licensed druggists. The effect of this regulation upon hundreds of drug stores now in the State that are striving to keep their doors open could be easily imagined.
The statute does not make such requirement, and such requirement does not seem to be within the intent and purpose of the Act. Section 18, quoted above, simply prohibits any person not registered and licensed, with the exceptions stated, from engaging in the compounding or vending of medicines, drugs, or poisons. Section 12 of the Act prohibits any proprietor, owner or manager of any drug store from allowing any person in his employ who is not a registered pharmacist to compound or mix any drugs for sale, except the employee do so under the immediate supervision of a registered pharmacist. It, therefore, follows that during the absence of a regular licensed pharmacist from the place of business, none of the acts prohibited by the statute can be done. In his presence and immediate supervision, they can be done, or they can be done by him.
There is nothing in the provision of Section 21 of the Act defining a "drug-store", "pharmacy" or "apothecary" which would require the presence, at all times, of a registered licensed pharmacist. A "drug-store", "pharmacy", or "apothecary" is defined as a place "where drugs, medicines, or poisons are dispensed, compounded, or sold at retail under the direction and direct supervision of a person who is duly licensed and registered," etc. This definition does not exclude a place of business at which no licensed or registered pharmacist is employed.
Section 18 of the statute specifically provides that it shall not be co:r:strued to prohibit the sale by merchants of home remedies, not pmson, or the sale by merchants of preparations when sold only in the original package commonly known as patent or proprietary preparations, or the sale of insecticides.
The intent and purpose of the Act, as I interpret it, is to prevent the compounding and sale of medicines by a person not a registered

18
pharmacist. Its intent and purpose is not to require the presence of a registered pharmacist at all times at all drug stores, but simply to prohibit the doing of the things legislated against in the absence of such registered pharmacist.
The regulation proposed, in so far as it would authorize the Chief Drug Inspector to require a drug store to keep a registered and licensed pharmacist on duty at all times, and to prohibit the absence of such employee for more than an hour at any time, in my opinion is unreasonable, is not designed to carry out the intent of the Act, and is beyond the authority of the State Board of Pharmacy.
ALCOHOL-Law regulating uses
June 7, 1934 Dr. W. S. Elkin, Jr. State Drug Inspector Dear Dr. Elkin:
I have your request for an opinion as to whether or not Section 431 of the Penal Code of 1910 (Ch. 58-1, Code of 1933) which was a part of the State Prohibition Act of 1907, and which permits the sale by licensed druggists of wood and denatured alcohol for art, scientific or mechanical purposes or grain alcohol for bacteriologists who are actually engaged in that class of work or for scientific work only, was repealed by the Act of 1919, (Michie's Penal Code, 1926, Sections 448(60), 448(61)), which regulates the sale and dispensation of alcohol by licensed druggists and which prohibits the sale of such alcohol unless it be denatured or medicated as provided by that Act.
It is the general rule of law that a statute is not repealed by a subsequent enactment unless it is expressly so provided or unless they are in irreconcilable conflict or unless the latter is designed to cover the entire subject matter embraced in the former.
The Act of 1919 authorized druggists, pharmaceutical and medical schools, bona fide hospitals and mechanical laboratories and industrial manufacturers using alcohol for industrial or scientific purpose only to obtain such alcohol by complying with the Federal regulations on the subject. It seems that this provision intended to prevent the application of the provisions of the statute requiring the medication of alcohol from applying to the class of purchasers just referred to and to recognize the necessity for the use of undenatured and unmedicated grain alcohol by bacteriologists or for scientific purposes only, since provision was made whereby it might be legally obtained by such persons.
I am of the opinion, therefore, that Section 448(61) of Michie's Penal Code of 1926 does not irreconcilably conflict with Section 431 of the Penal Code of 1910 and that a bacteriologist using pure grain alcohol and that for scientific purposes only, may legally obtain the same from a wholesale or retail druggist upon complying with the existing Federal regulations on the same if there are such.
Thus construed, I am of the opinion that Section 448(61) of Michie's Code of 1926 which requires alcohol to be denatured or

19
medicated before it can be legally sold or dispensed by a druggist has application only to sales to persons other than those authorized by Section 431 of the Penal Code and by the Act of 1919 to obtain pure grain alcohol for the special purposes enumerated.
PHARMACY ACT-Who may sell narcotic drugs
March 6, 1984 Dr. W. S. Elkin, Jr. Chief Drug Inspector Dear Dr. Elkin:
This will acknowledge your request for an opinion as to whether or not under Section 18 of the Pharmacy Act of 1927, persons other than licensed druggists, veterinarians, dentists or physicians may compound, sell or dispense narcotic drugs in any form.
Construing the law in the interest of public health, the only persons who may dispense narcotic drugs in any form are those classes of persons as named in Section 18 of the Pharmacy Act and such prescription or dispensation of such drugs must be in the manner and in accordance with the restrictions of said Section. Since drugs containing narcotics are not classified as home remedies, or as patent or proprietary preparations, subdivision 3 of Section 18 does not apply and consequently such drugs could not be legally dispensed by a general merchant.
It is our information that narcotic drugs have formerly been dispensed by general merchants obtaining a license from the Collector of Internal Revenues under Class 5, which under the Federal Law permits the sale of exempt preparations including paregoric, Bateman's drops and Godfrey's Cordial. In obtaining this license from the Federal Government, the applicant makes the following oath:
"I solemnly swear or acknowledge before two witnesses, that the person, firm or corporation named above is duly authorized by the laws of this State to engage in the business or businesses of practicing the above described and to distribute, prescribe, dispense or administer drugs coming within the scope of the above named Act in the class or classes for which this application is made and at the address given.
"I further swear or acknowledge that all of the above statements are true and correct." . Since a person who is not a licensed druggist, physician or dentist IS not duly authorized by the laws of this State to engage in the business o~ businesses of practicing the above described, and it is not autho_n~ed to distribute, prescribe or dispense or administer drugs contammg narcotics, a license issued to such a person by the Federal Government would not give such a person a right to sell or dispense drugs containing narcotics. That is, a general merchant, even thou~h he had a license from the Internal Revenue Department, o~tau~ed under Class 5, could not deal in narcotics because the applicatiOn for said license by which he applies for a right to deal in only

those drugs which he is "duly authorized by the laws of this State to distribute, prescribe, dispense or administer."
PHARMACY ACT-Regulations relating to sale of patent or proprietary preparations
January 31, 1934 Dr. W. S. Elkin, Jr. Chief Drug Inspector Dear Dr. Elkin:
Your verbal request of recent date for an opinion relative to the authority of the Board of Pharmacy to pass the following regulation acting under Section 18, Item 3, of the Pharmacy Law, has been received.
Item 3, of Section 18, of the Pharmacy Law, is as follows: "This item shall be construed in the interest of public health and
shall not be construed to prohibit the sale by merchants of home remedies, not poison, or the sale by merchants of preparations commonly known as patent or proprietary preparations when sold in the original or unbroken package." The words "home remedies" do not require any definition or construction, as your department is familiar with the items which are usually and properly classified under this heading. Neither is there any reason to discuss what should be included in the term "patent" preparations. The only question that arises under this law seems to be as to what preparations shall be excluded from the sale by persons other than licensed pharmacists or upon the prescription of a licensed physician, as "proprietary preparations." The definition of "proprietary preparations" proposed by your board is:
"The terms 'patent or proprietary medicines' as used in this Act shall be interpreted to mean those packaged medicinal products advertised to the general public for self medication; and not those products or preparations advertised to physicians under copyrighted or trade names to be prescribed or to those products recognized by the United States Pharmacopeeia or National Formulary, or to those products or preparations which from their nature and known effects should not be dispensed or prescribed for use by the public, except upon the prescription or advice of a licensed physician or a licensed druggist." In 50 C. J., page 790, the term "proprietary preparations" is defined:
"A medicinal preparation may be proprietary when it is recommended by the manufacturer to the public as a proprietary medicine, or as a remedy for a disease without being made by a private formula, or under an exclusive right claimed to the making or preparing it, or under a patent." It does not appear that the courts of our State have ever construed the term "proprietary preparation", but we find that the Supreme Court of Iowa in the case of State vs. Jewett Market Company, ~88

~1

N. W., page 288, in defining this term adopted the following defini-

tions:

"A proprietary medicine is a medicine which has a secret

formula",

and called attention to the definition in the case of



Ferguson vs. Arthur, 117 U. S. 482,

in which it was said

"Proprietary is defined thus in the Imperial Dictionary: 'Be-

longing to ownership; as proprietary rights'. In Webster: 'Be-

longing or pertaining to a proprietor'-proprietor being defined

'one who has the legal right or exclusive title to anything', whether

in possession or not; and owner." In Worcester: "Relating to a

certain owner or proprietor."

In the case of Tiedje vs. Haney, 239 N. W., page 613, it was said:

"The word proprietary, as applied to medicines necessarily im-

plies that the medicine has been compounded by a manufacturer

who prepared the medicine according to his own formula, though

probably it is not necessary that the formula should be the exclu-

sive property of the maker, or that the process be.secret. It may

have a character of its own according to the reputation of the

manufacturer and the nicety with which it is prepared. We be-

lieve that a medicine cannot be considered proprietary unless the

original package in which it is contained bears the name of the

manufacturer. If it does not, it comes within the rule applied to

other medicines and drugs sold by druggists, and for the quality

of which our statute holds him reliable."

Trusting these definitions as construed and applied by other courts

will be of some benefit to you, I am

AUDITOR-Payment of Ordinaries' fees for 1932 pension work
February 6, 1933 Hon. Tom Wisdom State Auditor Dear Mr. Wisdom:
Referring to our conversation of a few days ago, in which you req_uested opinion regarding the payment of the fees due the Ordinaries of this State, for pension work for 1932, I beg to advise as follows:
The Act approved April 17th, 1926, provides that each Ordinary s~all be allowed a fee of $2.00 per pensioner per annum for the serVIces prescribed by that Act. While it is further provided by that Act that the Governor shall draw his warrant upon the unexpended bala~ce of the pension fund remaining in the Treasury after all the pen~wn~ have been paid for the current year to pay the OrdmariCs their fees, this Act cannot be taken to limit the Governor to the use of the unexpended balance of the pension fund for the purpo_se of paying the fees of the Ordinaries. There is no limitation in this Act upon the right of the Ordinaries to receive these fees. Consequently, the provision with reference to their payment out of the unexpended balance of the pension fund can only be taken to provide a method of payment and not to limit the right of payment. Es-

22
pecially is this true in view of the language of Section 3 of the Act of 1926, that no appropriation shall ever be necessary to authorize the use of such unexpended balance of the pension fund.
The Cigar and Cigarette Stamp Act, approved March 28th, 19tH, by Section 20, allocates the net proceeds of all sums derived under the operations of that Act "to the payment of pensions due or hereafter to be due to Confederate soldiers and their widows." Since some administration expense is necessary in the payment of pensions, this allocation could not be taken to limit the purposes to which the Cigar and Cigarette Stamp Tax revenue might be applied to the payment of sums due to the pensioners to the exclusion of the administrative expenses incurred in the payment of the pensions.
The Appropriations Act of 1931, by Section 35, sets up a special fund of $20,000.00, to be derived from the Cigar and Cigarette tax to defray the entire expense incurred by the operation of the Pension Department and to pay any fees due the Ordinaries for pension work. This Act was passed subsequent to the Cigar and Cigarette Stamp Act of 1931, and is the last legislative expression upon the allocation of the Cigar and Cigarette tax.
Even if the allocation provided for by the Cigar and Cigarette Stamp Tax Act should be taken to preclude the use of the revenue derived under that Act for any purpose other than payments directly to pensioners, this provision is, in my opinion, superseded by the provision of the General Appropriations Act referred to.
In my opinion, the fees due Ordinaries for pension work may legally be paid at the end of any year out of any unexpended balance remaining in the special fund of $20,000.00 referred to. It is further my opinion that it was the intent and purpose of the Legislature to set up this special fund of $20,000.00 each year out of the Cigar and Cigarette Tax, to defray the administrative expenses of the Pension Department, including the fees due the Ordinaries, and that whatever balance remained in this special fund on December 31st, 1932, could properly and legally, and should be, applied to the pension fees due Ordinaries for that year.
It is further my opinion that this $20,000.00 constitutes no part of the pension fund for the years for which it is specifically set aside to pay the administrative expenses of the Pension Department.
AUDITOR-Use of appropriation for one institution by Board of Control for another institution
July 11, 1933
Hon. Tom Wisdom State Auditor Dear Mr. Wisdom:
This letter is in reply to yours of July lOth in which you submit to this Department, at the request of the Governor, the following question:

"The State Board of Control have the following institutions

under their direction, namely:

Public Welfare Division

Tuberculosis Sanitorium-Alto Confederate Soldiers Home

,

Training School for Girls

School for the Deaf

School for Mental Defectives

Academy for the Blind

Milledgeville State Hospital

Training School for Boys

"The Chairman of the Board, Mr. Arthur Lucas, has asked the

question if the Board of Control can use any funds appropriated to

one or more of the institutions for the support of another one of

the institutions. Or in other words, can the State Board of Con-

trol, if they find that one or more of the institutions can function

with less than their appropriation, if they may legally use the

amount not needed for one institution to help an emergency in

another?"

Answering this letter, this is to advise that it would give me much

pleasure if I could conscientiously answer the question in the affir-

mative. I can see how the State Board of Control could in many

instances partially solve its financial problems if they might legally

use the amount appropriated for one institution but not needed by

that institution to help an emergency in another institution under

its control. I also readily see that in some instances some of the in-

stitutions can function with less than their appropriation, while in

other instances other institutions under this same Board actually

need amounts in excess of the appropriation.

In the Appropriations Act of 1931 the General Assembly made specific appropriation to the several institutions now under the State Board of Control. I am not unmindful of the fact that in the Appropriations Act the specific appropriations made for these several institutions for each of the years 1932 and 1933 were for maintenance, ~oweve.r, in the appropriation for the Confederate Soldiers Home it 1s provided that $3,000.00, or so much thereof as is necessary, may be expended for a special weekly allowance for inmates of the Home as prescribed by law; and that in connection with the appropriation for the State Tuberculosis Sanatorium it is provided that $5,000.00 ~mt of said appropriation may be used to purchase lands and buildmgs.

Section 7 of Part 2 of the General Appropriations Act for 1931 (Ga. L. 1931, p. 87) was enacted by the Legislature to take care of the departments, boards, commissions, bureaus, institutions, and all
the ot.her.agencies of the State, which where consolidated by theReorgamzahon Act. By this section it is provided that where such
departments, boards, commissions, bureaus, or agencies for which an appropriation is made in this Act shall be consolidated with any oth~r department, board, commission, bureau, institution or agency, or m the event of the reorganization of any such departments,

24
boards, commissions, bureaus, institutions, or agencies, so as to form a department, board, commission, bureau, institution or agency of the State not then existing, that in that event the appropriation made for such department, etc., so consolidated or reorganized, or so much thereof as might be necessary, shall, under the direction of the Governor, be available for use by the department, etc., with which any such department, etc., might be consolidated, or shall be for the use by the consolidated department, etc., formed by such reorganization, for the purposes for which such appropriation was therein made.
From the provisions of this section it seems to have been the clear intent of the Legislature as expressed by that section that the Board of Control should have authority under the direction of the Governor, to use the appropriation made -for the several institutions placed under the State Board of Control, or so much thereof as may be necessary, but limited in so using the funds for the purposes for which the appropriation was made.
It is significant that the General Assembly in the General Appropriations Act of 1933, in making the appropriations to the Board of Control of Eleemosynary Institutions (Acts 1933, p. 24, Section 24), made specific appropriations to the separate institutions under the control of that Board. A separate appropriation of $15,000.00 for each of the years 1934 and 1935 was made for the payment of expenses of operation of the office of the Board of Control.
It further appears from Section 25 of the General Appropriations Act of 1933 that the appropriations made by the General Assembly to the Regents of the University System was in one lump sum and "for the expenses of operation of the office of the Regents, and for aid to the University System. (Ga. L. 1933, p. 25, Section 25.)
The Constitution provides (Section 6440) (Section 2-1811, Code of 1933) as follows:
"No money shall be drawn from the Treasury except by appropriations made by law." Under the Budget Law passed at the Extraordinary Session of 1931 the Governor is made the Director of the Budget and before an appropriation to any spending agency shall become available such agency is required to submit to the Governor requisitions quarterly for an allotment of the amount estimated to be required to carry on the work of the agency during the ensuing quarter. Such requisition must conform to the provisions of the Act of the General Assembly making appropriations. After final action is taken by the Governor the Auditor is governed in his control of expenditures by the allotments made upon these requisitions. No allotment can be changed or transfers made except upon the written request of the responsible head of the spending agency and for the approval of the Governor in writing, and it can become available then only after a copy of the request and approval is submitted to the State Auditor. Where the Legislature has acted and has in specific terms made appropriations for the maintenance of the separate institutions which have been placed under the control of the State Board of Control,

I am of the opinion that this Board of Control cannot use the amount appropriated to one institution and apply the same to another institution. This is a proper matter for legislative enactment.
BOARD OF CONTROL-Construction of Juvenile Court Act
February 10, 1933 Mrs. Lucy R. D. Ficklen Secretary Board of Control Dear Mrs. Ficklen:
I have carefully noted the copy of letter from Mrs. M. E. Sikes, Superintendent of the Georgia Training School for Girls, to Mr. Arthur Lucas, Chairman of the Board of Control, which you delivered me on yesterday with the request that I advise you in regard thereto and make some suggestion for relief of the situation referred to.
About a year ago the Supreme Court had before it a consideration of the Juvenile Court Act. In the case of Wages vs. Morgan, 174 Georgia, 158, this act was held unconstitutional in so far as it authorizes the conferring juvenile court jurisdiction on the courts of ordinary in certain counties. The decision was based on the provision of our Constitution which requires all courts of the same grade and class to be uniform. Since the Juvenile Court Act authorizes the judges of the superior courts in certain counties to confer this jurisdiction, it was held that the uniformity requirement of the Constitution would be violated, as such jurisdiction cannot be conferred under the act, on courts of ordinary.
In the wages case the order under consideration was passed by a court of ordinary. The Section of the Constitution requiring uniformity of all courts of the same grade and class does not by its terms apply to city courts. The reasrming on which the Wages ~se is based did not apply to city courts and it is possible that a different decision might be rendered in a case where juvenile court jurisdiction was exercised by a city court. However, the language I~ the Wages case is very broad and it might be held that the en-
!tire act is unconstitutional. can only make the following suggestions for relief of the situatwn: 1. Secure the passage of a juvenile court act or an amendm~nt to. the existing act which will secure the requisite constitutional ~m!ormity. 2. If this is not done, undertake to have juvenile court JUr~sdiction in counties of less than sixty thousand population exercised by city courts as far as possible. . It appears from Mrs. Sikes' letter that a number of girls are now m ~he training school who were committed by orders of courts of hrdi.nary exercising juvenile court jurisdiction, such commitments a_vm~ o.ccurrcd prior to the decision in the Wages case. I do not ~hmk It Incumbent on the Superintendent of the school or upon the
oa~d of Control to take any action in these cases on their own motion. The girls were committed by order of court which was apparently legal on its face, and if any parties at interest desire to

take advantage of the fact that the court was without jurisdiction to commit, such party should take appropriate action. In the absence of such action, I think these girls should be retained in the school just as if committed by an order of court having unquestioned jurisdiction.
BOARD OF CONTROL-Notice of intention to withdraw State funds from depository
April 20, 1933 Mrs. Lucy R. D. Ficklen Secretary-Treasurer Board of Control Dear Mrs. Ficklen:
Yours of recent date calling my attention to Section 1256 of Park's Code, Volume I, (Sec. 10Q-108 of the Code of 1933) as authority for ten days notice of intention to withdraw monies from a depository bank under bond, received.
The section referred to provides in substance that the Treasurer of this State shall not deposit at any one time, or have on deposit at any one time, in any one of the depository banks of this State, for a longer time than ten days, a sum of money belonging to this State that exceeds the bond given by said depository to the State, and that the Treasurer shall check from any depository the amount of the State's money that said depository holds in excess of its bond and pay the same into the treasury. This section is a limitation placed upon the treasurer, and has no reference whatever to depositories selected by the Board of Control in which its funds are deposited.
Neither does the section in question require ten days notice of intention to withdraw funds but makes it mandatory upon the treasurer not to have on deposit at any one time at any one of the depository banks designated for a longer period than ten days any sum of money belonging to the State in excess of the bond. This section does not provide for any notice to the depository but is directory to the treasurer.
In your letter you make reference to the Cornelia Bank. I have known this bank, its officers and directors, for a long number of years. They are high class men, the soul of honor and integrity.
BOARD OF CONTROL-Forms for commitment of insane persons to State hospital
August 31, 1933 Dr. R. C. Swint, Superintendent Milledgeville State Hospital Milledgeville, Georgia Dear Dr. Swint:
I have your letter of August 26th in which reference is made to the copy of my opinion concerning amendment to the 1918 law for

27

the commitment of patients for State Hospitals which was sent to you.

I note from your letter that Judge Butt, Ordinary of Marion

County, requests you to have prepared a form of commitment under

the Amended Act of 1933 in order that he might have some blanks

printed.

.

The Act of 1933 does not require a new form of commitment and'

the forms heretofore used may be used hereafter.

The Act of 1933 simply provides that where there is no regularly

employed county physician or no regularly employed county attorney

that the commission shall be directed by the Ordinary to six repu-

table persons, one of whom shall be a practicing physician of the

county in good standing and the remaining five shall be qualified

jurors not related to any person at interest in said cause.

The old forms formerly used by the Ordinaries simply provided

blank lines or spaces for inserting the names of the persons to whom

the commission is directed. Those same forms may be used under

the Amendment of 1933 but the Ordinary should be instructed in

filling out the commission to direct it according to the Act of 1933.

In other words, in those counties where there is no regularly employed

county physician or county attorney the Ordinary should be in-

structed to direct the commission to six reputable persons, one of

whom shall be a practicing physician of the county in good stand-

ing and the remaining five should be qualified jurors of the county

not related to any person at interest in said cause.

The commission conducts the examination and makes the return

in the same manner and subject to the same provisions as heretofore

provided.

The Act of 1933, as you will note, further provides that in the

event there is no practicing physician in the county, the commission

should be issued to some physician in the adjoining county and that

if there is no such physician available in an adjoining county the

commission may issue to six reput&ble persons, residents of the

county, who are qualified jurors and not related. Of course, the in-

struction to the Ordinary covers this part of the Act so that if there

is no available physician the commission might be directed to the

six jurors.

For your information I have prepared a short statement of instructions to Ordinaries which you might furnish them for their o~servance in directing the commission. The copy of the instruc-
tions so prepared is inclosed herewith.
The order and judgment of the Ordinary of commitment would not have to be changed.

(Memorandum Inclosed as Follows)

INSTRUCTIONS TO ORDINARIES RELATING TO LUNACY COMMISSIONS.
In preparing lunacy commissions your attention is called to the Act ?f 1933, which is amendatory of the Act of 1918, the provisions of smd amendment being as follows:
"Provided, that in any county of this State where there is no

regularly employed county physician, or no regularly employed county attorney, the said commission shall be issued by the Ordinary to six reputable persons, one of whom shall be a practicing physician of the county, in good standing, and the remaining five shall be qualified jurors of the county, not related to any person at interest in said cause. Said commission shall conduct such examination and make a return thereof in the same manner and subject to the same provisions as the commission hereinbefore in this section provided for. Provided further, that in case there is no practicing physician in any such county, said commission shall be issued to some reputable practicing physician of an adjoining county. Provided further, that each of said jurors, including said physician, shall receive the sum of $1.00 for his services, and in addition thereto said physician shall receive his actual traveling expenses, not to exceed $5.00 in any case. Provided further, that if no such physician is available, either in the county in which the proceeding is had or in an adjoining county, said commission shall issue to six reputable persons, residents of said county, who are qualified jurors thereof, and not related to any party interested in said cause." Therefore, hereafter in issuing lunacy commissions the Ordinary will direct said commissions accordingly. In those counties which do not have a regularly employed county physician or regularly employed county attorney the commission should be directed to six reputable persons, one of whom shall be a practicing physician of the county in good standing and the remaining five shall be qualified jurors of the county not related to any person at interest. In the event no such physician is available in said county the Ordinary should name and direct said commission to a reputable physician of an adjoining county. In the event there is no available physician in an adjoining county, the commission should be directed to six qualified jurors of the county who are not related to the parties at interest.
BOARD OF CONTROL-Authority of Superintendent of Training School for Boys to compel counties to pay return transportation of inmates
October 2, 1933 Mr. W. E. Ireland, Supt. Milledgeville, Georgia Dear Mr. Ireland:
Yours of the 29th ultimo has been received. You desire to know whether there is any authority under the law to compel the various counties to pay for the return transportation of boys who have been committed to your institution. I have made investigation and can find no authority in the law for a county to be charged with this expense. The counties do not have a right to levy a tax for this purpose under our Constitution, which restricts the counties to specified purposes for which a tax may be

!!9
levied. Under Article 7, Section 6, Paragraph 2 of the Constitution of our State, as set out in Michie's Code, Section 6562, (Sec. 2-5402 of Code of 1933) it is stated:
"The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose except for educa-, tiona! purposes, to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners and for litigation, quarantine, roads and expenses of courts; to support paupers and pay debts heretofore existing; to pay the County Police and to provide for necessary sanitation." The only classification as contained in the above section, under which the county authorities could justify the expenditure of funds derived from taxation would be as an expense of the courts. However, even to try to justify such an expense on the part of the county as being an expense of the courts seems a bit far-fetched to me. Neither do I feel that this charge could be justified under the classification as set out in the Constitution "to maintain and support prisoners", in view of the fact that after the boys are released from your institution they are no longer prisoners, if they ever were. As I understand it, they are regarded more as wards than they are as convicts.
As stated above, the taxing power of the counties is limited by the Constitution and also certain other taxing powers are set out in Section 513, Michie's Code of 1926, (Sec. 92-3701 of Code of 1933) and also in Sections 399 and 400, (Sees. 91-701 and 91-702 of Code of 1933). Since the county has no right to levy a tax for the payment of such an expense, it seems to me that the payment of such an expense by the county officials would be illegal, and any taxpayer in a county could enjoin the payment of such expenses under Section 394, Michie's Code, 1926, and institute proceedings for the removal from office of the county officers who paid illegal expenses.
ACADEMY FOR THE BLIND-Transfer of pupil's fund from Treasurer of Board of Trustees to Board of Control
October 25, 1933
Mrs. Lucy R. D. Ficklen Secretary-Treasurer Board of Control My dear Mrs. Ficklen:
Re: Pupils Fund, Academy for the Blind, Macon, Georgia.
Your oral request made some time since that I advise you whether or not the "Pupils Fund" of the Academy for the Blind should be transferred from Hon. T. J. Stewart, former Treasurer of the old Board of Trustees of the Georgia Academy for the Blind, to the Board of Control, would have been answered earlier but for the great press of business with which we have been deluged for the last two months.

so

The information furnished at the time the question was pro-

pounded did not appear of sufficient clarity to authorize a definite

ruling. In view of the historical interest and of the amount involved,

the Attorney General made some independent investigations as to

the origin, purposes of this fund, and how and by whom it had been

administered.

The General Assembly of the State of Georgia, in a bill approved

January 19, 185~. incorporated and endowed the Georgia Academy

for the Blind. Nathan C. Munroe, Absalom H. Chappell, John B.

,Lamar, Edwin B. Weed, James M. Green, Edwin Graves, and Robert

A. Smith were named in the bill as Trustees for the Georgia Academy

for the Blind, and were declared to be a body corporate by the name

and style of "The Georgia Academy for the Blind," and by the same

corporate name to have perpetual succession, be capable to buy,

hold, and sell real and personal estate, make contracts, sue and be

sued, to use a common seal, and to break or renew the same at

pleasure.

Section 8 of the Act provided further:

"And be it further enacted, That the Trustees of said Academy

shall be empowered to receive all gifts, grants, legacies, privileges

and immunities, which now belong to said Academy, or which here-

after may be made or bequeathed to it, and no misnomer of the

corporation, or other technical error, shall prevent its right from

vesting whenever it may appear, or shall be ascertained that it

was the intention of the party or parties, to give, grant, or be-

queath any property, real or personal, or any right or interest to

the said corporation."

Section 7 of the Act provided:

"That to aid the funds, and defray the expenses of the said

Academy, his Excellency, the Governor, is hereby authorized and

required to draw his warrant on the State Treasurer, in favor of

the Trustees aforesaid, for the sum of five thousand dollars, to be

paid in the year 1852, and shall draw his warrant on the State

Treasurer, in favor of the said Trustees, for the further sum of

five thousand dollars, to be paid in the year eighteen hundred and

fifty-three."

'

The following are extracts from the Minutes of the Board of

Trustees of the Academy for the Blind:

"In December, 1858, the Principal was authorized by the Board

to go to Milledgeville with the teachers and pupils, and instructed

to give an exhibition of the pupils, showing their progress in edu-

cation, the exhibition to take place while the Legislature was in

session. The Principal was also requested to call the attention

of His Excellency and the General Assembly to the great im-

portance of having a suitable building erected as an Academy for

the Blind, and to ask an appropriation of the General Assembly

for that object, and the usual appropriation of $5,000.00."

"February 4, 1854. The Secretary reported that he had visited

Milledgeville and attended two exhibitions of the pupils of the

Academy, one given to the General Assembly one afternoon and

Sl
another to the public at night; that both exhibitions were highly creditable to the teachers and pupils and had been well received by the General Assembly and the public."
"In March of this year (1854) Robert A. Smith, Secretary, received the sum of six hundred and eighty dollars from the two , committees composed of Senators and Representatives, which amount had been generously given by members of the General Assembly, and he stated that he was instructed by the committee to appropriate the amount for 'the use and benefit of the pupils'. The Trustees advised him to invest the sum of six hundred dollars of this donation as trustee of the fund, in the capital stock of the Southwestern Railroad. This is the origin of what is known as the Pupils Fund of the Georgia Academy for the Blind." The $680.00 was not an appropriation made by the General Assembly, but was a contribution made by the members of the General Assembly, secured by "passing the hat" around, as it were. Prior to 185!2 the Academy for the Blind was a private institution, depending for its support and maintenance upon donations made by private individuals, and though the State had incorporated and endowed it in 185!2, it was still without adequate buildings. The exhibitions given by the pupils, referred to in the Minutes of the Board of Trustees, and their pitiful plight, must have made a very deep impression upon the various members of the General Assembly when the appeal for additional help was made in December, 1853, as the General Assembly, at the same session, by an act approved February 18, 1854, in addition to appropriating the sum of $!2,500.00 for each of the years 1854 and 1855, appropriated $10,000.00 "for the purpose of erecting a suitable building in the City of Macon for the Blind Academy, and that His Excellency, the Governor, be and he is hereby authorized to draw his warrant on the State Treasury in favor of the Trustees of said institution for said amount." The only limitation placed by the donors upon the $680.00 was that "the money shall be spent for the benefit of the pupils." The Board of Trustees have always interpreted that to mean that the fund could not be spent for maintenance or the ordinary expenses of the institution. The capital sum donated was increased from year to year by adding the accumulated interest and reinvesting the same, until the amount reached the sum of $11,000.00, all of which was done under and by direction of the Board of Trustees. When the amount reached the sum of $11,000.00 the Board of Trustees, as shown by the records, decided that no additional amounts should be added to the original sum but that the yearly income should be sp~~t" for the benefit of the pupils".
For the benefit of the pupils" was interpreted by the Board of Trustees to mean that the fund could be used for anything that would ~dd to the comfort, well-being and happiness of the pupils. From time to time various sums were spent for clothing, for help for s~udents after they left school to enable them to earn a living, for tickets to. musical entertainments, for phonographs, radios, and on one occasiOn to purchase round trip railroad tickets for pupils at

Christmas so they could visit their parents at home. In more recent

years the greater part of the income has been divided among the

students at Christmas to give them Christmas money which they

were allowed to spend in any way they desired.

During all the years this fund was handled by the Treasurer of the

Board of Trustees and under the direction and control of the Board.

The Treasurer kept itemized receipts and expenditures, and the

Treasurer's book now in the hands of Mr. T. J. Stewart, which goes

back for many years, shows the receipts and expenditures from this

fund, and the Treasurer has, for many years past, included a state-

ment of the "Pupils Fund" in his report to the Trustees.

At all times the Trustees of the Academy for the Blind have ex-

ercised exclusive management and control of this fund and have,

from time to time, ordered investments to be made. The following,

taken from the Minutes of the Board of Trustees, is self-explanatory:

Macon, Ga., May 16th, 1895.

Henry L. Jewett, Treasurer, of the Pupils Fund, Ga. Academy for

Blind:

You are hereby authorized, a majority of the Trustees signing

this minute, to deliver to B. C. Smith, President, one bond of one

thousand dollars, of the Ga. Southern & Florida Rail Road Co.,

and authorize him to sell the same and turn over the proceeds of

said sale to the said H. L. Jewett, Treasurer, for the use of said

Pupils' Fund.

By order of the Board

H. J. Lamar

(signed)

T. D. Tinsley

"

C. E. Campbell

"

Ben C. Smith

"

Henry L. Jewett

"

Trustees G. A. B.

W. D. Williams (signed)

Secretary."

The report of the Secretary-Treasurer of the Board of Control for

the year 1931 with reference to the "Pupils' Fund" is as follows:

"This is a fund which began many years ago, with the donation

of $680.00 to the Academy, to be expended by the Board of Trus-

tees for the benefit of the pupils. The present value of the fund

is $11,000.00, it having increased by earnings and profit from this

small amount, after deducting amounts paid to and for pupils.

The securities in this fund are as follows:

40 shares, Southwestern Railroad, Stock.....................$ 4,000.00

3 City of Atlanta bonds................................................ 3,000.00

2 U.S. Liberty bonds.................................................... 2,000.00

2 Greenville, S. C. school bonds.................................. 2,000.00

$ 11,000.00 "This fund is a public trust fund, and should be taken over by the Board of Control of Eleemosynary Institutions since after January 1, 1922, the Treasurer of the Academy for the Blind

83
ceased to hold an official position, and now has custody of the fund in the capacity of a private citizen. "This transfer has not been made, and in my opinion, the fund as such should be in the custody of the Treasurer of the Board, and the accounting on the books should be kept in that office." On January 1, 1932, 1\fr. T. J. Stewart, the former Treasurer of ' the Board of Trustees, and the present holder of the "Pupils' Fund" appeared before the Board of Control and, by direction of the former Board of Trustees, tendered the ''Pupils' Fund" to the Board of Control. Mr. Stewart explained to the Board of Control the origin and the purpose of the fund, and how it had been administered. The members of the Board of Control did not accept the fund, being under the impression that they had nothing to do with it. Since that time Mr. Stewart has been awaiting orders, and has expressed a desire to turn the fund over to any State agency legally authorized to receive the same. Investigation shows that 1\Ir. Stewart is a man of the highest honor and integrity, and while the funds are safe in his hands, he has no authority as a private citizen to invest or ad minister the funds. The specific question involved is: "Whether or not the Board of Control as established by the Reorganization Act of the Legislature in 1981 (Georgia Laws 1931, page 18, section 39) is vested with the authority to receive the "Pupils' Fund" as Trustees and to administer it for the benefit of the pupils as intended by the donors. Section 29 of the Reorganization Act above referred to provides as follows:
"The Board of Trustees of the Academy for the Blind, together with the Board of Visitors thereof, respectively existing under and by virtue of sections 1401 and 1410 (Code 1910), are hereby abolished and all the powers, duties, and functions of said Board are hereby transferred to and vested in said Board of Control. The corporate franchise of said board is hereby revoked, and title to all property held in the name of said institution or its trustees shall vest in the State of Georgia." Thus it will be seen that the Act approved January 19, 1852, (Acts 1851-2, p. 4), so far as it provides for the appointment of a Board of Trustees for the Georgia Academy for the Blind, was repealed and that all the powers, duties and functions of the Board of Trustees were transferred and vested in the Board of Control and the tit~e to all of the property held in the name of the Academy for the Blmd or its Trustees was vested in the State of Georgia. Section 115 of the Reorganization Act (Ga. Laws 1931, p. 45), is as follows:
"Be it further enacted, that whenever and wherever in this Act it ~s provided that powers, rights, duties, functions, and/or responsibilities of any board, office, or official in this Act referred to s~all be delegated to, and/or transferred to any other office or officml or department designated or created under this Act, said powers, rights, duties, functions, and/or responsibilities shall be and are those now provided and defined by existing laws, which

said powers, rights, duties, functions, and/or responsibilities hereinbefore referred to are hereby preserved." These sections, when taken in connection with the Act of 185~ creating and incorporating the Georgia Academy for the Blind and
appointing trustees therefor, delegated to the Board of Control of Eleemosynary Institutions the power to act as trustee of any funds of the Academy for the Blind which were formerly held by the
Board of Trustees of said Academy. Under our law, (Michie's Code, 1926, Section 3732), (Code of
1933, Sec. 108-104) it is provided that trusts may be either expressed or implied. Section 3733 of Michie's Code (Code of 1938, Sec. 108-
105) provides that all express trusts must be created or declared in writing. From the information submitted to us from various sources
and from what we can gather from the records of the Academy for the Blind the trust relative to the "Pupils' Fund" of Georgia Academy for the Blind was not created expressly or declared in writing. Section 8782 of the Code provides that:
"Implied trusts are such as are inferred by law from the nature
of the transaction or the conduct of the parties." The history of this fund shows that the original contribution was received through the generosity of the Senators and Representatives in March, 1854. There were no special restrictions as to either the time or method of expenditure, except that it was to be used for the benefit of the pupils. The whole transaction was verbal, so far as
we have been able to determine. An implied trust was created at the time of the donation or it became a trust due to the subsequent conduct of the parties relative to the fund. The Trustees of the Academy in the exercise of their discretion never allowed any of this fund to be spent for the maintenance or the ordinary expenses of the institution or to supplement the annual appropriations made by the General Assembly. Such part of the income as was in their judgment needed was used for the benefit of the pupils and the remainder invested in securities.
Code Section 3871 (Sec. 108-302, Code of 1933) provides in part
as follows: "A trust shall never fail for the want of a trustee." It is our information that the "Pupils' Fund" is now in the hands
of T. J. Stewart, former Secretary and Treasurer of the Board of Trustees, who has tendered it to the Board of Control and is now awaiting orders or instructions as to the disposition of the fund. He is now a private individual and while there can be no question but that the funds which he holds will be faithfully preserved, yet condi-
tions might arise in which the benefits might fail. We are of the opinion that under the facts stated and under the
law the Board of Control is the proper custodian of this fund and that the members are empowered to act as trustees of the fund to preserve it, make investments, and use any part of the funds that may in their discretion be necessary for the benefit of the pupils as originally intended by the donors.
We do not believe it would be wise to encroach upon the present

35
corpus of the fund. It should be maintained and only the income used for the benefit of the pupils. If those who are now charged with the administration of this fund and if those who succeed them will act as wisely and with as much discretion as the trustees who have gone before, the benefits that will be derived will be incalculable for those who so sadly need it.
The assistance rendered by Mr. G. F. Oliphant, Superintendent of the Academy for the Blind, and by Mrs. Lucy R. D. Ficklen, Secretary-Treasurer of the Board of Control, in tracing the origin, history and purposes of this fund, making it possible to render an opinion which it is hoped will clarify the situation and preserve this "Pupils' Fund" for the benefit of future unfortunates, is greatly appreciated.

BOARD OF CONTROL-Authority to collect interest on State deposits

November 24, 1933

Hon. E. E. Lindsey, Chairman
Board of Control Eleemosynary Institutions Dear Mr. Lindsey:

Yours of the 22nd instant inclosing the letter of Mr. Otto M. Cohn has been received.

Mr. Cohn states in his letter that the Federal Reserve Board has issued the following proclamation governing the payment of interest:
"Payment of interest is prohibited on any deposit payable on
demand except on public funds on which interest is required by statute."

He states that it is his interpretation that under this proclamation h!s bank could not legally pay interest on the funds of the MilledgeVIlle State Hospital deposited therein. You desire to know whether the deposits for the various institutions under the Board of Control are not exempt from the ruling of the proclamation of the Federal Reserve Board on account of the funds being public funds.

It is provided under Code Section 1251, Michie's Code of 1926

(Sec. 100-103, Code of 1933) as follows:



''The Governor shall make with depositories the most advan-

tageous contracts for interest to be paid to them to the State

for the use of the State's money which may be deposited therein,

as hereinafter d~pository so

provided by named shall

this Chapter. And in the event any refuse to make satisfactory contract

With. the Governor as to interest to be paid, he shall have au-

thority to remove such depository and appoint another. In the

rent. only one bank is situated in any city designated as a legal

epos1tory, the Governor can place deposits in the depository

nearest situated with whom a satisfactory contract has been

made: Provided, that no officer of this State shall be allowed

to receive any commission, interest, or reward to himself from any

source for the depositing of such money in such depositories, or

36
for continuing such deposits. But the receiving of any such benefit by any officer shall be felony." There is no doubt upon the question of the funds belonging to the Milledgeville State Hospital being public funds. And under the above cited section of our law it seems mandatory upon the Governor to choose such a depository as will pay the best interest rate possible upon the funds deposited with any depository. In the event that the Exchange Bank of Milledgeville sees fit not to perform its contract with the State relative to the payment of interest upon such bonds, then the law provides that the Governor shall change the depository. The law seems to require that interest of as high rate as possible be paid upon State deposits. It is my opinion, therefore, that the proclamation of the Federal Reserve Board above quoted does not apply to the funds of the Milledgeville State Hospital and consequently interest should be paid upon the same in accordance with the contract between the Governor and the bank. If the bank in question does not see fit to continue its contract with the State relative to the payment of interest, then this fact should be reported to the Governor and a new contract made with another depository as provided under Code Section 1~51.
TRAINING SCHOOL FOR BOYS-Authority to require counties to pay board of inmates.
January 4, 1934 Mrs. Albert M. Hill, Secretary-Treasurer Board of Control Eleemosynary Institutions Dear Mrs. Hill:
Yours of the 5th instant inclosing the letter of Mr. W. A. Ireland, dated January 2nd, relative to the right of the Georgia Training School for Boys to require the various counties of the State committing boys to the Training School to pay their board, has been received.
It is my opinion that you are faced with two obstacles should you attempt to pursue such a course of action. In the first place, the counties have no authority to levy a tax for this purpose and consequently have no right to disburse any funds in payment of the board of a boy committed to the Georgia Training School. In the case of Atlanta Chamber of Commerce v. McRae, 174 Georgia, 590, it was said by Justice Atkinson:
"It is declared in Article 7, Section 6, Paragraph 2 of the Constitution of this State (Civil Code, Section 656~) that the General Assembly 'shall not have power to delegate to any county the right to levy taxes for any purpose except for educational purposes; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners and for litigation, quarantine, roads and expenses of courts; to support paupers and pay debts heretofore existing; to pay county police; and to provide for necessary sanitation.' "

37
On page 593 of the opinion the court sets out the purposes for which power has been delegated to counties by the General Assembly to levy a tax. None of these purposes include the support of prisoners in a State institution.
Upon the reception in the training school of a boy committed from . any of the various counties, the counties lose jurisdiction of the boy. The Georgia Training School for Boys is a State institution, for the support and maintenance of its inmates the General Assembly has made a specific appropriation, and after a boy has been received at this State institution the liability of a county for his support and maintenance is at an end.
In the second place, it is my opinion that neither in the Act of 1905, page 127, as amended by the Act of 1919, page 373, nor in the Act of 1930, page 156, is the power or authority given to the Board of Managers of the Georgia Training School for Boys or to the Board of Control, as created in the Reorganization Act of 1931, to require the payment by the counties of the board of boys who are committed from the various counties to the Georgia Training School for Boys. It seems to me under the Act of 1920, which amended the Act of 1905, that the only expense imposed upon the county relative to the commitment of boys to the Georgia Training School for Boys is
" 'His county or .municipality' must defray 'the expenses of transportation to the State Training School for Boys.' " (See Ga. Laws, 1930, p. 157) In Section 3 of this Act of 1930 it is provided as follows: "If there is room, parents may be allowed to enter incorrigible boys on payment of the fees required by the management." However, this provision does not apply to a boy who is legally committed by a proper tribunal, and the only expense in the latter case for which a county is liable, as pointed out above, is for the transportation of the boy to the State Training School.
STATE HOSPITAL FOR INSANE-Inquest over patients who commit suicide
January 15, 1934 Mrs. Albert M. Hill, Secretary-Treasurer Board of Control Dear Mrs. Hill:
Yolfrs of the lOth instant requesting an opmwn relative to the quesb?n ~f having the coroner hold an inquest over patients who comumit SUicide in the Milledgeville State Hospital, has been received. C~.dnedoefr19S3e3c)tiiotnis1p3r3o7viodfedt:he Penal Code of 1926, (Sec. 21-202,
.Coroners shall make inquests over dead bodies in their respective counties as follows: 1. Of !lll violent, sudden, or casual deaths, when there are no eye Witnesses to the killing or cause of death, and such death occurs under suspicious circumstances.

88
fl. Of all sudden deaths in prison without any attending physician. 8. Of all dead bodies found, whether of persons known or unknown when it is apparent from the body that violence caused the death, or when the person died or disappeared under suspicious circumstances. 4. Whenever ordered by a court having criminal jurisdiction." Under the first division of said section as above set out, it is my opinion that unless the death of the patient in the State Hospital occurs under suspicious circumstances, there is no necessity for a coroner's inquest. Under the second.division, it is my opinion that the Milledgeville State Hospital is not a "prison" within the meaning of this Act and that where it is evident that the inmate committed suicide and there is no reason to suspect death by violence of others, there is no necessity for an inquest. We need not discuss the other two divisions of this Section. However, in cases where it does appear that there are suspicious circumstances surrounding the death of an inmate, I think it would be proper for the authorities to notify the coroner and have an inquest held, in which event, it is my opinion that the expenses of the inquest would be borne by the county in which the inquest is held.
JUVENILE COURTS-Whether City Court Judges under designation of Superior Court May act as Juvenile Court Judge
January 29, 1984
Mr. W. E. Ireland, Supt. Georgia Training School for Boys Milledgeville, Georgia Dear Mr. Ireland:
Yours of the fl6th instant, requesting an opm10n as to whether city court judges in this State, acting under appointment of the Superior Court judges of their respective circuits, have the authority to commit a child to the Georgia Training School and function as juvenile court judge, has been received.
In the case of Wages v. Morgan, 174 Georgia, page 158, it was held that in a county having a population of less than 60,000 that the commitment of a child to the Georgia Training School by a county ordinary acting as juvenile court judge by designation of the judge of the superior court was invalid because a court thus created was in violation of Paragraph 1, Section 9 of Article 6 of the Constitution of this State, which provides:
"The jurisdiction, powers, proceedings and practice of all courts or officers invested with judicial powers (except city courts) of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment, and decree by such courts, severally shall be uniform. This uniformity must be established by the General Assembly."

89
It will be noted that upon the question of uniformity of the courts of this State vested with judicial power, the Constitution makes an exception as to this requirement in the case of "city courts". Therefore, it would seem that since no uniformity is required by the Constitution as to the subject matter of city courts, any city court judge who acted in a capacity which differs from other city courts in the State of Georgia would not, for that reason alone, be acting without authority and in conflict with the Constitution, provided he has been designated as such judge in accordance with Section 900 (41) of Michie's Code of 1926, as amended by this same section in 1930 supplement. The methods by which a juvenile court may be created in the State of Georgia are provided in Sections 900 (41) of 1930 Georgia Supplement.
In counties having a population of less than 39,850 and more than 39,840, according to the Federal census of 1920, the judge of the Superior Court shall designate an existing court of record to act and be known as the juvenile court of said county. However, since in all instances "except the city court" the creation of a juvenile court in this manner would violate the uniformity provided for in our Constitution as set out in Code Section 6527, only a city court judge could act in this capacity under this provision. The next manner in which such a court may be created is:
"In all counties having a population between 35,000 and 60,000, upon the concurrent recommendation of two successive grand juries the judge of the Superior Court shall appoint a qualified person-to be the judge of the juvenile court, thus creating 'a special juvenile court'."

TRAINING SCHOOL FOR BOYS-Authority to parole inmates.

January 30, 1934

Bon. E. E. Lindsey, Chairman Board of Control
Dear Mr. Lindsey:

Your verbal request for an opinion upon the facts stated in the

letter of Superintendent W. E. Ireland, of January 27th, relative to

the authority to parole a boy committed to the Georgia Training

tSwche1ovoel

for Boys, after serving for a months, has been received.

period

of

ten

months,

or

less

than

. :tJnder Section 1239 of the Penal Code, (Sec. 77-603, Code of 1933) lt 1s provided:

"The judge committing a person to the Georgia State Training

School for Boys shall not fix a limit to the duration of the commit-

ment, .unle~s the same be for more than five years, but shall merely

comm1t s3;1d person to the Georgia Training School for Boys; but

no co~m1tment shall extend beyond the time when the person

Sceocm~~1u0tnt1e2d4~s,ha(lSlehca. v7e7-a6r0ri4v,eCdoadtetohfe

age of 21 years." 1933) provides th

at

where

the

commitment 1s for an offense punishable by imprisonment in the

40
penitentiary the person may be held for a term not exceeding five years, unless specifically committed for a longer term, and if the commitment be for a misdemeanor the person shall not be held for a term exceeding two years, unless said person arrives at the age of ~1 during the period of said commitment. Section 1~45 (Sec. 77609, Code of 1933) provides that the Board of said institution shall have authority to establish a system of parole for the inmates, and Section 1~46, (Sec. 77-610, Code of 1933) permits the board to allow a person who has reformed to serve the remainder of his term at liberty, after the expiration of one year, with the approval of the Governor.
Construing all of these facts together, it is my opinion that a child who is committed to your institution may be paroled at any time within the discretion of the board. It is customary and is a provision of the law that the commitment of a boy to the Training School is for an indeterminate length of time, and under these circumstances if rests within the sound discretion of the authorities of this institution as to just how long the child should remain a ward of the State within the confines of the institution. It is my opinion, therefore, that if the authorities of this Training School see fit to release a boy who has been committed at the end of a ten months period, they have the power to do so, and that it is a matter within their sound discretion.
STATE HOSPITAL-Authority of Superintendent to perform surgical operations on male patients
August 16, 1934 Hon. E. E. Lindsey, Chairman Board of Control Dear Mr. Lindsey:
I have your letter of August 14th requesting opinion as to whether or not the Superintendent of the State Hospital may perform a surgical operation on a male patient who is a minor with the consent of the patient's parents.
There is no statute in Georgia on this subject. Under the general rules of law, the performance of such an operation without the consent of the person operated upon, would be a tort an account of which the doctor performing such operation would be liable in damages.
I do not think the patient's parents or even the legal guardian of an insane minor can consent to the performance of such an operation upon him so as to relieve the surgeon from his liability. Of course, the consent of the parents or guardian would prevent any recovery by them for any damage which might result to them from the operation and would prevent the parents from suing for damages on account of loss of service. I think, however, that the consent of the parents or guardian could not amount to a consent by the minor or insane person, and when he became of age, or restored to sanity, he would have a right to sue for and recover on account of a tort.

41
I quote Sections 84 and 90 of the Penal Code (Sees. 26-1202 and 26-1208, Code of 1933) for your information:
"If any person shall unlawfully, and without sufficient cause or provocation, cut out or disable the tongue, put out an eye, slit or bite the nose, ear, or lip, or cut or bite off the nose, ear, or lip, or castrate, or cut, or bite off, or disable any other limb or member of another, with an intention in so doing to maim or disfigure such person, or shall voluntarily, maliciously, and of purpose, while fighting or otherwise, do any of these acts, every such person shall be guilty of mayhem." (Section 84, Penal Code.) (Sec. 26-1202, Code of 1938). "Castrating another, with the intention, or voluntarily, or maliciously, as before expressed, while fighting or otherwise, shall be punished with death; but the punishment may be commuted in conformity with the provisions of Section 63 of this Code." (Section 90, Penal Code.) (Sec. 26-1208, Code of 1933). I do not think either of these sections would be in point in a case where such an operation was performed with the consent of the parents or guardian of an insane minor. What it stated above, of course, has no reference to the case in which such operation is necessary to save the life of the patient. It would have application under the circumstances in your letter, in my opinion.
FORFEITURES-Percentage going to informer; Tax collector bidder at tax sale, also where acting as ex officio sheriff
September ~0, 19SS
Mr. Frank Hutchinson Tax Commissioner LaGrange, Georgia Dear Mr. Hutchinson:
.Your two letters of September 2nd have been duly received. I Wish to apologize for the delay in answering same, but this office tas J;leen swamped with work, due to the Public Service Commission
earmgs and other litigation in which the State is involved. A~ you probably know, I am prohibited by law from giving an official opinion to anyone about questions wherein monies of the State are not involved and the State has no interest therein. Howevhe.r, I am glad to give you my personal opinion about the questions w Ich you asked.
You refer to a Georgia law that "provided that any person who ca~sed money due the State to be paid into the Treasury would rece~ve. 25% of such money as a fee", and asked whether this law is shll .m extstence and operative. In answer to this question, I wish to ctte you to Sections 534 of the Georgia Code of 1926, (Section ~:-:906, Code of 1983); also, Sections 540, 4334 and 4370, (Sections
- 912, 8-606, 3-714, Code of 1938). Also, Section 195 of the Penal Code, (Section 26-2901, Code of 1933). These are the only

42
laws that I can find touching upon this subject, and I presume that you have these sections in mind, especially Section 540, which is as follows:
"The moneys arising from all licenses are to be paid to the County Treasurer to be used for County purposes, but one-half of moneys arising from forfeitures go to the informers." Section 4370 above referred to provides as follows:
"All actions by informers, to recover any fine, forfeiture, or penalty, shall be commenced within one year from the time the defendant's liability thereto was discovered, or by reasonable diligence could have been discovered." Also, under Section 534, it is provided:
"That any tax payer of a county may call upon any person in pursuit of any occupation for which a license must be obtained to exhibit his license, and if he fails so to do, it shall be sufficient gounds on making affidavit of the fact, to cause its forfeiture; and if, on investigation, it appears that he has such license, he forfeits the sum of $10.00 and costs." I think that this section is to be construed in connection with Section 540 above cited, and Section 4370.
You also state "thel egislature, a good many years ago passed an Act providing that the tax collector of Troup County (naming the County) should be ex officio sheriff, for the purpose of enforcing tax executions" and ask whether this Act is Constitutional and is still of force. I refer you to Code Section 1225 of the Georgia Code of 1926, (Georgia Laws 1915, p. 11). This law has been amended several times, as follows:
Georgia Laws 1927, p. 137 Georgia Laws 1927, p. 139 Georgia Laws 1929, p. 156 Georgia Laws 1931, p. 248 Georgia Laws 1933, p. 49. I do not find any reference by name to Troup County in any of these amendments, or in the original law. However, this law applies to all the counties in Georgia, under the amendment of 1933 above cited, as can be seen from the reading of said Section 1225 (958) found on page 49 of the Georgia Laws 1933, the language of which is as follows:
"Collector ex-officio sheriffs in some counties. The tax-collectors of counties which contain a population of one hundred and twenty-five thousand or more, and also all counties of said State having a population of not less than fifteen thousand four hundred and ten and not more than fifteen thousand four hundred and twelve, according to the census of 1930, shall be ex-officio sheriffs in so far as to enable them to collect the taxes due the State and county, by levy and sale under tax executions; and said tax-collectors shall not turn over any tax executions to the sheriffs, or to any other levying officials of the said State, except when it may become necessary, for the purpose of enforcing the same, to send said executions to any other county or counties than that in which

43

issued; but said tax-collectors, by virtue of their office, shall have full power and authority to levy all tax executions heretofore or hereafter to be issued by them in their respective counties; and the compensation of said tax-collectors shall not exceed fifty cents for issuing each fi. fa., and for levying and selling the same fees

as are now allowed by law to the sheriffs of said State; and said. tax-collectors shall have full power to bring property to sale, and sales made by them shall be valid, and shall convey the title to property thus sold as fully and completely as if made by the sheriffs of said counties." I also call your attention to Georgia Laws 1931, p. 253, where the tax commissioner in counties where the offices of tax collector and
tax receiver have been combined and the duties of each are exercised by an officer known as a "tax commissioner", which is made applicable to said tax commissioner, and authority given to him to act
as an ex-officio sheriff. Without copying this section verbatum, I cite you to the fact that this section is made applicable "in all counties of this State having population of not less than 12,640 nor
more than 12,650, according to the United States census of 1930, where such county shall have availed itself of the rights conferred under paragraph 1, Section 3, Article 11 of the Constitution of this State by merging or consolidating the offices of tax receiver and tax collector and creating the office of County tax commissioner", and providing further "that said County tax commissioners in such counties shall be ex-officio sheriff of said Counties in so far as to give them power to collect the taxes due the State of Georgia and their r~spective Counties by levy and sale of property under tax executiOns, etc."

The constitutionality of this law and the various amendments thereto has not been questioned, and there is a presumption in law t~at said laws are constitutional until they have been declared otherWise.

In answer to your second letter, in which you asked, "Where property is levied on, advertised and sold under a tax execution, could the tax collector issuing such execution bid on such property a~ such sale and have deed executed to him in case he was the highest bidder?" Also, you asked, "Where a tax collector is acting as exofficio sheriff in Counties where such tax collector has been named
hx officio sheriff by the legislature, can he bid at his own sale and ave a tax deed executed to himself?"

~dTehisofq1u?e2s6t,io(nSeicstiaonns2w4e-r2e8d21b,yCCodoedeofS~e9c3t3i)onw~4e9r1e8inofi~

the Georgia is provided,

. o Sheriff or deputy or other officer dtscharf!mf! a stmtlar duty

Will be permitted to purchase any property whatever at his own sale up<?n ~Is own bid, nor upon the bid of any person for him, directly

or mdll'ectly; and all such sales and deeds in pursuance thereto in-

thenalldebd to vest in such officer the title to the property so purchased s e null and void." . You .w~ll note that this section said any "other officer dischargmg a sunllar duty". It is my opinion that the tax commissioner is

44
such an officer authorized to discharge a similar duty as that of the sheriff with reference to the collection of tax executions, and therefore, said tax commissioner could not bid on, purchase or execute a deed at said sale to himself. Such deed would be null and void.
Trusting that this is the information which you desired, and reminding you that it is unofficial, I am
CONVICTS-Definition of felony convict September 19, 1934
Hon. D. C. Jones, Solicitor City Court of Statesboro Statesboro, Georgia Dear Sir:
I have yours of September 13th requesting an opinion as to whether ' a defendant who is charged with a felony and found guilty as charged but the jury recommends that he be punished as for a misdemeanor and this recommendation is followed by the court and the defendant is sentenced to serve six months on the chain gang, such convict is to be considered a felony or a misdemeanor convict.
Under the law my duties are restricted to the official business of the State. However, I am glad to give you my personal views on this matter.
Penal Code Section 1062 (Section 27-2501, Code of 1933) provides that on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, certain crimes may be punished as misdemeanors. As was said in the case of William v. Cooley, 127 Georgia 23,
"Where one is placed on trial for a felony, it is the indictment that gives character to the charge against the accused." It is also my opinion that the indictment gives character to the status of the offender upon conviction. Under an indictment for a felony, the defendant cannot be convicted for a misdemeanor. Consequently, when a defendant is convicted on a felony indictment, he is a felony convict, notwithstanding the fact that a jury might recommend that he be punished as for a misdemeanor. Section 1062 is one of a forgiving character and looks only to leniency to the defendant after trial and after his guilt has been established. What happens after his guilt has been established as to sentence and punishment cannot vnry his status as a felony convict. See also Wells v. State, 116 Ga. 87. Trusting that is the information desired by you, I am
PROBATION-Whether county probation officer may rearrest parolee without warrant and after rearrest is parolee entitled to a hearing October 23, 1934
Mr. Harry E. Pape
Probation Officer, Bibb County Macon, Georgia Dear Mr. Pape:
I have yours of the 22nd instant requesting an opinion as to

45
whether a county probation officer may rearrest a paroled prisoner who has been placed under his supervision by the Prison Commission without first obtaining a warrant from the Prison Commission; and whether where a paroled prisoner is rearrested he is entitled to a bearing, or whether the revocation of his parole is entirely discretionary with the Prison Commission.
Under the law I am restricted to advising the Governor and the heads of the various departments of the State Government, and what I say below will of necessity have to be considered unofficial and merely an expression of my personal views on the question asked.
Your are familiar with the Act of 1913 (Georgia Laws 1913, page 112) which gives the courts a right to so mould their sentences as to allow persons convicted of misdemeanors, or felonies reduced to misdemeanors, to serve their sentences without the confines of the chain gang, jail or other place of detention. This Act also makes provision for voluntary and county probation officers, prescribing their duteis. In Penal Code Section 1081 (3), (Section 27-25fl4, Code of 1933) it is provided:
"In so far as necessary to the performance of their official duties, probation officers have all the powers of police officers." Also under Penal Code Section 1081(4) the probation officer may arrest without a warrant a probationer who does not meet the requirements of his probation. It is my opinion that the authority of the probation officer to make such an arrest without a warrant applies only to those cases in which the probationer has been paroled under the authority of the courts prescribed in the Act of 1913. In other words, a county probation officer's authority to make an arrest is limited to those cases where the custody and supervision of the probationer is still within the jurisdiction of the trial court, and does not extend to those cases where the Prison Commission has custody and supervision of a convict serving a sentence on parole.
In the later case, where a prisoner is on parole due to an order of the Prison Commission and the Governor, as provided by Penal Code Section 1225, (Section 77-504, Code of 1933) his rearrest for the violation of the provision of the parole should be consummated under the authority of Peanl Code Section 1226, (Section 77-505, ~ode of 1933). This section gives authority to the Prison Commisswn to issue its order for the rearrest of such prisoners and when su~h .order is duly certified by the Commission it becomes a criminal ~r1t m the hands of "any arresting officer" in this State, whose duty It shall be to execute the same as any other criminal process and to ~rrest the body of said prisoner and again to return him to the Phmtentiary under the order of said Commission. It is my opinion t at a county probation officer is not "an arresting officer" within ~he meaning of this Statute, and could not arrest a person paroled Y !he Prison Commission and Governor whether acting under a cer!1fied copy of the order for the rearrest of such prisoner or whether actmg under other warrant.

46
Under the provisions of the last sentence of Penal Code Section 1226, it is my opinion that a prisoner paroled under the authority of the preceding section may be returned to the penitentiary without a hearing, for the statute provides:
"When any paroled prisoner is rearrested on order of said Commission for violation of the conditions of his parole, or otherwise, he may be required by said Commission to serve the remainder of his original sentence." Thus you will see the statute does not require a hearing although it would be proper to accord the prisoner a hearing where the rearrest is for violation of the conditions of his parole, in order to ascertain whether such a violation has occurred. This hearing, of course, to be before the Prison Commission. Trusting this is the information desired by you, I am
BANKS-Priority of tax claims in liquidation of insolvent banks
January 10, 1934 Hon. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
The recent decision of the Supreme Court in the cases of Collier, Sheriff, et al v. Gormley, Superintendent of Banks, and City of Atlanta et al v. Gormley, Superintendent of Banks, seems to clarify the law as to the priority of tax claims in the liquidation of insolvent banks.
The first headnote of this decision is as follows: "1. Section 19 of Article 7 of the banking act of 1919, as amended by the act of 1927 (Ga. Laws 1927, p. 199), merely prescribed the order of paying debts due by an insolvent bank, and was not intended to affect the validity or priority of a lien against property conveyed by the owner and lienee to the bank as security." The material part of the second headnote is as follows:
"2. Where property conveyed to a bank as security for a debt became subject to a valid and superior tax lien against the bank's debtor, the fact that the bank was thereafter seized by the superintendent of banks as an insolvent institution would not prevent the enforcement of the tax execution by a levy and sale of the property thereunder, where possession of the property was not taken by the bank or the superintendent of banks before the levy of the execution."
Under this decision it is my opinion that taxes which have accrued against a person who has deeded property to a bank to secure an indebtedness, whether the taxes accrued before the bank became insolvent or afterwards, are a lein against the property conveyed to the bank superior to the rights of depositors. In the body of the decision the court says:
"Although the legal title had been conveyed to the bank as

47
security for an indebtedness, the complete title was nevertheless subject to taxation as a whole." If taxes have accrued against property over which an insolvent bank in liquidation holds a deed to secure debt, and the bank has not actually foreclosed such deed or taken the property into actual possession, the tax authorities may levy upon and sell such property as the tax claim is superior to the claim of the bank; but if the bank has foreclosed or otherwise taken possession of the property before the tax claim is asserted, and the property is in possession of the Superintendent of Banks as a statutory receiver, the taxing authorities cannot levy upon the property or sell it at a tax sale. In such case the tax collector would have a remedy by presenting a claim for the taxes to the Superintendent of Banks whose duty it would be to allow the claim and apply the proceeds of the property, first, towards the payment of the same, the remainder, if any, to be appropriated to the payment of debts due by the bank in the order prescribed by law. Taxes due by the bank itself are inferior to the claims of depositors, but this recent decision makes it clear that taxes due by the owner on property merely deeded to a bank to secure an indebtedness are not debts of the bank and are not in the same class as taxes actually due by the bank on its own return of its capital or real estate. It seems to me that there are three different classes into which tax claims against insolvent banks fall, as follows: 1. Those taxes on property simply held by a bank as security for a debt, which property has not actually come into the possession of the bank, and these can be collected in the ordinary way. 2. Those taxes due on property by the former owner, which property has actually gone into the possession of the Superintendent, and these can be collected, not by a levy and sale of the property, but by a claim duly filed with the Superintendent of Banks. 3. Those taxes due by the bank in the first instance. These are not superior to the claims of depositors where a bank becomes insolvent and is liquidated by the Superintendent of Banks. Until and unless depositors are paid in full such taxes cannot be collected.
TAXATION-Exemption of veterans from occupation taxes
March 31, 1933 Ron. W. B. Harrison Comptroller General Dear Mr. Harrison:
~n response to your request that we advise you with reference to claun of tax exemptions by veterans as outlined in the original letter handed to us from Mr. A. E. Davison, Tax Collector of Clarke Com;tty, said letter bearing date of March 30, 1933, in which Mr. Davison states that he has from the Ordinary a certain certificate reading as follows: "Georgia, Clarke County.

48
This is to certify that Augustus B. Bryant of said State and County has submitted proof in writing from the U. S. Veterans Bureau that he served in the recent World War and was honorably discharged and that he has a disability for which he is drawing compensation.
This certificate is made in compliance with said proof and under Code Section 1888 as amended by Act of General Assembly of 1929. This 12th day of May, 1922."
He desires to know whether or not the certificate is sufficient to exempt the veteran from the payment of the barbershop tax imposed under the General Tax Act.
Mr. Davison states that the Ordinary's certificate simply certifies that the Bureau certified that the veteran had a disability in 1928 but does not certify that he is now disabled.
In the opinion of this department the right of a disabled or indigent soldier to conduct business in a town or city without paying license for the privilege of so doing is based upon the fact that the owner of the business is a disabled or indigent soldier, and not on the certificate of the Ordinary. Of course the certificate of the ordinary is intended to furnish such proof of that fact but where such certificate does not furnish prima facie proof of present disability, I am of the opinion, that the Tax Collector is not required to recognize the ordinary's certificate.
In the case of Fairburn v. Edmondson, 166 Ga. 386, Judge Hines, of the Supreme Court, said: "A certificate from the Ordinary of the County, stating the facts of his being such disabled or indigent soldier, shall be sufficient proof thereof. The right of a disabled or indigent soldier of the late European war to conduct business in a town or city without paying license for the privilege of so doing is based upon the fact that the owner of the business is such soldier, and not on the certificate of the Ordinary, which is intended to furnish such proof of said fact, and not as a condition precedent of the exercise of the right." Citing
Coxwell v. Goddard, 119 Ga. 369. In the case of Jones, v. Macon, 36 Ga. App. 97, Judge Luke, speaking for the Court of Appeals held that a license obtained from the Ordinary in 1922 on the ground of an indigent soldier was not proof of the continued disability in 1926. He said: "Bein~ an indigent soldier was the basis of his claim of exemption from paying a license ... There is nothing in the Act which provides for exemption years after the indigency or cause of exemption ceases to exist. The Act provides that a certificate from the Ordinary stating the fact of his bein~ (not having been in the past) such indigent soldier shall be sufficient proof ... This

49
provision in the Act as to a certificate being sufficient proof does not render inadmissible evidence as to present indigency or lack of it." Therefore, it is the opinion of this department that before a person is entitled to the exemption under Code Section 1888 (Section 84-2011, Code of 1933) as a disabled or indigent soldier he must be such disabled or indigent soldier at the time the exemption is claimed. That the exemption is based upon the fact that he is such disabled or indigent soldier and not on the certificate of the Ordinary. That before the Tax Collector would be authorized to recognize such certificate from the Ordinary it should state the fact of the soldier's bein~ disabled or indigent and that when the certificate merely certifies that such disability existed in the past it is not sufficient. I am inclosing herewith Mr. Davison's original letter. Trusting that this will give you the desired information, I am

TAXATION-Procedure for exemption of veterans from taxation

Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:

April 1, 1933

Your letter of March 30th inclosing an original letter from Mr. J. L. Cabell, Tax Collector of Chatham County, and in which you
request that we give you an opinion on the three paragraphs of Mr.
Cabell's letter as follows:
Question No. 1. Whether an affidavit can be acquired from a disabled veteran showing that he is entirely responsible for the business which he operates?
Answer: Yes, and such an affidavit should be required. The exemption contemplated under Section 1888 (Section 84-2011, Code of 1933) applies to the business of the exempted veteran only and before the exemption would apply the authorities would be authorized in ascertaining whether or not the business for which he claims exemption is his own.
Question No. 1!. Whether a veteran can be in the employ of a person, firm or corporation, and carry on a business and be exempt from the payment of the tax required for that class of business?
.!lnswer: This would necessarily depend upon the fact of the disability of the veteran and upon the nature and character of the business carried on as well as upon the further fact as to whether or not the business thus carried on is in fact owned by the disabled veteran. The law does not restrict such disabled veteran to the ope~ation of one business alone but he may operate more than one busmess and if he is entitled to the exemption at all, as a disabled vet~ran, he would thereby be entitled to exemption on any business whiCh he conducts or operates. The fact of the veteran's regular employment by the corporation, where. such employment requires all t~e veteran's time during the week for his employer, might be considered by the authorities in determining whether or not such

50
veteran would be entitled to any exemption at all, and this fact should have considerable weight in determining the question of disability. In this connection, we are of the opinion that the certificate should specify and name the business which the veteran is authorized to conduct. Employees of disabled veterans are protected by the certificate and can not themselves be called upon to pay the license.
Anglin v. The State, 12 Ga. App. 159; Hartsfield v. Columbus, 109 Ga. 112; but see also the case of Smith v. Whiddon, 138 Ga. 471, and the case of Woodson v. Paulk, 139 Ga. 783. The last mentioned case distinguishes the Hartsfield case in 109 Georgia from the Smith case in 138 Georgia and in reconciling these cases recognizes a difference between the meaning of the words "conductin~ business" and "peddling", and rules that "peddlin!ff" is not covered by "bnsiness" as used in Section 1888 and substantiates this rule by the fact that both words are used in this section. In the Smith case it was held that one who actually travelled as a vendor of patent medicine is liable for the tax provided for under the General Tax Act, although he may not be the proprietor of the articles sold or of the animals and vehicles by means of which the articles are transported from place to place, and although he may be acting only as the agent and employee of a disabled or indigent Confederate veteran, who, under the provisions of Paragraph 1888 of the Civil Code is authorized to peddle without obtaining license for the privilege of so doing. Therefore, the exemption from peddler's license is personal to the veteran and should not be extended so as to include employees. This does not apply with reference to a business such as automobile garage, being operated by the veteran. Aside from what has been stated above in answer to the second question we call your attention to the fact that there are certain occupation taxes from which no one is exempted, made so by the Act itself, and also call your attention to the fact that Section 1888 also provides that this section shall not authorize peddling or dealing in certain businesses therein specified and provides that the privileges hereby granted shall not be transferred to or used by any other person.
Question No. 3. Whether a veteran can operate more than one business on the exemption and whether a certificate issued today relieves from any tax due at a prior date?
.!1nswer: The first part of the above question has been answered above. Since the certificate is only evidence of disability, and since disability itself is the ground of exemption and the certificate when issued can only be evidence of disability existing at that time

51
and would not relieve the veteran from the payment of any tax due at a prior period. It must be borne in mind, however, that disability is the ground for exemption and not the certificate. The certificate is only intended as proof of existing disability on the date of its issuance.
Mr. Cabell's original letter is returned herewith.

TAXATION-Duties of Ordinary m connection with veteran's exemption

March 81, 1988

Ron. W. B. Harrison

Comptroller General Dear Mr. Harrison:

In reply to your letter of March 80th inclosing an original letter from A. E. Davison, Tax Collector of Clarke County, I wish to

advise as follows: Mr. Davison states in his letter that the Ordinary of his county

takes the position that when a veteran presents a certificate from the Veterans Bureau that it becomes his, (the Ordinary's) duty to

issue a certificate relieving the veteran of taxes but that the certificate issued by the Ordinary does not certify that the veteran is dis-

abled but simply certifies that the veteran has a certificate from the Veterans Bureau.
Mr. Davison asks four questions which we will take up in the order that they appear in his letter.
Question JVo. 1. Has the Ordinary the right to decline to issue

certificate where there is no visible disability?
.!lnswer: Yes, if the Ordinary believes that the soldier is not disabled or indigent at the time he applies for a certificate of exemption it is his duty to decline to issue such certificate. If in fact the
veteran is disabled he has a right to contest his liability for the tax

imposed either by injunction or illegality. See
Coxwell v. Goddard, 119 Ga. 869. See also

Dasher v. City of Valdosta, 172 Ga. 589;
City of Marietta v. Brantley, 170 Ga. 258.

. Question JVo. 2. Has the Tax Collector a right to refuse free hcense unless Ordinary's certificate certifies disability?

.!lnswer: Yes, not only has he the right but it would be his duty to refuse the exemption in the absence of the certificate from the Ordinary certifying disability unless he knows of his own knowl-

edge of the veteran's disability. In which event, he would be

authorized to grant the exemption. The exemption is not based

upon the certifica.& but upon the evidence of disability or indi-

gency.



5!l

Question No. 3. Does the law intend to only relieve those of

taxes who are physically unable to do ordinary work?

.Answer: Under the statute any disabled or indi!}ent soldier

who is a resident of this State, may peddle or conduct business in

any town, city, or county, etc., without paying license. This

exemption is applicable to those either disabled or indigent, and it

does not have to appear in a given case that the soldier is both dis-

abled and indi!}ent and in such case it might not appear that

the person's disability, provided he has such disability, was brought

about by service in the army. See

.

Halloman v. Hawkinsville,

109 Ga. 107

See also

City of Macon v. Samples,

167 Ga. 150.

Webster's New International Dictionary defines the word "indi-

gent" as follows:

"1. Wanting; lacking; deficient; also, void; free; destitute.

2. Destitute of property or means of comfortable subsistence;

needy; poor; in want; necessitous."

Therefore, any such soldier who is indigent is likewise exempt.

Question No. 4. Should the Tax Collector recognize anything

other than the Ordinary's certificate of his County?

.Answer: The Act provides that the certificate of the Ordinary

shall be deemed to be sufficient proof when such certificate certifies

as to disability or indigency, and the tax collector would be author-

ized to recognize such certificate. In the absence of any certificate

at all if in truth and in fact such soldier is disabled or indigent and

the Tax Collector, of his own knowledge, is satisfied that such dis-

ability as exempts such soldier exists he might exempt him from the

payment of the taxes. However, since the law provides that the

certificate of exemption shall be issued and signed by the Ordinary I do not think it would be the duty of the tax collector to assume

the responsibility of passing upon the disability or indigency and

he would be authorized to refuse to grant the exemption. The

soldier could prevent the enforcement of the tax fi. fa. issued, if he

is in fact exempt, because of disability or indigency, by proceeding

to enjoin the enforcement of such fi. fa. See the case of

City of Macon v. Samples,

167 Ga. 150.

I am returning herewith Mr. Davison's original letter.

TAXATION-Duties of Tax Collector under Accounting Act
April 17, 1988 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of April 14th asking for a construction of Sec-

53
tion 10 of the Act approved March 16, 1933, relating to bonds of county officers.
Section 10 of that Act requires that: "Annually on or before April ~Oth each year each Tax Collector shall make and file an accounting with the Comptroller Gent;ral as to State taxes and with the County authorities of his County as to County taxes for the preceding year." You submit the following questions: Question No. 1. If a Tax Collector makes the accounting, as required, lists the uncollected items and states the reason that same are uncollected, what disposition is to be made of such uncollected items?
Answer: Under the law of force prior to the approval of this Act, as embodied in Section 1~45(4) of Michie's Code of 19~6, Tax Collectors were required to make final settlements with both the State and County within four months from December ~Oth of the year in which taxes became due, and upon failure of any tax collector to make such final settlement he forfeited one-fourth of his commissions unless some good and sufficient reason which rendered the making of final settlement impossible was given. The final settlement contemplated by the section just referred to was a complete settlement of all the accounts of the Tax Collector. In such settlements he was required to account for all the taxes charged to him on the digest either by paying over the necessary amount of money, or showing that he had already paid the same over, or by showing that the tax was insolvent and producing an entry of nulla bona by a levying officer as evidence of such insolvency, or by a showing that the tax had been erroneously assessed and the error had been corrected by the proper authority.
Under the provisions of Section 10 of the Act approved March 16, 1933, the accounting required to be filed with the Comptroller General as to state taxes and with the county authorities as to county taxes is not such a final and complete settlement as was contemplated by Section 1~45(4). Under Section 10 the tax collector is required to fully state his accounts and list in details uncollected items on the digest, setting opposite each of them the reason why the same has not been collected and the name of the ?fficer holding the tax executions, or if no execution has been Issued, the reason why it has not been issued, and such further information as the Comptroller General shall require. If it is found that all collections made to the date of the accounting have been properly accounted for and order to that effect is entered; but if It appears that there has been a default in accounting for collections made the tax collector and his sureties shall be promptly cited to make good the default. Thus the accounting becomes final as to collections which have already been actually made. The Comptroller General and the county authorities are given authority to correct errors in the digest and to order abatement or cancellation of ~axes erroneously assessed, giving the tax collector credit for such Items. As to all uncollected items which are not relieved against,

54
that is which are not found to be erroneously assessed, it is the duty of the Comptroller General or the county authorities to ascertain whether the failure to collect all or any part of such uncollected items has been due to negligence or bad faith on the part of the tax collector. If the authorities find such evidence of bad faith or negligence they shall cite the tax collector and his sureties as in case of default. If they find no such evidence of bad faith or negligence, the accounts of the tax collector shall be approved. If they find that as to some items the tax collector has been guilty of negligence or bad faith, and as to other items standing uncollected as shown by the accounting he has not been guilty of negligence or bad faith, the Comptroller General or county authorities shall approve the account as to the items with reference to which there has been no negligence or bad faith, and disapprove as to items with reference to which there has been negligence or bad faith. The order of approval or disapproval setting forth the reasons therefor. It will thus be seen that in the accounting the tax collector is entitled to credit (a) for monies actually collected, (b) for items uncollected which are relieved against as being erroneously assessed or for similar cause, (c) as to items uncollected, and not relieved against with reference to which the tax collector has not been guilty of negligence or bad faith. He is not entitled to items not relieved against with reference to which he has been guilty of negligence or bad faith. With reference to these items he is in default and with his sureties may be cited therefor as provided by the Act. With reference to the items uncollected, and as to which he has been guilty of no negligence or bad faith, he is not in default. As to these items the tax collector sufficiently accounts for them by the showing made and approved by the Comptroller General or the county authorities. Since such items, however, are then uncollected the tax collector is not entitled to final credit therefor, but is only entitled to credit to the extent that he has shown the status of such items and accounted for them by showing that the failure to collect them has been due to no negligence or bad faith on his part. It remains the duty of the tax collector to collect these uncollected items and to account for the collections made on such items when such collections are made, and he must continue to exercise the degree of diligence and good faith required by the Act with reference to such items.
Answering Question No. 1 specifically it is my opinion that all uncollected items as shown by the Accounting, with reference to which the tax collector has been guilty of no negligence or bad faith, shall be returned to the tax collector for collection by him.
This construction is borne out by the language of sub-section c of Section 10 with reference to uncollected items in case the tax collector has been succeeded in office by another person.
Question No. 2. If at the time of such accounting approximately 50% of the digest charge is uncollected, what will be the method or procedure after such items are listed as uncollected and the reason given for such failure to collect?

55

Answer: This question is answered by what is stated in reply to question No. 1.

Question Jlo. 3: In this accounting shall credit to the Tax Collector be allowed for any items not shown to be nulla bona,

error on digest, or defaulters relieved?

.

Answer: This question is also answered by what is set forth in

reply to Question No. 1.

Question Jlo. 4: If an accounting is had at April 20th or shortly

thereafter and a good percentage of the taxes are uncollected, when

may another account be required? In this connection see Paragraph

B of Section 10-and also see Section 13.

Answer: In my opinion further account may be called for by the Comptroller General whenever in his opinion the same is necessary or proper. Section 1236 of the Civil Code provides as follows:

"The Comptroller General has authority to make all needful
rules and regulations for the government of tax collectors and re-
ceivers, and any other rules that may be necessary to insure the prompt and faithful execution of the laws, if not in violation of

or inconsistent therewith." This section is not affected by the Act approved March 16, 1933, except in so far as the provisions of that Act might conflict with any

regulation of the Comptroller General. Section 13 of the Act of March 16, 1933, sets forth the circum-
stances under which a tax collector or surety on his bond shall not be

liable for failure to collect any state or county taxes. With especial

reference to division B of Section 13 which provides: "Or that the tax collector with ordinary diligence issued execution and placed it in the hands of the sheriff or other officer having power to levy the same, and that failure to realize the money thereon was due to no fault of such tax collector;"

I am of the opinion that such items should be accounted uncollected items with reference to which the tax collector has been guilty of no negligence or bad faith, as referred to in the reply to Question No. 1. These items will remain under the control of the tax collector, and it remains his duty to account for them when they are collected and paid over to him by the levying officer, and it remains his duty to exercise ordinary diligence to the end that the levying

?fficer may do his duty and collect such items. When an item is msolvent and the insolvency is evidenced by a nulla bona entry of a levying officer, in my opinion, the tax collector is entitled to take

credit therefor as if he had collected the money, although, of course,

he would be entitled to no commission thereon.

. Question Jlo. 5: After an accounting, as provided for in Secbon 10 is had, and fi. fas. uncollected are still in the hands of the

Tax Collector, would the fact that a full accounting was not had at April 20th have any effect as to liability of the Tax Collector and

his Sureties for the collection of those items reported as uncollected at the date of the accounting submitted.

.1nslfJer: In my opinion the accounting required to be made on April 20th of each year, unless the time be extended by the Comp-

56
troller General is a full accountin~. It is not, however, a final accounting in the sense that the accounts of the tax collector are completely settled. It is only a final accounting pro tanto, that is, to the extent that the tax collector may account for the digest charged to him by showing that he collected the money, and account therefor, or by showing that taxes erroneously assessed, or by showing that taxes which are insolvent as evidenced by entry of nulla bona. As to other items with reference to which the tax collector has been guilty of no negligence or bad faith the accounting is full in that the status of each such item is shown but it is not final and complete since, as I construe the Act, the tax collector continues responsible for such items. Of course, with reference to uncollected items as to which the Comptroller General or the county authorities may find that the tax collector has been guilty of negligence or bad faith, the tax collector is in default and may be cited with his surety to pay these amounts.
In my opinion, the fact that uncollected items with reference to which the tax collector has been guilty of no negligence or bad faith are not then settled for by the tax collector, would not relieve the tax collector or the surety on his bond of liability on account thereof.
I trust that this gives you the information you desire.

TAXATION-Depositories for public funds

Hon. Wm. B. Harrison Comptroller General

May 6,1933

Dear Mr. Harrison:

I have your letter of May 3rd requesting an opinion on the following questions:

"1. Whose duty is it to name the Depositories called for in this new law?
"!l. Shall a Depository so named be a separate Depository from

the Depository named for the care of funds deposited in the name of the State Treasurer?"

Section 6 of the Act approved March 16th, 1933, deals with depositories for public funds. This section, in brief, authorizes the county authorities to designate one or more solvent banks as depositories of all county monies, including funds belonging to the Board of Education, school districts, etc. With .reference to State funds the provision of this section is as follows:
"All funds belonging to the State or any of its bureaus, commissions, boards, and/or departments shall be deposited in some designated state depository."

It is my opinion that the term "designated state depository" means a depository appointed by the Governor as a State depository

under the authority conferred by Section 1249 of the Civil Code of 1910, as amended. (Section IOQ-101, Code of 1933).

It is further my opinion that no other State authority is em-

57
powered by the Act in question to appoint or designate a depository for state funds. It is further my opinion that the language of Section 6 that, "and if there be no applicable depository selected, the officer collecting or holding any public funds may select a depository," has no reference to State funds but applies only to county funds.
It will be noted, however, that Section 6 contains further provi- . sions as follows:
"The proper authorities shall require the depository to give bond or make deposit of securities in trust to secure such deposits as may be made in it. Any bank in this State is authorized to give such bond and/or to secure deposits of public funds by deposits of securities; and the proper authorities are authorized to make contracts with depositories as to interest or compensation of the depository." It is my opinion that under the language just quoted any proper authority of the State as designated by Section 2 of the Act may arrange to deposit the funds under the control of such proper authority in any regularly appointed State depository, and may require such State depository to make a bond or secure the deposits as authorized by Section 6. It is further my opinion that the bond to be made under Section 6 by any State depository is in addition to any bond which it may have already executed under the provisions of Sections 1249, et seq., of the Code to secure deposits made with such depository by the State Treasurer, and that funds deposited in any such depository under Section 6 should be deposited under such additional bond and not under the bond executed to secure deposits made by the State Treasurer. With especial reference to your Department, in my opinion, you are authorized to require any bank in this state which is a qualified state depository to receive monies collected by the tax collectors, or other officers collecting state funds under the supervision of the Comptroller General, and to require such bank to qualify to receive such funds as provided by Section 6. However, your discretion with reference to the selection of such depository is limited to the banks which have been designated as State depositories in conformity with law. Trusting this gives you the information you desire, I am
TAXATION-Authority of county board of commissioners to turn over uncollected tax fi. fas. to an attorney for collection
May 8, 1933
Hon. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
Your letter of May 6th inclosing an original letter from Mr. Gus Starke, Tax Commissioner of Walton County, is acknowledged.
Mr. Starke states that he was elected Tax Commissioner of Wal-

58
ton County for the term beginning January 1, 1983, and to succeed Mrs. Briscoe.
He also states that the County Board of Commissioners passed a resolution authorizing all uncollected taxes to be turned over to an attorney for collection and authorizing the attorney to receive a commission for collecting these taxes; that Mrs. Briscoe had not made a settlement with the Board of Commissioners and had not turned over the fi. fas. to any one; that all uncollected taxes remained in her hands up to the present time.
Mr. Starke desires information as to his rights in the matter.
Under Sub-section C of Section 10 of Senate Bill No. 128, passed at the recent session of the Legislature, it is the duty of Mrs. Briscoe as the outgoing tax collector who has been succeeded in office by Mr. Starke to make a list of the uncollected items of tax appearing in her account as outgoing tax collector and as given in the accounting had with the Comptroller General, and which shall be furnished by the Comptroller General to the incoming tax collector. It is provided by this Section that it shall be the duty of the incoming tax collector from thenceforth after the taxes are collected to pay the outgoing tax collector one-half of the commissions and to retain for his services one-half. It is also provided that the outgoing tax collector shall no longer have the right or the duty to collect the taxes and to enforce executions issued therefor, but all of such uncompleted duties shall pass to his successor.
Under the provisions of the above Section it would seem that it is the duty of the outgoing tax collector to retain all items until the time of the settlement referred to in Section 10 of said Act and that after such final settlement and accounting of uncompleted duties in respect to the collection of prior taxes shall pass to the incoming tax collector.
The tax collector is held responsible for the collection of taxes and must make final settlement and accounting in accordance with the provisions of the law and according to the provisions of the Act above referred to.
Reference is hereby made to my letter to you under date of April 17 with respect to the construction of Section 10 of the Act which relates to annual settlements of taxes collected, with the Comptroller General.
Since the responsibility is upon the tax collector for the collection of these taxes he should assume all of the uncompleted duties with respect thereto after the settlement and accounting with the outgoing tax collector. It is his duty to collect these taxes and under the provisions of the Act he is entitled to one-half of the commissions on such items as he collects.
I think the above, if taken in connection with my letter of April 17th to you, will give Mr. Starke the desired information.
I am returning the original letter of Mr. Starke herewith.

59
TAXATION-Taxable situs of live stock
May 2~. 1933 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of the 19th inclosing a communication from Miss Eva Stephenson, Tax Receiver of Newton County, in which she requests information with reference to the taxable situs of live stock located on farms belonging to the owner of such personal property, and situated in different counties.
The general rule relating to the taxable situs of taxable property is contained in Section 1075 of the Civil Code of 1910 (Section 926208, Code of 1933) and is as follows:
"All other companies or persons taxed shall make their returns of personal property to the receiver of the respective counties where the persons reside, or the office of the company is located, except that all persons, companies, or corporations conducting any business enterprise upon realty not taxable in the county in which such persons reside, or the office of the company or corporation is located, and shall return for taxation their stock of merchandise, raw material, machinery, live stock, and all other personalty employed in the operation of said business enterprise, together with the manufactured goods, and all other products of such enterprise, and the notes and accounts made and the money used in the prosecution of such business enterprise, on hand at the time for the estimation of property for taxation, including all personalty of whatsoever kind connected with or used in said enterprise in any manner whatsoever, in the county in which is taxable the realty whereon such business enterprise is located or carried on; provided, that the provisions of this section shall not apply to those corporations required by law to make their returns to the comptroller general." Under this section it is my opinion that live stock employed in ~he operation of a farming enterprise conducted upon land situated m a county in which the owner does not reside, should be returned for taxation in the county in which such land is situated.
TAXATION-Who pays for advertising when property sold for taxes bought in by county
June 13, 1933 Ron. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of June 9th, enclosing a communication from Ron. Elbert Forester of Trenton, Georgia, in which he submits to you the following question:
"If a piece of property is advertised for its taxes and the County buys the property at regular sale, are they not liable for the cost

60
of advertising, and if so, should this cost not be paid immediately after such sale? The County, you understand, buys the property at the amount of taxes due on it." The relevant provision of law is contained in Section 1178 of the Civil Code of 1910, (Section 9f2-8201, Code of 1933) which is 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 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 cost. Said county authorities, upon bidding in any property as herein provided, shall draw their warrant on the county treasurer to pay to the officers the costs due on said tax fi. fas., and accruing costs in effecting said sales." In my opinion, under the quoted provision of the statute, it is encumbent upon the county authorities when they bid in property sold at tax sale for the County, to draw their warrant on county treasurer to pay to the officers the cost due on the tax fi. fa., including the cost of advertising the sale. I think this is especially true in the case referred to by Mr. Forester, where, as I understand his letter to you, the amount paid for the property covered the taxes due on it, and I judge also the amount of the cost. In this opinion, I have not gone into the question of the circumstances under which county authorities may bid in property offered for sale under tax fi. fas., or the amount of the purchase price, at which the County may buy the same, nor have I gone into the effect of any redemption of the property purchased by the County, in relation to the right of the County to make a subsequent levy of the same tax fi. fa., in the event the amount bid at the previous sale did not cover the taxes. These questions do not relate to the matter submitted to you by Mr. Forester, and since it seems that there was a ruling by my predecessor on these questions, I do not deem it proper to deal with them, until they arise with reference to some question which it is necessary to determine.
TAXATION-Duties of Board of Tax Equalizers
August 11, 1933 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
This letter is in reply to yours of the 9th instant in which you enclose a letter from the Tax Collector of Seminole County, Georgia,

61
and also a copy of an opinion of the County Attorney of that county on the question involved.
The question involved is one dealing with the duties of County Tax Equalizers.
It seems that the equalizers for Seminole County, after they had finished their work of equalizing the taxes as required by law, passed some kind of resolution which made a blanket reduction of 15% on all tax returns of the county. It appears that the County Attorney advised the Tax Collector that this resolution was without authority of law and not binding on him. Now, the Tax Collector desires to know if he should proceed with the making up of his digest and disregard the resolution. He says that he has not seen the resolution and that a copy thereof has not been given him.
The statute provides that the members of the County Board of Tax Assessors shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the Board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the said Board shall correct such returns and shall assess and fix the just and fair valuation to be placed on said property, and shall make a note thereof and attach the same to the returns. It is made the duty of said Board to see that all taxable property within the county is assessed and returned at its just and fair valuation, and that the valuations as between the individual taxpayers of the county are fairly and justly equalized.
When any such corrections or changes are made it is the duty of the Board to notify the taxpayer of any changes made in his returns. The above mentioned provisions will be found in Code Section 1116 (11) Michie's Code. (Sec. 92-6308, Code of 1933) . . By the provisions of Section 1116 (13) the Board is given the rtght to provide by rule or regulation the manner of ascertaining the value for taxation of any property not appearing in the digest of the preceding year and in cases where there has been a change in ownership from any cause.
The Board of Tax Assessors are given full power and authority to correct tax returns; seek out and assess property which hasnot been returned; to fix the just and fair valuation to be placed on said property for taxation and to see that all property is returned at its JUst and fair valuation and to see that valuations as between indiyidual taxpayers is fairly and justly equalized. When any change Is made in any return notice must be given the taxpayer etc.
It appears from the facts stated that after this work had been ?one by the equalizers, that this Board passed some resolution makmg a. blanket reduction of 15% on all the returns and that no notice of this change was given the taxpayer. The County Attorney was, no doubt, in possession of all the facts when he rendered his opinion to the Tax Collector. h Un?e~ the facts submitted, it is the opinion of this Department t. at It. Is the duty of the Tax Collector to proceed to make up his dtgest m accordance with the returns, as they stand after the Board

has finished its work of equalization. He would, of course, not be required to observe any resolution which had not been placed with him officially. He should follow the ruling of the County Attorney in this respect.
When the Board makes changes in the returns it must give notice. I don't know of any law authorizing them to finish the work of equalization and then by resolution make a blanket reduction on all returns.
TAXATION-Failure to return poll taxes subjects defaulter to double taxation
November 20, 1933
Hon. W. B. Harrison Comptroller General My dear Mr. Harrison:
Your inquiry of recent date received. You desire to know whether the tax officers have a right to charge $1.00 for the collection of delinquent poll taxes as a double tax where the taxpayer makes no return. You state that certain officers are charging $1.00 for the poll tax, $1.00 for double tax on account of default, 50 fi. fa. fee, and 50 settling fee. You desire to know whether these charges are legal.
Your question seems to be answered under Code Sections 1105, 1106, 1107, ll08 and 1109, of Michie's Code of 19~6. (Sections 92-6601, 92-660~, 92-6607, 92-6608 and 92-6609, Code of 1933). By reference to these Sections it is clear that the penalty for not making a return is only imposed in the event that a person has property which he does not return and it is not imposed for the failure to pay the poll tax. Section 1106 provides as follows:
"If there is taxable property, real or personal, in a county, that to the satisfaction of the receiver, when he comes to conclude his digest, is not returned by any person, and he does not know the owner or possessor, it is his duty to assess and double tax it, describing it particularly; and the same power is conferred on the tax collector as to such property, when not assessed, or overlooked by the receiver." By reference to all of the above cited Code Sections, it seems clear that it was only the intent of the Legislature to impose a penalty for failure to return property and not for any failure to pay poll tax. In the case of White v. The State, it was held where one has duly given in all his taxable property, to the tax receiver, at its proper value, and the tax collector assessed a double tax against him for other property which the taxpayer does not in fact have, such double tax is illegal. The poll tax is not a property tax, and does not come within the purview of our law relative to the imposition of double taxation. It is therefore my opinion that the only proper charges on a delinquent poll tax defaulter are the $1.00 poll tax, plus 50 fi. fa. fee and 50 settling fee, and interest from the date when fi. fa. is issued.

TAXATION-Property purchased by veteran with bonus money, compensation, etc., subject to ad valorem taxation
December 13, 1933 Hon. W. B. Harrison Comptroller General My dear Mr. Harrison:
Yours of recent date inquiring whether or not property purchased by a World War veteran with funds derived from compensation, insurance, and maintenance and support allowance, is, under the recent decision of the Supreme Court of the United States in the case of Trotter v. State of Tennessee, subject to taxation by the state, the county and the municipality in which it is located, received.
The Supreme Court of the United States in the Trotter case expressly disapproved the two Georgia cases, that of Rucker v. Merck, 172 Ga. 793, and Atlanta v. Stokes, 165 S. E. 270 (175 Ga. 207) which held that property purchased by compensation, insurance, bonus, and maintenance and support allowance was not taxable.
The Trotter case held that moneys payable to a soldier were exempt until they came into his hands or into the hands of someone else for him, leaving the question open as to whether or not the exemption extended to moneys held by others for him or on deposit in a bank, and further held that:
"We think it very clear that there was an end to the exemption when they lost the quality of moneys and were converted into land and buildings. The statute speaks of 'compensation, insurance and maintenance and support allowance payable' to the veteran, and declares that these shall be exempt. We see no token of a purpose to extend a like immunity to permanent investments or the fruits of business enterprises. Veterans who choose to trade in land or in merchandise, in bonds or in shares of stock, must pay their tribute to the state. If immunity is to be theirs, the statute conceding it must speak in clearer terms than the one before us here."
The United States Supreme Court thus held unequivocally that property bought by a veteran with federal funds is subject to state, county and municipal taxation and this is binding on the Attorney General, the courts of this State,-and must necessarily be followed.

TAXATION-Construction of Act regulating sale of jewelry at public auction

Hon. W. B. Harrison

March 30, 1934

Comptroller General

Dear Mr. Harrison:

t~hMe1I.chAha~1tve.esoyCfoou1dr9e2v5oefrrb1ea9gl2u6rl,eaqStiuenecgstitothfnoer18sa6anl2eo(p3o6ifn)ijoteonw1ea7lsr6yt2oa(a4t3c)pou(nbSsleticrcu. c8atu8io-c7nti0oo8nf,

ode of 1933), as applied to the business of Mrs. Wyatt at Rome.

I understand that Mrs. Wyatt owns a jewelry store at Rome and that she desires to dispose of her entire stock of jewelry at public auction. I further understand that her jewelry store has been continuously operated in Rome for more than two years.
Section 176~ (36) of Michie's Code which prohibits the sale of jewelry at public auction without compliance with the regulatory provisions of the Act of 19~5 referred to, expressly provides that it shall not apply
"to the sale at public auction of the stock on hand of any person, firm or corporation that shall for the period of two years next preceding the same have been continuously in business in the same city, town or community in the State of Georgia, as a retail or wholesale merchant dealing in the articles above mentioned." The section further provides that such sale by any merchant as is permitted by this section shall be held continuously from day to day and shall not continue longer than thirty days, Sundays and legal holidays excepted. It is my opinion that Mrs. Wyatt may dispose of her stock of jewelry without obtaining the license required by the Act of 19~5, or otherwise complying with the provisions of the regulatory Act of 1925, provided she does all in conformity with the statute just referred to; that is, that the sale be held continuously from day to day and not longer than thirty days, Sundays and holidays excepted.
The fact that this sale may be conducted without complying with the regulations referred to does not exempt either the proprietor of the business or any professional auctioneer engaged for that purpose from the payment of any valid State, county, or municipal tax imposed on account of the conduct of any such auction.
Mrs. Wyatt was in the office with your Mr. Thrasher a few days ago and she stated that the City of Rome, by ordinance, imposed a license tax of some sort on public auctions. This opinion is not to be construed as undertaking to hold that Mrs. Wyatt is exempt from any such municipal license tax. I am not familiar with the city ordinance and have no jurisdiction to pass on it and I am not undertaking to do so.
VOTERS-Qualification where property sold for taxes, including poll taxes, and county bids in property but fails to actually pay money to tax collector
May 3, 1934 Hon. W. B. Harrison Comptroller General My dear Mr. Harrison:
I have your request for an opinion upon the facts stated in the letter of Mr. U. T. Winslett, Tax Collector of Bibb County, dated May 2nd, 1934, relative to the disqualification of voters whose property has been sold under tax fi. fas., and purchased by the County,

65
the poll taxes included in said fi. fas., not having actually been paid to the tax collector.
It is my opinion that when the County bought in the property under a tax sale, the County Commissioners taking a deed to the same, the County assuming the payment of the taxes represented by the fi. fas., so far as the taxpayer is concerned, the taxes, including the poll taxes, have been paid. The poll taxes represented by the fi. fas., were paid agreebly to law.
Civil Code Section 49 (Section 84-203, Code of 1933) requires the tax collector, Ordinary and clerk of the superior court to make up, before the 20th day of April each year, and file with the County registrars, a complete list of disqualified persons, and Code Section 50 provides
"in preparing said list of disqualified persons, the said tax collector, ordinary and clerk of the superior court shall act upon the best evidence obtainable by them, and they shall especially examine and consider the records of the criminal courts and the insolvent tax lists, tax digest, and tax execution dockets, and tax executions, wherever they may be." Under this section it is the duty of the tax collector, ordinary and clerk of the superior court to refer to the tax executions and determine the status of the same. Where the property represented by the execution has been sold and bought in by the county the execution or other public records of the county will show this fact and will be the best evidence obtainable as to the same. When it is found that the county has bought in the property sold under tax executions, then, the county having assumed the payment of the tax represented by the execution, the tax collector, ordinary and clerk of the superior court, acting under the authority of Sections 49 and 50 should not place a person on the disqualified list whose property has been sold under such conditions to the county. I therefore concur in the opinion of Mr. Estes, the County Attorney, that when the properties of these several taxpayers have been regularly sold for a sufficient amount to pay the taxes, including the poll taxes, it can not be said that the poll taxes have not been paid for the years covered by the sale.
Trusting this is the information desired by you, I am

TAXATION-Ad valorem on pool and billiard tables

Hon. W. B. Harrison

Comptroller General

Dear 1\tlr. Harrison:

.

June 22, 1934

f I have your letter of the 21st instant inclosing a communication r~m. Mr. J. H. Wood, City Clerk of Covington, and requesting my opmwn as to whether or not ad valorem taxes may be collected on pool and billiard tables.

Mr. Wood doubtless has reference to Section 1089 of the Civil

66
~
Code of Georgia (Section 2-5005, Code of 1933) which provides as follows:
"Where persons are specifically taxed for keeping a billiard or pool table, baggett table, or ten pin alley, they need not give in the value thereof." This Code Section is contained in the chapter providing a form of tax returns to the tax receiver for ad valorem taxation. I do not think this Code Section has any application to municipal taxation. It specifically refers to the return to be made to the tax receiver of the county, who of course, has nothing to do with municipal tax returns. Therefore, in the absence of some provision in the charter of a municipality similar to this Code Section, it is my opinion that it does not exempt property of this class from municipal ad valorem taxation. I have traced this Code Section to its origin and it seems to have appeared for the first time in the Code of 1863 and is apparently not based upon any legislative enactment but seems to have been placed in the Code by the Commission which prepared the Code of 1863. It has been retained in its present form in each Code since then. The Constitution of this State (Code 1910, Section 6554, 6556) prohibits the passage of any law exempting property from taxation except the particular property which the Constitution authorized to be exempted. (Code 1910, Section 6554, 6556 being Sections 2-5002, 2-5005, Code of 1933). The classes authorized to be exempted do not include billiard or pool tables. It has been held by the Supreme Court that the General Assembly may constitutionally select one method of taxing property in preference to another. Thus it is held that the General Assembly may require the payment of ad valorem taxes on the property of a corporation rather than upon shares of stock. This ruling, however, is expressly limited to the application of a method of taxation to the property itself, and the cases so decided hold that a statute which undertakes to exempt property from all ad valorem taxation is void.
Section 1089 of the Code, as heretofore stated, was placed in the Code of 1863 originally. This was before the adoption of the Constitution of 1887, which contains the constitutional provision just referred to. I am of the opinion that this section of the Code is in contravention of the Constitution of 1887, and since it could not be successfully contended that its appearance in the early Codes conferred any contract right which now exists, I am of the opinion that it was repealed by the Constitution, although it has been retained in Codes since adopted.
The only specific tax levied upon the keepers of billiard in this State is an occupation tax which is in no sense a tax upon the property itself and is levied irrespective of the ownership of the property. I do not think therefore that it would be possible to construe the provision of the General Tax Act laying an occupation tax upon the persons operating billiard and pool tables as an election by the General Assembly to adopt that method of taxing property.

67

From what is stated above, I am of the opinion that billiard and

pool tables are subject to ad valorem taxation by the State and by

the counties and municipalities also. I am advised that the Code

Commission which is now engaged in preparing a new Georgia Code

agreed with this view and contemplates omitting Section 1089

from the new Code.



I inclose an extra copy of this letter which you can forward to Mr.

Wood if you so desire.

TAXATION-Duties of county board of tax assessors

October 9, 1984

Ron. W. B. Harrison Comptroller General My dear Mr. Harrison:

I have your recent request for my opinion on the questions submitted to you by Honorable C. H. Gullatt, one of the tax assessors of Fulton County.

The Tax Equalization Act of 1918 is very broad in its scope. It is made the duty of the County Board of Tax Assessors to "diligently investigate and inquire into the property owned in the County for ~he purpose of ascertaining what property, real and personal, is subJect to taxation in the County and to require its proper return for taxation." The Board is authorized "to employ an agent to seek out all unreturned property in the County and bring it to the attention of the Board." The Board is further authorized by rule or regulation to provide the manner of ascertaining the value for t~xation of any property, real or personal, not appearing in the digest of the preceding year, and in cases where there has been a chan~e of ownership for any cause, it being the declared purpose and mtent of the law "to confer upon the said Board full power and authority to have placed upon the digest of the current year an assessment or valuation of all property of every character in the County that is subject to taxation." The Board is authorized to subp?ena witnesses and to require the production by any person of all his books, papers and documents which may throw any light upon the question of the existence or liability of property of any class for taxation. If any witness so subpoenaed shall fail or refuse to answer questions or fail or refuse to produce such books, papers or d?cuments as he may be required to produce, the Board is authonzed to cite him to appear before the Ordinary, who shall, in a su_mmary way, hear the reasons or excuses of such person for his failure or refusal and is authorized to punish as for contempt by fine nbot to exceed $100.00 or imprisonment not to exceed ten days or
oth.

wh~itc~is

my the

opinion that tax assessors

the Act of 1918 affords ample authority of any County may require the return

by for

taxatiOn of any property in the County. I think the method of

68
operation suggested by Mr. Gullatt is authorized by the Statutes and may be put in force if adopted by the Board by a rule or regulation.
In my opinion, however, the authority of the Board of Tax Assessors is limited to the assessing of property for taxation for the current year. They are not authorized to ascertain value for the purpose of levying an assessment for preceding years. That duty rests upon the Tax Receiver, under the Act of 1918 which appears in Michie's Code, 1926, at Section ll16 (1) to 1ll6 (5). (Section 92-6308, Code of 1933). Of course, there is no reason why the Tax Receiver may not use any information which may be obtained by the Board of Tax Assessors and furnished to him.
I am sending you an extra copy of this letter which you may transmit to Mr. Gullatt. I trust that it will furnish him the information he desires.
TAXATION-Exemption from ad valorem taxation for five years, who entitled to
April 24, 1935 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter referring a communication of Honorable W. M. Bryant, Tax Collector of Clarke County, with reference to the claim to exemption of the Athens Cooperative Creamery, Inc.
As I understand the facts, this corporation has been exempted for five years under the constitutional amendment of 1923 on account of its machinery and equipment. It has obtained no exemption on account of any building because it did not own a building. The corporation has now purchased a building which it desires to enlarge and in which it desires to install additional machinery. The corporation claims that it will then be entitled to exemption for five years on the value of the building and the equipment.
The provision for an exemption of this sort is contained in Chapter 92-2 of the Code of 1933, Section 92-216, which provides as follows:
"H said county election shall result in favor of said tax exemption, any person, natural or artificial, a resident of this State, who may build, equip, establish or enlarge a plant for the manufacture or processing of cotton, wool, linen, silk, rubber, clay, wood, metal, metallic, or non-metallic minerals, or combinations of the same, cream or cheese plant, or for production or development of electricity, shall as to such building, enlargement, or equipment be exempt from all county ad valorem taxes for a period of five years from the date of the beginning of the building, equipment or enlargement of such plant. H any municipal election shall result in favor of a proposed tax exemption, the persons above referred to shall likewise be exempt from all city ad valorem taxes for the period proposed by the governing authorities of such munici-

69
pality, in no event to exceed five years, from the date of the begin. ning of the building, equipment or enlargement of such plant." This section of the Code is substantially the same language as the constitutional amendment of 1923. See Code of 1933, Section 2-5003. Both the constitutional amendment and the enabling act adopted. pursuant thereto, are statutes of exemption. They must, therefore, be strictly construed. The Constitution provides in substance that any person who may, after January 1, 1924, build, equip, establish, or enlarge a plant for the manufacturing purposes referred to, shall, as to such building, enlargement or equipment, be exempt from all county or city taxes for not exceeding five years from the date of the beginning of the building, enlargement or equipment for such plant. The exemption is contingent upon an election favorable to the exemption. I presume this election has been held in Clarke County.
I am of the opinion that as to buildings the exemption is only in favor of new buildings; and as to equipment, the exemption is only in favor of new equipment; as to enlargements of buildings, the exemption is only in favor of new enlargements. Construing the constitutional provisions in the light of what seems to me to be the manifest meaning, it was not the purpose of the Constitution to exempt from taxation any property then subject to taxation; but only to exempt new buildings, new equipment and new property. This is plainly indicated by the fact that the exemption does not apply to the land upon which a building might be constructed but only to the building itself.
I am, therefore, of the opinion that the Creamery Company is not entitled to any exemption on the value of the building which it is purchasing, or on the value of the real estate on which it is situated. It is entitled to exemption for a period of five years on the value of any enlargement made to the building and on the value of any new equipment placed in the building. As to its old equipment, which it purchased after January 1, 1924, it is entitled to have the exemption continued until the period of five years from the date of the purchase of the equipment has expired. If that period has already expired, it is entitled to no exemption on account of that property.
In the case of City of Colquitt v. Muscogee Mfg. Co., 165 Ga. 259, the court held:
"Where a resident corporation of this State, which owns and operates a cotton factory, purchases existing warehouses for the storage of cotton to be manufactured at its factory and for the storage of the finished product, such warehouses constitute an existing warehouse plant, and not an enlargement of its cotton factory within the meaning of the above provisions of the Constitution of this State, and the same are not exempt from taxation under the above provisions of the Constitution."
In that case the court held that the rule of strict construction should be applied to this provision of the Constitution.

70

TAXATION-Registration of persons with Ordinary before opening up any business

January 30, 1933

Hon. W. B. Harrison

Comptroller General Dear Mr. Harrison:

I acknowledge receipt of letter written to you by Hon. J. V. Castleberry, Ordinary of Stewart County, in which he makes inquiry as to the number of requests which should be made by taxpayers who are

required to register under the general tax act and who conduct more

than one line of business subject to taxation.

The part of Code Section 978 which is material to this question reads as follows:

"Before any person shall be authorized to open up or carry on

said business, they shall go before the Ordinary of the county in which they propose to do business and register their names, the

business they propose to engage in, the place where it is to be con-

ducted, and they shall then proceed to pay their tax to the collector."

It is noted that the word business and also place is singular, from

which it might be argued that the Legislature intended a registra-

tion to be made and a fee to be paid not only for each different line of

business subject to an occupation tax, but also for each separate place

of business.



While the question is not entirely free from doubt, and there has been no interpretation of this provision by the higher courts, this department is of the opinion that the correct interpretation is that a person engaged in more than one business which is subject to occupation tax should register once for each business, and for each registration, of course, the Ordinary is entitled to the usual fee.

If the business in which a person is engaged is one upon which a tax is laid upon each place of business, then the registration for this

business should include a statement as to the location of each place of business.

The purpose of the law is to furnish sufficient information to the Ordinary whereby he may advise the tax collector who is subject

to taxation and the amount of tax that should be paid. While it is

true that all of this information could be furnished in one registration, since the word business in Code Section 978 is singular, we think it was intended for a separate registration to be made for each line of business.

The reason we do not believe the same rule would apply and require a separate registration for each place of business, even though the word place in Section 978 is singular, is because there are many occupations where the tax is laid upon the business and not upon the place, for example Paragraph 52 levies a tax of $50.00 on fish dealers,

which authorizes them to conduct business in several different places in a county.

71
I am returning herewith the letter from Mr. Castleberry, and am also inclosing an extra copy of this letter for your convenience in replying to Mr. Castleberry's letters.
TAXATION-Does registration of beauty parlors classify them as barbershops, so as to make them subject to taxation under General Tax Act.
Aprill4, 1983
Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
Your letter of April 11th, enclosing a letter from Ron. W. S. Richardson, Tax Collector, Fulton County, Georgia, is acknowledged.
You request us to give you an opinion as to whether or not the registration of beauty parlors has the effect of classifying them as barber shops.
Under the provision of Paragraph 24 of Section 2 of the General Tax Act, tax is imposed "upon each beauty parlor or manicure shop" as graduated and set out in said paragraph, and is imposed upon "said tax to apply to and to be collected from the owner or operator of each and every such place of business. Provided, that t~is tax shall not apply to manicure shops operated in connection With barber shops."
The provisions of the above paragraph remain in full force and effect at this time, and the tax thereby imposed should be collected.
Under the ruling in the case of State Board of Barber Examiners, ~tal v. Blocker, et al, decided on December 15th, 1933, and reported m 167 S. E. at page 298 (S. E. Reporter, Advanced Sheet, February 9t~, 1933), "beauticians, beauty culturists, beauty culture specialists, h~Ir dressers, and operators of beauty shops, are held to be barbers Wit~in statutory definitions making them subject to regulations governmg barbering."
The effect of this decision was to hold that beauticians were barbers with~n the meaning of the Act which required them to register, quahfy and obtain license as such, under the proper construction of the Act to regulate the practice of the occupation of a barber, etc.
The mere fact that under the above quoted decision beauticians, etc. are classified as coming within the general definition of a barber does not, in my opinion, furnish a reason for permitting them to operate beauty parlors without paying the tax imposed, under the paragraph of the General Tax Act above referred to. hShould barbers operate beauty parlors, they would be subject to t e payment of this tax in the same manner.
I am therefore of the opinion that the tax imposed by the paragraph referred to should be paid by operators of beauty parlors.

72
SECURITffiS-Code Sections dealing with investment companies superseded by Securities Act of 19fl0
June 23, 1933
Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of recent date, in which you ask that I advise you whether or not Sections fl899 to 2909, both inclusive, of the Civil Code of 1910 are now of force.
The Code Sections referred to deal with investment companies. Section fl899 requires each company organized under the laws of this State, or conducting business within this State, to provide a redemption reserve fund of not less th~n 75% of the amount collected in premiums for the benefit and the protection of its investors. That Section requires such companies to make a deposit of not less than $25,000.00 in cash or bonds with one of the State depositories, or some trust company, which fund shall be for the protection of the investors.
Section 2900 requires the filing of certain statements of the Comptroller General.
The succeeding Sections regulate the filing of annual statements, the issuing of annual licenses, and the manner and method of doing business by such companies.
The Act of 19fl0, known as the Georgia Securities Law, regulates the issuance and sale of various securities therein defined. The securities dealt with by Section 2899 of the Civil Code fall within the definition provided by the Securities Act of 1920. The Securities Act of 1920 has been variously amended, but not with reference to the particular question you ask. The original Act of 1913, which was expressly repealed by the Act of 1920, specifically provided that it was not intended and should not operate to repeal any existing statutes for the regulation of corporations or associations engaged wholly or partially in the issuance or sale of, or otherwise dealing in stocks, bonds, debentures, etc. Under the original Act of 1913, Sections 2899 et seq. of the Code were not repealed or superseded. The Act of 1920, however, contains no such provision as that just referred to in the Act of 1913.
The general rule is that repeals by implications are not favored. In Sapp v. Elrod, 41 Ga. App. 356-359, there is quite a discussion of this subject, and Judge Bloodworth, of the Court of Appeals, quoted from prior decisions from the Supreme Court, as follows:
"In Butner v. Boifeullet, 100 Ga. 743 (28 S. E. 464), Judge Atkinson quoted from the case of Butler v. Russell, 3 Clifford, 251, in which Justice Clifford of the Supreme Court of the United States, presiding on the circuit bench of the first circuit, laid down the following rule: 'Where the provisions of the old statute are revised in the later enactment, and where the later statute was intended to prescribe the only rules upon the subject, the subsequent is held to repeal the former statute. When a revising

73
statute covers the whole subject matter of antecedent statutes, it virtually repeals the former enactments, without any express provisions to that effect. Where some parts of the revised statute are omitted in the new law, they are not, in general, to be regarded as left in operation if it clearly appears to have been the intention of the legislature to cover the whole subject by the revision.' In Horn v. State, 114 Ga. 510 (40 S. E. 768), Chief Justice Simmons thus states the principle: 'The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication.' We recognize that repeals by implication are not favored, and it is only when 'a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two can not stand together, or is manifestly intended to cover the subject matter of the former and operate as a substitute for it that such a repeal will be held to result.' Johnson v. So. Mut. Bldg. & Loan Asso., 97 Ga. 6~~ (~5 S. E. 358)." Since the request for an opinion was filed with me, counsel for parties at interest in pending litigation, in which the question submitted appears to be in issue, have requested and have been accorded permission to file briefs with the Department of J,aw. I have examined the various authorities cited and have reached the conclusion that it was the purpose and intent of the General Assembly, in the passage of the Securities Act of 19~0, which has been several times amended, to provide a comprehensive code of laws governing the issuance and sale of securities, and to supersede existing laws on the subject.
There appears to be no substantial provision of the Code Sections referred to which is not covered by the Securities Act, except the provision which req!!ires a deposit to be maintained in this State and the provision fixing the percentage of the reserve to be carried. As to the latter provision, the authority charged with the administration of the Securities Law is vested with a wide discretion and is ~uthorized to require, and, I am informed, in most cases does require, mvestment companies doing a business of the nature of that regulated by the Code Sections to carry a much greater reserve than is required by the Code Section. There is no provision of the Securities ~aw which requires an investment company to maintain a deposit m this State. However, I do not think the omission of this requirement can be taken to evidence the legislative intent that it should be left in operation, since it clearly appears to have been the intent of the General Assembly, in passing the Act of 19~0, to cover the whole subject matter contained in the previous law.
It ~~uld. hardly be said that the General Assembly int~nded that secunhes Issued by investment companies should be subJeCt to the supervision of the Comptroller General, and governed by one set of regulations and that the sale of all other securities should be subject to the supervision of the Securities Commission and governed by

74
another set of regulations. Especially is this true when it is considered that securities issued by investment companies clearly come within the definition of the word "securities" as embodied in the Act of 19fl0.
There is now, as you know, in process of preparation, the Code of Georgia of 1933. The Code Commission created by the Act of 19fl9 will have to consider this matter in determining whether or not the Sections of the Code of 1910 referred to should be retained in the Code of 1933. It may be that the Code Commission will reach a decision contrary to what is expressed above. However, the question of whether or not these Sections of the Code of 1910 were superseded by the Act of 19fl0 inust eventually be determined by the Courts, since the conclusion reached by the Code Commission will not be final in the event the Courts should eventually determine that the purpose and intent of the General Assembly in the passage of the Act of 19fl0 was contrary to what the Code Commission may find was the intent of the legislative body.
Accordingly, this opinion is necessarily of a somewhat tentative nature.
Whatever may be the conclusion reached by the Code Commission, it is now the opinion of this Department that the Code Sections referred to were superseded by the Securities Law of 19fl0.
TAXATION of Domestic and Domesticated Corporations
August 24, 1933 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of recent date with enclosures, in which you request an opinion as to whether or not foreign corporations which become domesticated in Georgia under the provisions of the Act approved August 17th, 19fl0, as amended by the Act of April 8th, 1926, are subject to taxation under Paragraph 44 of the General Tax Act as domestic corporations, or under Paragraph 45 of the General Tax Act as foreign corporations.
The Act of 1920 as amended by the Act of 1926, and which authorizes domestication of foreign corporations, reads as follows:
"That all foreign corpora~ions now doing business in the State of Georgia, or which may hereafter do business in the State of Georgia, and whose business is not against the public policy of this State, shall have the power to become domesticated in the manner hereinbefore pointed out; and upon becoming domesticated such corporations and the stockholders thereof shall have the same powers, privileges, and immunities as similar corporations created under the laws of the State of Georgia and the stockholders thereof have, subject to the same obligations, duties, liabilities, and disabilities as if originally created under the laws of Georgia, and shall no longer have that power of removing causes to the United States Courts which inheres in foreign corporations."

75

It may be stated as a settled general principle of law that two

States cannot by concert of action unite to create a single corpora-

tion. Several States may by corresponding legislation create several

corporations, each having the same name, a capital stock as a unit,

the same powers and objects, and be under the same management;

but in the very nature of things the States cannot unite in creating

the same corporation, since the laws of a State can have no extra territorial effect. In such a case each State simply creates a sepa-

rate corporation. It is further a general rule, established without

exception, that the incorporators obtaining a charter for a corpora-

tion are conclusively presumed to be citizens of the State granting a

charter and that the citizenship corporation follows that of the in-

corporators. Thus a corporation chartered by any State becomes

a citizen of that State. It can surrender its corporate existence to

the State which grants it, but it cannot remove its citizenship from

that State, so long as it retains the franchise granted by the State.

Many, if not all, of the States have enacted so-called domesti-

cation laws. The purpose and effect of these Acts are to be de-

termined by ascertaining the intention of the law-making bodies in enacting them. If the Act of the law-making body in a particular

instance, properly construed, affects a reincorporation by the State

enacting the domestication law, and thus amounts to the grant of

a new charter by such State, upon a declared intent of the law-

making body that by accepting the benefit of the Act the corporation shall become a domestic corporation, with the powers, capacities

and liabilities of domestic corporations, and subject to the liabilities

and disabilities of domestic corporations, then the foreign corporation becoming domesticated under such an Act thereby becomes a

corporation of the State in which it becomes domesticated. This

necessarily results in there being two corporations created by different

States, one being a foreign corporation, and the other a domestic ~orporation. If, however, the purpose and effect of the domesticat-

Ing act is merely to grant privileges or powers to an existing cor-

poration, the effect of domestication under such an act is not to make

the domesticating corporation a corporation of the State conferring

such powers and privileges, but is to leave it a foreign corporation exercising the franchise granted by another State within the State

so authorizing domestication.

There has been no decision by the Courts of Georgia construing the Georgia Domestication Law of 19~0. However, in the case of Foye & Shemwell v. Georgia-Alabama Power Company, ~98 Fed-

eral, 643, the Act was dealt with and construed by Judge Barrett of

the District Court of the United States for the Southern District of

Georgia. The opinion in. that case holds that the Georgia statute

falls within the latter class mentioned above, and amounts to the mere ~r~nt of powers and privileges to foreign corporations. In ~he opmwn the Court calls attention to the fact that the Act of 19~0

lS an thh-t

tAh~cst

~onfteDntomisesctliecaartiloynm, aannidfenstoetd

an Act by the

of Incorporation, language of the

and Act

w lch hm1ts the duration of the domestication to the duration of

76
the original charter granted by the foreign State. The Court quotes approvingly from Louisville, etc. Railroad v. Louisville Trust Company, 174 U.S. 562, and from Penn. Co. v. St. Louis etc. R. R. Co., 118 U. S. 290, where the general rule stated above is laid down. The Court also in this case held that a North Carolina Corporation which had become domesticated in Georgia under the Act of 1920 continued to be a North Carolina Corporation, and a citizen of that State, and under the Constitution and Laws of the United States, could remove cases to the Federal Court, despite the provisions to the contrary contained in the Georgia Act of 1920.
The decision is not based, however, upon the idea that the Federal Constitution and Statutes would take precedence over the Georgia Law, in case of conflict, but upon the construction of the Act of the General Assembly of Georgia as an Act merely of domestication, and not of incorporation. In other words, the Court held that the North Carolina corporation, in complying with and accepting the benefit of the Georgia Domestication Law, did not become a Georgia corporation, but remained a foreign corporation and therefore, under the Federal Constitution and Laws, retained the right to remove cases to the Federal Courts, and that the effect of the provision to the contrary in the Georgia Law was merely to seek to deprive a foreign corporation of a right granted to it by the Federal Constitution and Laws and not to make it a Georgia corporation.
There are numerous decisions by the Supreme Court of the United States, similar in effect to the case just referred to, which need not be dealt with here.
In Van v. N.C. & St. L. R. R., 232 S. W. 411, the Supreme Court of Ky. had under consideration the same question you ask, under a very similar domestication statute and held that the corporation which had domesticated under the Kentucky Law was subject to taxation as a foreign corporation and not as a domestic corporation.
The amendatory Act of 1926 referred to above contains a section not found in the Act of 1920, which provides as follows:
"That all corporations thus domesticated shall be dissolved in the same manner and under the same proceedings as are now provided for dissolution of domestic corporations." While this language standing alone might indicate an intent to reincorporate the foreign corporation seeking to domesticate, since it provides for the dissolution thereof, it is my opinion that this language, when construed in connection with the remainder of the Act of 1920, has reference to a dissolution of the order of domestication and not of the corporation itself. EspeCially is this true when consideration is given to the caption of the Act of 1926, which is as follows:
"An Act to amend an Act approved August 17, 1920, providing for the domestication of foreign corporations, so as to define the powers and privileges of such domesticated corporations and their stockholders, and to provide a method of surrenderind or cancellind said domestication." The reading of the caption clearly demonstrates that the General

77

Assembly did not intend to provide for the dissolution of the cor-
poration itself, but merely intended to provide the method of surrendering and cancelling a domestication.
I have also given particular consideration to that portion of Sec- tion 1 of the Act of 1926 as amended, which reads as follows:
"And upon becoming domesticated such corporations and the stockholders thereof shall have the same powers, privileges and immunities as similar corporations created under the laws of the State of Georgia, and the stockholders thereof have, subject to the same obligations, duties, liabilities, and disabilities, as if originally created under the laws of Georgia." This language cannot be construed to impose upon foreign corporations becoming domesticated under the Act the liabilities which are imposed by the laws of Georgia upon Georgia corporations. The language "subject to the same obligations," etc., merely places a limitation upon the exercise by the domesticated corporation of the powers, privileges and immunities granted by the Georgia law to similar domestic corporations. In other words, the statute merely says that a foreign corporation becoming domesticated must exercise the powers and privileges exercised by domestic corporations under the same restrictions and limitations as those under which domestic co:rporations exercise such powers and privileges. The statute does not, either expressly or impliedly, subject foreign corporations becoming domesticated to the liabilities imposed by law upon domestic corporations.
For the reason stated above, I am of the opinion that the purpose and intent of the Act of 1920 was to provide a method whereby foreign corporations might become domesticated in Georgia, and upon so doing might have the privileges and immunities granted to domestic corporations, and not to incorporate the corporation in ~eorgia so as to make it a Georgia corporation. In other words, It is my opinion that the Act is merely one of domestication and not one of incorporation. Accordingly, a foreign corporation becoming d.omesticated in Georgia does not thereby become a Georgia corporabon, but remains a foreign corporation, and is subject to taxation under the General Tax Act as a foreign corporation, and not as a domestic corporation.

TAXATION-Shares of stock issued by domesticated foreign cor-

poration subject to ad valorem taxation

Ron. W. B. Harrison Comptroller General

November 10, 19SS

Dear Mr. Harrison:

Yours of recent date has been received.

Your request is as follows:

"Please refer to Code Section 2207 (Section 22-1505, Code of 1~~3) and advise whether or not the shares of stock owned by a

CitiZen of Georgia, issued by a domesticated foreign corporation, are exempt from ad valorem tax."

78
In answering this question, I again refer you to an opinion of this Department under date of August 24th in which a very similar question was involved. The question answered in that opinion and the one which will be answered in this should have been answered together.
Beginning with the major principle that all property in Georgia which is not specifically and legally exempt therefrom, is subject to taxation, we will discuss the various features of this question as they occur to us. The Courts have held in a long line of decisions that a share of stock is property and has its situs for taxation at the residence of the owner. Therefore, a share of stock, either in a foreign corporation or a domestic corporation, or a domesticated foreign corporation, is taxable under the laws of Georgia, unless exempt therefrom.
Your attention is called to the fact that Code Section 2207 referred to in your letter was amended at the extraordinary session of the Legislature in 1926, as shown in Acts of Ex. Sess. 1926, page 47, which is an Act relative to the domestication of foreign corporations. This Act provides, among other things, that
"Upon becoming domesticated such corporations and stockholders thereof shall have the same powers, privileges and immunities as similar corporations created under the laws of the State of Georgia and the stockholders thereof, subject to the same obligations, duties, liabilities, and disabilities, as if originally created under the laws of Georgia, and shall no longer have that power of removing causes to the United States Courts which inheres in foreign corporations." A reading of this section, in view of other decisions of our State Courts upon the question of whether a share of stock in a foreign corporation may be taxed when owned by a resident of Georgia leaves only an interpretation of what is meant by immunities in this statute for us to attempt. In other words, the question might be asked, "Does this Act of 1926, exempt a share of stock of a foreign corporation which has been domesticated in Georgia and owned by a resident of Georgia from taxation?" It is my opinion that if such is the proper and intended effect of this statute, then the same is unconstitutional, for it is provided in Code Section 6556 of our Code, (Section 2-5005, Code of 1933) which is Article 7, Section 1, Paragraph 4 of our State Constitution, that "All laws exempting property from taxation, other than the property herein enumerated, shall be void." As stated above a share of stock has been uniformly held by the courts to be property. There is no enumeration in our law which makes such property exempt. We also call your attention to Section 5557 of our Code, (Section 81-207, Code of 1933) which is as
follows: ''The power to tax corporations and corporate property shall not be surrendered or suspended by any contract or grant to which the State shall be a party."

79
This section is cited merely to show that the Legislature, if it were attempting to grant immunities from taxation to foreign corporations, which become domesticated in Georgia, by the Act of 1926, was acting beyond its authority. This later section, of course, has nothing to do with the liability of a stockholder for such tax on a share of stock.
We, therefore, reach the conclusion that the immunities spoken of in the Act of 1926 do not contemplate and can not include an immunity from taxation of the shares of stock in a domesticated foreign corporation owned by a resident of Georgia.
Some of the decisions of our courts and of the courts of other jurisdictions which shed light upon this question will be subsequently given.
In 61 Corpus Juris, section 254, the principle is laid down that "It is within the power of the legislature to tax the stock of a corporation to the corporation itself, or to tax the individual stockholders the value of the shares owned by them. In the absence of a requirement that the corporation pay the tax, the capital stock is taxable to the stockholders, and not to the corporation. (See Butte Land & Investment Co. v. Sheehan, 120 Pac. 241, 44 Mont. 371.) Statutes requiring the corporation to withhold from dividends or profits the tax on capital stock, or requiring the corporation to pay taxes on individually owned shares of stock, are valid .... Since the capital or capital stock of a corporation, which is its property, is a distinct and separate thing from the interests of the stockholders, represented by the shares they severally hold, and since the principle which forbids duplicate taxation is not violated, at least according to the decisions in many states, by assessing the capital to the corporation and the shares to their holders, the shares of stock in a corporation may properly be assessed for taxation to their holder at the place of his domicile (See Wright v. Louisville Etc. R. Co., 25 Sup. Ct. 16, 195 U. S. 219, 49 L. Ed. 167; Sturges v. Carter, 5 Sup. Ct. 1014, 114 U. S. 511, 29 L. Ed. 240; Farrington v. Tenn., 95 U. S. 679, 24 L. Ed. 558; Ga. Ry. Co. v. Wright, 125 Ga. 589, 207 U. S. 127, 52 L. Ed. 1341; Atlanta National Bldg. & Loan Association v. Stewart, 35 ~- E. 73, 109 Ga. 80), irrespective of the taxes which may be Imposed on the corporation itself in respect of its capital or fran~hises, the statutes in many jurisdictions providing expressly or Impliedly for the taxation of corporations in this manner."
A tax on the stock of a foreign corporation in the hands of resident stockholders is not a tax on the capital of the corporation but is a personal levy against the stockholder. See 104 Atl. 565, 261 Pa. 40; 272 Pa. 255. Also Brown v. Jackson, 102 S. E. 739, 179 N. C. 363.
In our opinion of August 24 we outlined to you our views as to the effect of domestication on a foreign corporation and held that such dome~tication did not make a foreign corporation a domestic cor~oratwn in the truest sense of the word. In fact, such domestication
oes no~ incorporate the foreign corporation in Georgia and the corporatiOn becomes a domestic corporation only in a very limited

80
sense, if at all. Rather the better view seems to be that such domestication of foreign corporations leaves the foreign corporation but entitles then to certain special rights specified in the particular statutes of domestication. We think that a stockholder of a foreign corporation which has been domesticated under the Georgia law is still a stockholder in a foreign corporation and not in a Georgia Corporation.
It is, therefore, our opinion, in accordance with the rule that the property of the shareholders in their respective shares of stock may be taxed separately from the corporate property and capital stock, a resident owner of shares in a foreign corporation may be taxed thereon even where the rule in regard to the domestic corporation is that the corporation shall be taxed on its capital or property and that this shall relieve the stockholder from taxes on his shares, and regardless of whether the foreign corporation pays taxes on its capital or property in theforeign State ornot. (Georgia Ry. Co. v. Wright, 54 S. E. 5~, 1~5 Ga. 589.)
The case of Bacon v. State Tax Commissioner, 1~6 Mich. !2~, 60 L. R. A. 3~1, it was held that a clause in the State Constitution requiring uniform and equality in taxation is not violated by taxing shares of stock held by citizens in foreign corporations whose property is taxed within the State of its domicile, (the shares being executed there), while exempt from taxation shares in domestic corporations whose property is taxed within the State, it being competent for the Legislature to classify, for purposes of taxation, foreign and domestic corporations in different classes. See also State v. Nelson, 107 Minn. 319, 119 N. W. 1058.

TAXATION-Minstrel show operated by veteran holding exemption certificate

Hon. W. B. Harrison

December ~8, 1933

Comptroller General Dear Mr. Harrison:

Your request for an opm10n relative to the payment of occu-

pation taxes by a minstrel show which is conducted by a party who holds a disabled soldier's certificate has been received. We also acknowledge receipt of the letter of December ~7th of Mr. T. M. Battle addressed to you relative to this matter.

Code Section 1888 of Michie's Code of 19~6 (Section 84-!2011, Code of 1933) is an exemption statute which exempts any disabled or indigent veteran of the wars named therein from the payment of any

occupation or business license tax on certain businesses. The provision is that a person who qualifies under this section "may peddle

or conduct business in any town, city, county or counties thereof without paying license for the privilege of so doing". This being an

exemption statute, it must be construed most strongly against the person claiming the exemption.

81
Our Supreme Court has said in many cases that taxation is the general rule and exemption therefrom is the exception and that in order for a person to be exempt from taxation, such exemption must be clearly allowed by law.
It is my opinion that the words "conduct business" do not comprehend the operation of a minstrel show or the conduct of any transient enterprise which has no established residence or place of business but moves around from place to place; that the term "conducting business" as used in this statute means the carrying on of an established business in an established location, commercial in its nature, and useful and necessary to the public. See Roberts v. State, 4 Ga. App. 207, Headnote 4. Neither would a minstrel show be classified or included in the term "peddling". Therefore, a veteran would not be exempt from the occupation tax as imposed under Paragraph 41 of the General Tax Act of 1927 as amended in 1929 and 1931 unless the exhibition was given by local performers or the entire proceeds of the same were given to charitable or benevolent purposes.
In construing code section 1888 it has also been held that the certificate of the Ordinary as provided in this section does not of itself exempt the veteran from the payment of the license tax for doing business. Only a veteran who is actually disabled or indigent at the time the exemption is claimed is relieved by this Statute from the payment of a license tax for doing business. See Jones v. City of Macon, 36 Ga. App. 97; also Fairburn v. Edmondson, 162 Ga. 386. . Also in order for a veteran to be exempt from the payment of a license for the privilege of doing business in this State, the person claiming the exemption must be a resident of this State. Furthermore, the business which is being carried on by the veteran who claims exemption under this statute must be owned by himself and conducted in his own name. If a veteran conducted a business in partnership with another person who was not entitled to the exemption then the business would not be exempt.
The fact that a veteran holds the certificate of the Ordinary as provided for under Code Section 1888 does not exempt him from the payment of the tax. If, since the certificate of the Ordinary was Issued, the disability or the indigency of the veteran, upon which the certificate is based, has been removed, then the veteran is Iio longer e~empt. The certificate is only prima facie evidence of the fact of disability. The exemption is not based upon the certificate of the ~rdinary, but upon the fact that the owner of the business is a disabled or indigent veteran. See Coxwell v. Goddard, 119 Ga. 369.

8i
TAXATION-Disabled veteran not exempt from mileage tax
January 24, 1933 Hon. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
I acknowledge receipt of letter written to you by Mr. Wright, one of your motor carrier inspectors, in which he states that exemption from the payment of the mileage tax levied by Act of the General Assembly approved l\farch 31, 1931, upon Motor Carriers for Hire is being claimed by a certain disabled World War veteran.
Section 1888 of the Code of Georgia as amended (Section 84-2011, Code of 1983) exempts disabled World War veterans from the payment of license fees and occupation taxes for carrying on certain lines of business in this State. As to those occupation taxes which are purely revenue measures, such veterans are exempt, except where specifically excepted in the statute, but it is the opinion of this Department that the mileage tax levied on motor carriers for hire is not such an occupation tax as is referred to by this statute.
All of such taxes except the portion thereof needed for the enforcement of the Act are used in the maintenance, repair and construction of highways and bridges. The Act contains the following pertinent language:
"The tax levied hereunder is deemed by this General Assembly to be a reasonable charge against the motor carriers upon which the same is laid, as their fair contribution to the costs of constructing and maintaining the highways of this State, including bridges thereon, and for the purpose of enforcing this Act." While, therefore, the Act does in one sense levy a tax, it is in the nature of a toll or charge for the use of the roads, and I do not think that Section 1888 was intended to exempt disabled veterans from the payment of such a charge.
TAXATION-Movement of materials to build school house subject to mileage tax
January 26, 1934 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
Yours of the 25th instant inclosing a letter of Mr. T. B. Perry, dated the 23rd, has been received.
You desire to know whether a person hauling crushed stone from Camak, Georgia, which is shipped from the mines at Camak, Georgia, unloaded at Bellair, and hauled from there about two miles to what is known as Flowing Well School, which is a part of the Richmond County Schools, and hauling brick from Augusta to this same place for the erection of a school building, using the public highways, is exempt from the mileage tax as imposed under the Motor Carriers Tax Act of 1931 (Ga. L. 1931, p. 91).

88
It is my opinion that such an operation does not fall within the exemption granted under Section 2, Paragraph G of the Act. It is provided in this Section,
"The tax laid herein shall not apply to motor vehicles engaged exclusively in the transportation of agricultural, dairy, and/or: horticultural products from the farm to the market, or gin, or warehouse, or mill . . . . and from market or other points and places mentioned in this sentence to farms." The act defines what agricultural products are included under this Section and does not include in this classification such articles as crushed stone or brick. This paragraph also exempts the carriers of household goods and supplies to be used for farm purposes when being carried to or from the farm. Of course, since the stone and the brick spoken of in Mr. Perry's letter are not to be used for farm purposes, or as farm supplies, but to build a school, the exemption does not extend to the transportation of these products free of the mileage tax.
TAXATION-Persons hauling materials for highways under contract with State Highway Department subject to mileage tax
January 26, 1984
Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
Yours of the 25th inst. requesting an opinion as to whether or not the Georgia Motor Vehicle Carriers For Hire Act is applicable to vehicles being used for the purpose of transporting for hire, road and bridge building material from railroad site to construction jobs carried on by a contractor who is contracting with the State Highway Department to build the bridge, where the contractor in turn contracts with the carrier to haul the material from various points to the job over the public highways, has been received. . It is my opinion that the person or firm which is doing the haul~ng of these materials is subject to the payment of the mileage tax as 1mp6sed under the Motor Carriers Tax Act. As I understand it, the contract of carriage of materials is between the contractor who is building the bridge and the party doing the hauling. The contra;ct of carriage is not between the State of Georgia and the person domg the hauling.
I find no exemption allowed under the Act for such operations as are described in your letter of the 25th and it is my opinion that the P~rson or firm hauling the building materials for hire is subject to the mileage tax.

84
TAXATION-Movement of gasoline under specific contract subject to mileage tax
November 28, 1934
Hon. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
I have your communication submitting a copy of a contract between the Gulf Refining Company and M. J. Estroff of Louisville, Georgia, which contract provides for the transportation of gasoline, and requesting my opinion as to whether or not the operations conducted thereunder are subject to the mileage tax imposed by the Georgia Law.
This contract in substance and effect provides that Mr. Estroff shall furnish all equipment, pay all expenses of operation, and convey gasoline belonging to the Gulf Refining Company from the terminal of the Gulf Refining Company at Savannah to Louisville for a consideration of 1-3/4 per gallon on each gallon hauled.
In my opinion Mr. Estroff, in transporting gasoline under this contract, is a carrier of gasoline for hire within the meaning of the mileage tax act and is subject to taxation at the rate prescribed by that act.
MOTOR FUEL DISTRIBUTORS-Comptroller General has no authority to accept securities in lieu of bond required of motor fuel distributors
February 24, 1933
Hon. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
In answer to your request that this Department furnish you with an opinion as to whether or not you would be authorized to accept securities in lieu of the bond required by Section 7 of the Occupation Tax upon distributors of motor fuel, I wish to advise as follows:
Section 7 of the Act referred to as amended in 1929 provides that each distributor of motor fuels or kerosene engaged in such business in this State shall give a good and sufficient indemnifying bond payable to the State in a sum not less than $25,000.00 and that said bond shall be for the payment of occupation tax, the making of the monthly report and the annual registration, as hereinbefore set forth, and for the full, complete and faithful performance of all the requirements of the Act referred to. Said bond shall be made by a surety company authorized to do business in this State and the cost of the same shall be paid by the distributor. Of course, when the distributor collects less than $25,000.00 per month in taxes due the State, his bond shall be fixed in the discretion of the Comptroller General.

85
Since the provisions of the above section are explicit and unambiguous, in the opinion of this Department you should require the bond in accordance with the terms of the section referred to.
In the event that you should take an individual bond secured by Government securities or other collateral, although the bond may be absolutely good and solvent, yet, there is a possibility of such action causing additional trouble and expense involved in collecting same should it become necessary to do so.
The safer course, in the opinion of this Department, would be to follow the Act and require that bond be made in accordance with the provisions of said Section.
TAXATION-Clearing house scrip' not acceptable in payment of taxes but acceptable for collection
March 7, 1983 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
Receipt of your letter of even date inclosing original letter from Mr. G. A. Beattie, Secretary-Treasurer of the Wofford Oil Company and requesting an opinion as to whether or not you can accept clearing house scrip in payment of gasoline tax, acknowledged.
In reply to your inquiry I wish to advise that in the opinion ofthis Department you would not be authorized to accept said certificates as payment of gasoline taxes but should they come to you through regular channels of business you would be authorized to take them for the purpose of collection and the transferring of credit. If such certificates are issued in such manner and so as to be acceptable as pay specie promptly and when thus deposited to the credit of the State Treasurer, after a transfer of credit in the bank account is thus affected promptly, then I can see no reason why you would not be authorized to thus receive and handle them.
All taxes must be paid in gold or silver or in the bills of such banks a~ pay specie promptly unless specifically excluded by law or otherWise directed by the Governor. (Code Section 1013) (Section 925706, Code of 1933)
Checks given in payment of taxes, of course, are not payment, until checks themselves are paid.
You may accept the clearing house scrip in practically the same ma.nner in which you have heretofore accepted checks, provided the scnp is so issued to effect an immediate and prompt transfer of credit to the State Treasurer's account in the manner and form substantially the same as he has heretofore done through the medium of checks. The clearing house scrip, of course, would not be payment and until the actual transfer of credit takes place in the payment you would not be authorized to accept them as payment.
~ am not informed as to the rules and regulations under which s~r1p will be issued and neither do I know just what effect will be given them in so far as the transfer of credits are concerned.

86
Therefore, it is impossible at this time to give you a definite opinion as to whether or not such a medium of payment would be accepted by the bank so as to cause an immediate transfer of credit from the account on which drawn to the account of the payee.
I am returning herewith Mr. Beattie's original letter.
MOTOR FUEL DISTRIDUTORS-No loss deductible by distributor under act imposing tax
March 24, 1933 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
In reply to your request for an opinion as to whether or not you are permitted under the law of this State to allow deductions on the tax required of distributors of fuels and kerosene for loss, when the deduction is based upon gasoline and/or kerosene sold or used by the distributor, we wish to advise as follows:
Under the law of this State each distributor of fuels who engages in such business in this State shall pay an occupation tax of six cents per gallon for each and every gallon of such fuels (I) imported and sold within this State, or (2) imported and withdrawn for use within this State, or (3) manufactured, refined, produced, or compounded within this State and sold for use and consumption within this State, or used and consumed within this State by the manufacturer, refiner, producer or compounder. See Michie's Code, 1930 Supplement, Section 993 (296).
The term "distributor" is defined by Sections 993 (296) and 993 (296-a).
Under the provisions of Section 993 (300) all distributors of fuels and kerosene in this State are required to make monthly reports to the Comptroller General of all fuels and kerosene sold or used by them. Said report or return shall show the number of gallons sold or used and shall be sworn to before an officer of this State duly authorized to administer oaths.
Under the provisions of Section 993 (301) such distributor of fuels and kerosene shall pay the occupation tax of six cents per gallon on fuels and one cent per gallon on kerosene "as herein provided, to the Comptroller General of this State . . . and on or before the 20th day in each month thereafter." He shall pay to the Comptroller General said occupation tax on all fuels and kerosene sold or used during the immediately preceding calendar month.
Accordingly, where a distributor, in accordance with the provisions of law above referred to, makes a monthly report covering fuels and kerosene sold or used by him during the preceding month, the tax is imposed on the entire quantity so sold or used. Under the opinion of this Department you are not authorized or permitted to allow such deduction for loss by such distributor. You are required, in our opinion, to collect this tax on the entire amount of fuels and kerosene sold or used by the distributor during the month.

87
TAXATION-Airplane lines subject to motor fuel tax even though motor fuels used partly in interstate commerce
March 29, 1933 Ron. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of March 28th requesting an opmwn as to whether or not airplane lines are liable for the tax imposed upon gasoline and other motor fuels.
Under the decision by the Supreme Court of the United States in Eastern Air Transport, Incorporated v. South Carolina Tax Commission (285 U. S. 147, 76 L. Ed. 673), a state tax on the sale of gasoline for use by air transport lines in conducting interstate transportation across the State is not invalid, since the mere purchase is not so identified with such business as to make the sale immune from a nondiscriminating state tax on intrastate dealers.
In my opinion where an air transport company purchases gasoline in this State for use in operating its airplanes in interstate commerce the tax on the gasoline imposed by the Georgia Motor Fuel Tax Act becomes due and payable.
It is further my opinion that where an air transport company has gasoline shipped into Georgia in tanks and stores such gasoline in this State and subsequently withdraws such fuel for use in airplanes operated in this State, such air transport company is a distributor within the meaning of the term as defined by the Act of 1927, and is subject to the tax laid by that Act. This is true even though the gasoline may actually be used in part in intrastate commerce.
TAXATION-Refunds for overpayment of gasoline tax not authorized
April 11, 19SS Ron. W. B. Harrison Comptroller General Dear 1\Ir. Harrison:
According to your request I herewith furnish you my opinion in regard to the recovery of overpayment of gasoline tax in the amount of $280.32 by R..P. Watson of the Home Oil Company.
Reference is hereby made to the letter of Honorable Eugene Talmadge, Governor of Georgia, in regard to this claim, which said letter accompanied your request.
It appears from the file in this case that the Home Oil Company received during the period from November 21, 1925, to January 14, 1929, 566,482 gallons of gasoline and that they paid a tax thereon at the .rate of four cents per gallon. It also appears from said file that durmg said time this company sold 559,474 gallons and that their storage tanks were emptied on January 14, 1929. He files his claim h3;sed on the difference between the number of gallons actually received according to his invoices and the number sold according to his

88
claim, being a difference of 7,008 gallons at four cents a gallon or a total of $280.32. He also claims interest on said amount from January 14, 1929, at 8%, basing this claim for interest on the fact that the payment of the tax was made after protest had been entered with Honorable William A. Wright, who was Comptroller General at that time.
The question involved is whether or not the Comptroller General, with the consent of the Governor, would have a legal right to order a refund paid, and whether or not in such event the refund should be $280.32 or that sum with interest from January 14, 1929, and if interest, at what rate, whether seven or eight per centum.
We are not unmindful of the fact that the provisions of law as set forth in Code Sections 1101-1104 of Michie's Code of 1926 provide for the correction of mistakes in tax receiver's digests, for:
Under Code Section 1101 (Section 92-6501, Code of 1933) if a tax receiver should make a mistake in his digest it is the duty of the Comptroller General, with the sanction of the Governor, to correct such mistake by making the necessary entries in the Digest furnished by the receiver to the Comptroller General. When this is done the Comptroller General notifies the Ordinary and Tax Collector of the County from which such digest comes of the mistake and correction; and,
Under Code Section 1102 (Section 92-6502, Code of 1933) it is provided that if by reason of such mistake (in the digest), or from any other cause, a taxpayer's money is in the treasury for a greater amount than he is liable for, of which such officer is clearly satisfied, he may certify the same to the Governor, who shall, if he approves, draw his warrant on the Treasury in favor of such taxpayer for the proper amount, out of any monies not otherwise appropriated; and,
By Code Section 1102 (Section 92-6503, Code of 1933) the Comptroller General, with the sanction of the Governor, has the authority to authorize tax collectors to refund the amount of such tax contemplated by such mistake provided the amount is ascertained and determined before the tax collector has collected and paid the same to the Comptroller General; and,
By Code Section 1104 (Section 92-6504, Code of 1933) when any similar case arises which is doubtful in the opinion of the Governor, he shall refer the matter to the General Assembly.
It will be noted, however, that under the sections above referred to, that the question of voluntary payments is not considered but under these sections a reference is made to Code Section 4317, (Section 2Q--1007, Code of 1933), which deals with the question of voluntary payments and is as follows:
"Payments of taxes or other claims, made through ignorance of the law, or where the acts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and can not be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule."

89
The payment of this tax by this company, as will appear froi:n the statement of the Home Oil Company submitted in substantiation of its claim, was made under the provisions of the Act of the General Assembly approved August 10, 1921, as subsequently amended.
By the provisions of the Act of 1921 an occupatiOn tax of one cent per gallon was levied upon distributors of fuel upon each gallon of gasoline sold. It contained a provision (Section 3) requiring each distributor to register with the Ordinary of the County where engaged in selling fuels; and provided further (Section 4) that each distributor should keep and preserve all invoices and bills of fuels sold for a period of one year and submit the same to the Comptroller General; by section 5 such distributors were required to make quarterly returns of all fuels sold by them to others and of all fuels sold by such distributors at their service stations; and by section 6 these returns were required to be verified. By the provisions of Section 7 of this Act any distributor who failed to register or to make the returns aforesaid and to pay the tax when due or who failed to do any other act required under the provisions of said Act should be guilty of a misdemeanor and punished as provided in Section 1065 of the Penal Code.
By the Act of 1922 the Act hereinabove referred to was amended so as to provide that no construction should be given to said Act of 1921 so as to cause double taxation on any of the products specified, in said act, except where such products were shipped out of and back into this State for distribution, etc. (See Section 1, Acts 1922, page 20.)
By the provisions of the Act of 1923 the tax on fuel distributors was further amended by increasing the tax from one cent to three cents (Section 1, Acts 1923, p. 42); was further amended by adding a new paragraph requiring that the gasoline tax shall be paid into the State Treasury, and one-third of the fund to go into the general fund; one-third to the counties for construction and maintenance of public roads, the remaining one-third to be set apart as a special fund of the State Aid Road Fund to be credited to the State Highway Department for the construction of State Aid System of Roads, etc. By Section 2, pages 42 and 43, Acts 1923.
The provisions of the last named Act became effective October 1, 1923.
By the provisions of the Act of 1925 (Acts 1925, page 65), the tax on fuel was increased from three cents a gallon to three and one-half cents per gallon, with the proviso that the additional one-half cent he appropriated to the State Aid Road Fund for construction on the State Aid System of Roads.
By the further Act of 1925 (Acts 1925, pages 68-69) distributors of motor fuel were classified and such distributors were required to m!lke the same returns, register and pay the tax required of distributors selling fuels in the State and provided further (Section 3):
"That users of gasoline or other motor fuel shall pay the tax on the basis of the withdrawals or distribution from tank-cars or other original packages."

90
By the provisions of Section 3-A of this Act railroads were required to make, at the end of each day's business, a report to the Comptroller General showing all deliveries made by them of gasoline or other motor fuel made during said day's business, which reports shall give the name and address of the consignor, the name and address of the consignee, the car number and initial, the net weight of the shipment, the date of delivery.
By the provisions of Section 4 any person violating any of the provisions of said Act of 19Q5 would be guilty of a misdemeanor.
By the Act of 1927, (see page 104) the words "fuels", "distributor", and "kerosene" were defined. "Distributor" was defined as to include
"Any person, association of persons, firm, corporation, and political subdivision of this State, (a) That imports or causes to be imported, and sells at wholesale or retail or otherwise within this State, any of the fuels or kerosene as specified in the Act; or (b) That imports or causes to be imported, and withdraws for use within this State by himself or others any of such fuels or kerosene from the tank-car or other original container or package in which imported into this State; or (c) That manufactures, refines, produces or compounds any of such fuels or kerosene within this State, and sells the same at wholesale or retail or otherwise within this State for use or consumption within this State." (Section 1). By the provisions of Section 2 the tax was increased from three and one-half cents to four cents per gallon and was imposed upon fuels imported and sold or imported and withdrawn for use or manufactured and sold for use or consumption, or used and consumed within the State. By the provisions of this section the purchasing distributor was required to pay the tax herein imposed and the manufacturer and refiner were required to report all sales to the Comptroller General daily. (Section 2). By the provisions of Section 3 distributors were required to register with the Comptroller General on or before September 1, 1927, and yearly thereafter and by Section 4 were required to preserve all invoices for a period of one year and submit the same to the Comptroller General whenever required by him. They were required to make monthly reports to the Comptroller General, including therein all fuels sold or used during the preceding month. These reports were required to be verified. The tax of four cents provided under this Act was to become effective September 1, 1927, and included all fuels and kerosene sold or used during the month of September, 1927. By the provisions of Section 7 distributors were required to make bond and by the provisions of Section 8 any distributor who failed to register, or to make monthly returns, or to give bond, or pay the tax, or fail to do any other act required, should be guilty of a misdemeanor. The general provisions of the Act of 19Q7 became operative on September 1, 1927.
The provisions of the Act of 1927 remained in effect until after January 14, 1929, the end of the period covered by the claim of the Home Oil Company.

91

By the provisions of the Acts in force during the period involved,

to wit, from November 2I, I925, to January I4, I929, the Home Oil

Company as a distributor was required (I) up to September I, 1927,

to pay the occupation tax on gasoline "On the basis of withdrawal or distribution from tank-cars or

other original packages,"

and (2) from September 1, 1927, for the remainder of the period ending January 14, I929, on

"(I) Every gallon of such fuels imported and sold within the

State, (2) imported and withdrawn for use within the State,

(3) manufactured, refined, produced or compounded within the

State, and sold for use or consumption within the State, or used and consumed within the State by the manufacturer, refiner,

producer or compounder."

.

By the provisions of the Acts in force during the entire period any person who failed to pay the tax imposed and required was guilty

of a misdemeanor. In order to determine whether or not there is authority for the

refunding of the particular tax now sought to be recovered by the

Home Oil Company, it is necessary to construe the provisions of the

Motor Fuel Acts hereinabove referred to in connection with the provisions of Code Section 4317. (Section 2Q-1007, Code of 1933)

The first question that presents itself is whether or not the tax collected, and which is now sought to be recovered, was an illegal tax.

The second question for consideration is whether or not, provided

that such tax was illegal, it was paid under such circumstances as would amount to duress or an urgent necessity therefor in order to prevent the seizure of his person or property or to effect a release of

such person or property after seizure; and the third question to be considered is whether or not there is authority on the part of the

Comptroller General, with the approval of the Governor, to refund the tax, although the same might have been illegal and paid involuntarily.

From the provisions of the Motor Fuel Acts above quoted it will be observed that the tax imposed on such sales as were made prior

to September I, I927, was at the rate of three and one-half cents per gallon, and that this tax was imposed on the basis of withdrawal or distribution from tank-cars or other original packages. Therefore, w~atever portion of the tax is now sought to be recovered arises from shipments or receipts as shown by invoices prior to September I, I927, would not be a just claim on the ground that said portion of said tax was not illegal.

Since the facts disclosed by the affidavit do not show whether or

not any of the gasoline of the Home Oil Company was withdrawn for use ~uring the period of the time involved, but simply states that a certam number of gallons were sold during said time. It can not be de~ermined that the Home Oil Co. is justly and legally entitled to claim that the 7,008 gallons was a loss from natural shrinkage. Of

cou_rse such part of this 7,008 gallons which might represent a natural shrmkage prior to September I, I927, could not and would not con-

stitute any legal claim whatever and neither would the remaining portions which is claimed as a natural shrinkage be allowable unless and until it had been established that none of the gasoline was withdrawn for use or consumption.
Since September 1, 1927, the tax is at four cents a gallon as imposed on fuels imported and sold within the State, or imported and withdrawn for use within the State.
Thus, it is our opinion, that whatever portion of this claim is based upon gasoline handled prior to September 1, 1927, is wholly without merit; and, second, the remaining portion could not be classified as an illegal tax or a payment of tax in excess of the amount required by law, unless and until it were established that there was a difference in the number of gallons received and handled during the period from September 1, 1927, to January 14, 1929, and the number of gallons actually sold and/or withdrawn for use or consumption within the State. In our opinion the tax imposed subsequent to September I, 1927, was laid on the number of gallons sold and/or withdrawn for use or consumption within the State.
Should the Home Oil Company, by affidavit, establish to a reasonable certainty the fact that there was a natural shrinkage in some reasonable amount on the gasoline actually handled by it subsequent to September 1, 1927, and that of the number of gallons actually received during that time, a certain number were not sold or withdrawn for use or consumption, I think that whatever tax was actually collected on such natural shrinkage thus established would be in excess of the amount permitted under the statutes.
Should this be true the next question to determine would be as to whether or not the payment was a voluntary one.
If the payment of the tax was made under an urgent and immediate necessity therefor, or to release the person or property from detention, or to prevent an immediate seizure of the person or property, it can, in a proper proceding, be recovered, otherwise not.
Under the claim as filed the necessary facts required to show such urgent necessity are not disclosed. It does not appear that there was any misplaced confidence, artifice or deception on the part of the Comptroller General; it docs not appear that there was any threatened seizure of the person or property of the claimant; it does not show that there were demands and threats of the persons clothed with governmental authority to carry them into execution by arrest and prosecution. The only thing that docs appear is that the payment was made after protest was entered with William A. Wright, the Comptroller General. The mere fact that the protest was entered is not sufficient to prevent the payment from being a voluntary one.
While it may be inferred that the claim is based upon the fact that duress or coercion was claimed as the impelling or moving fact of the payment made which he now seeks to recover, yet the facts alleged in the affidavit do not constitute either coercion or duress. First National Bank of Americus v. Mayor of Americus, 68 Ga. 119.
"The coercion or duress which will render a payment involuntary,

98
must, in general, consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making payment." 2 Dillon on Corporations, Paragraph 942, (Srd Edition); Union Pac. R. R. Co. v. Bd. of County Commissioners of Dodge County, 98 U.S. 541, 25 L. Ed. 196; 2 Dillon on Corporations, Paragraph 947. A claimant who bases its right of recovery of taxes paid upon an involuntary payment, or payment under duress, etc., must bring itself within the strict rule which the law has fixed, otherwise he must abide the consequences of his own default and negligence. If the payment was voluntary there can be no recovery. In the case of First National Bank of Americus v. Mayor of Americus, 68 Ga. 119, it was held: "To recover taxes paid to a municipal corporation, it must appear that the tax was unauthorized; that the amount was actually received by the corporation; that it was paid under compulsion to prevent the immediate seizure or sale of plaintiff's goods, or arrest of his person. Voluntary payment accompanied by protest will not suffice." Therefore, even though the tax had been illegally assessed by the taxing power where there was no misplaced confidence and no artifice or deception or fraudulent practices on the part of the Comptroller General at the time payment was made, the payment would be voluntary and could not be recovered in any event. See also in this same connection Calloway v. City of Milledgeville, 48 Ga. 809. It has been held by the Supreme Court in the case of Hoke v. The City of Atlanta, 107 Ga. 416, where the payment of an illegal assessment has been made merely to prevent a levy upon property, it cannot be said that the payment was made under duress and was therefore involuntary, and more especially when a competent and available legal remedy to prevent the levy was open to the person paying.
Therefore, although the collection of a payment of the taxes might have been unauthorized, in that event if the payment was voluntary there can be no recovery. . On the other hand it has been held that where payment of an Illegal tax has been made under urgent immediate necessity, or to prevent an immediate seizure of person or property that it can be recovered back. See Dennison Mfg. co. v. Wright, 156 Ga. 789. In that case it was held that where the payment was made to prevent prosecution and under protest the payment would not be voluntary. By the provisions of the Act there construed failure to pay the tax imposed was a misdemeanor and would subject the person failing to pay same to prosecution. Under the facts alleged in the petition the Court held that the payment of the tax was not voluntary.
~n dealing with the third question hereinabove referred to it is the opmion of this Department that should it be determined upon an

examination of all of the facts and circumstances involved that a portion of the tax sought to be recovered was collected without authority of law, and should it be determined that the payment thereof was made under such facts and circumstances as would make it an involuntary payment, even in that event, such claim appears to be barred by the Statute of Limitations and, in my opinion, where the party could not by resort to the courts recover such claim against the State, even with the State's consent to be sued, that the Comptroller General and the Government would not be authorized to grant the refund of such taxes.
There is no specific provision whatever in the Motor Fuel Acts authorizing the refund or repayment of any taxes paid under the provisions of said Act. It does not appear what portion of said taxes were unauthorized. Such facts do not appear upon which it can be determined that the payment was made involuntarily so as to permit recovery. It does appear that the claim would be barred by the Statute of Limitations in the courts.
Therefore, I am of the opinion that the claim is certainly sufficiently doubtful as to require that the matter be referred to the General Assembly for such action as that body might see fit to take.
Under the 156 Georgia cited above if the facts in this case were sufficient to warrant such an action, first, if the tax collected were unauthorized and illegal, (2) if it were paid involuntarily or under duress, (3) if the official demanding payment had no authority to do so, in that event the claimant might maintain an action against the Comptroller General individually who thus acted without lawful authority and beyond the scope of his official power. In addition to the 156 Georgia, supra, see the case of Setrachan Shipping Co. v. Savannah, 168 Ga. 309, and especially pages 314 and 315 of the opinion. Such an action would necessarily have to be determined by the particular facts of the case.
Since the particular tax in question has been allocated, paid out and used by the public, and since there is considerable doubt as to whether or not the tax was illegal in the first place; and since it does not appear that the payment was made involuntarily in the second place; and since it does appear that if claimant has any claim it is barred by the Statute of Limitations and that the claimant has not exercised the due diligence required by law, and since the law does not make specific provision for the refund of this tax, I do not think there is authority for refunding the tax as claimed.
TAXATION-Motor fuels sold for use in carrying on work of Civilian Conservation Corps not taxable
July 28, 1933 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your communication requesting an opinion as to whether or not the state tax on motor fuels sold for use in carrying on the work of the Civilian Conservation Corps is collectible.

95
It is the general rule that the State cannot, directly or indirectly, tax the Federal Government. While the Conservation work now being carried on in Georgia is conducted under the supervision of the State and the personnel of the Civilian Conservation Corps is employed by the State, the entire cost of these operations is being paid by the Federal Government. Consequently, any tax collected on gasoline sold for use in this work would be paid by the Federal Government. For that reason I do not think the state tax on motor fuels can be collected on gasoline sold for use by the Civilian Conservation Corps.
Before allowing such exemption, however, in my opinion it is the duty of the Comptroller General to require satisfactory proof that any motor fuel claimed to be tax exempt for this reason is actually sold for use by the Civilian Conservation Corps. I think the evidence of exemption should be authenticated by the proper officials of the Federal Government who are supervising this work. I do not think you would be authorized to accept the mere affidavit of the seller that the gasoline was sold for such purpose, for the reason that such affidavit would necessarily be based on mere hearsay. The certificate of exemption should be executed by some official or employee of the Federal Government authorized to do so.
TAXATION-Motor fuel sold to United States or i:ts employees on official business not subject to taxation by State
October 80, 1933 Mr. A. E. Kocher, Technician (Scientist, Soil Erosion) U. S. Department of Agriculture Statesville, North Carolina My dear Sir:
Your letter of October 27th is received. There is no statute in Georgia expressly exempting gasoline sold to the Federal Government from the State tax.
I think that under general principles of law, gasoline purchased by the Federal Government or by any employee of the Federal Government for use on official business of the Federal Government is exempt from the State tax. . It is, of course, well settled that a State cannot either directly or mdirectly tax the national government. 'Vhere gasoline is purchased by an employee operating an automobile on official business of the Federal Government, a requirement that such employee pay a. State tax on gasoline so purchased would necessarily be an indirect tax upon the government itself. This is true, even though the.Federal Government may reimburse such employee on a mileage basis, since it must be presumed that the rate of mileage fixed by .the Fed~ral Government is based upon the cost of operating the automobile, and that any addition to such cost by the imposition of a ~tate tax would fall indirectly upon the Federal Government in that It would necessitate an increase of the mileage allowance.

96
I have no authority to give you an official opinion on this question. What is stated above represents my unofficial and personal views. If the proper agency of the State calls on me for an official opinion, I will be glad to express the same. It is my understanding, however, that the State of Georgia does not undertake to collect gasoline tax on gasoline sold to the Federal Government or to employees of the F~deral Government for use in operating automobile on official business. It is also my understanding that the Federal Government applies the same exemption as to the Federal tax on gasoline sold to the State or for use in operating automobiles on official business of the State.
TAXATION-Contractors operating exclusively on Fort Benning reservation subject to motor fuel tax
March 23, 1934
Mr. Wm. A. Leonard Attorney at Law Columbus, Georgia Dear Mr. Leonard:
Your letter of recent date asking my opinion as to whether or not a contractor operating his trucks exclusively on Fort Benning Reservation would have to pay the State Gasoline tax, and stating that you did not think he would be liable for the State gasoline tax because he does not use the State roads but only the roads on the Fort Benning Reservation which is government land, and secondly, because the contract is a governmental agency and he is forced to use drivers furnished him by the National Re-employment Service, received.
This question is answered by the Supreme Court in the case of Trinity Farm Construction Co. v. Alice Lee Grosjean, Supervisor Public Accounts for the State of Louisiana, decided March 5, 1934. The Trinity Farm Construction Company had contracts with the United States Government for the construction of levees in Louisiana to control the waters of the Mississippi. It consumed much gasoline in the operation of machinery employed on the work. It imported its supply of gasoline from other states in car load lots, placed it in central tanks and distributed it to other tanks on its right of way in the proximity of the machines. The State of Louisiana undertook to impose a tax of 5 per gallon on the gasoline imported and used by the Trinity Farm Construction Company.
The Supreme Court, in a very concise opinion rendered by Mr. Justice Butler, held as follows:
"If the payment of State taxes imposed on the property and operations of appellant (Trinity Farm Construction Company) affects the Federal Government at all, it would at the most give rise to a burden which is consequential and remote and not to one which is necessary, immediate or direct. Thomas v. Gay, 169 U. S. fl64, 275; Metcalf & Eddy v. Mitchell, supra, 5fl4, et. seq.,

97
Wheeler Lumber Company v. United States, 281 U. S. 572, 579. Appellant's claim of immunity is without foundation." As I understand your letter, a contractor has a contract to do certain work, evidently for the Government on the Fort Benning Reservation. While the work may be done on the Fort Benning Reservation, the trucks evidently have to go and come. There is no law in this State which exempts the tax on gasoline not used upon the public roads of this State. All gasoline used in stationary machines, tractors, etc., is subject to the State tax. Fort Benning is in the State of Georgia, and in my opinion contractors like those to whom you refer, using gasoline must pay the State tax.
TAXATION-Motor fuels sold to State institutions subject to taxation
April 21, 1934
Hon. W. B. Harrison Comptroller General Dear 1\fr. Harrison:
Yours of the 21st instant requesting an opinion as to whether or not sales of gasoline and kerosene made to State institutions should be exempt from the tax on motor fuel and kerosene distributors as imposed under the Act of 1929 (Georgia Laws 1929, p. 104), has been received.
Paragraph one, Section one, of Article four of our Constitution declares the right of taxation is sovereign, inalienable and indestructible in the State, and Paragraph two of this same Section provides that:
"The General Assembly may by law exempt from taxation all public property." Civil Code 6554. (Sec. 2-5509~, Code of 1933). However, the Act of the legislature imposing a tax on motor fuel and kerosene distributors made no exemptions whatsoever to any person or corporation, political subdivision or public institution of the State, from the operation of this tax. . By many authorities, the State, independently of the above ImJ?lication arising from the constitutional grant of authority to the !egislature to exempt public property from taxation, may expressly Impose or authorize such levies upon public property, in the absence of constitutional exemption. There is no constitutional exemption relative to this tax; neither has the legislature provided a statutory exemption therefrom. Consequently, it is my opinion, that sales of gasoline made to State institutions such as the sanitariums at ~illedgeville and Alto are not exempt from the payment of the tax II?posed by the Act of 1927, as amended by the Act of 1929. (Georgia Laws 1929, p. 99). See Wright v. Fulton County. 169 Ga. 354.

98
COUNTIEs-Designation of county depositories
January 13, 1933
Hon. C. R. Mason, Chairman Commissioners of Roads and Revenues Morgan County Madison, Georgia
Dear Sir: Supplementing my letter to you of yesterday and referring particu-
larly to the question of the designation of a depository in which the treasurer of the county shall keep the county fztnds, I wish to advise as follows:
The county treasurers are charged with the keeping of all of the county funds coming into their hands as such, and they occupy the status which amounts to an insurer of the county's funds. The county board of commissioners would not be acting in the discharge of any official duty imposed by law upon them in designating a depository for the treasurer.
The treasurer may select any bank in which to keep the county funds in his hands and this is true irrespective of the fact as to whether the county commissioners have designated such depository or not. Code Section 578 (I) provides that "the treasurers of the several counties of this State are hereby authorized to deposit in any bank or banking institution which has been designated by law as a depository for the funds of the State the county funds which may come into their hands as county treasurers. Act 1917, p. 199". (Section ~3-Imn, 1933 Code)
The following Section, to wit; 578 (~). (Section ~3-10~1, Code of 1933) provides:
"Any depository of the State funds so selected by the county treasurer to be a depository of the county funds shall, in addition to the bond given to the State as security for the money of the State deposited in said bank, give to the county treasurer a bond in an amount sufficient to protect him from any loss, which bond shall be conditioned to fully account to him for all county moneys that may be deposited by him as such treasurer under the terms of this Act. Acts 1917, p. 199" The above provisions of the Code are directory rather than mandatory.
Since the law does not require that the county board of commissioners designate a depository, and since the treasurer might disregard such action on the part of the county commissioners, if taken, I am of the opinion that the better practice would be to suggest that the treasurer follow the provision of the above quoted Code Sections. These Sections provide a way in which the county treasurer may protect himself by the bond to be given for the county funds which the treasurer might deposit in such bank.
In my opinion the county commissioners would not be individually liable for loss which might occur as result of designating a depository in which the county treasurer might keep the county funds, yet in

99
my opinion the better practice would be to leave that matter to the discretion of the county treasurer, who is liable to the county for all of such funds of the county as might come into his hands.
COUNTIEs-Duties of County Tax Assessors
March 3rd, 1933 Mr. Frank Hutchinson Tax Commissioner LaGrange, Georgia Dear Sir:
In reply to your letter of February ~5th in which you ask, "Does the Act creating the Board of County Tax Assessors make it the duty of such Board to assess all property that is not returned to the Tax Receiver by May first of each year, or is it the duty of the Tax Receiver under Sections 1057 and 1059 of the Civil Code of 1910, to notify and assess all property that has not been returned to the receiver?" I wish to advise as follows: Under Code Section 1057 the Tax Receiver has the right and it is his duty to call upon all delinquents to make a return of their taxes, and this duty imposed upon him involves some discretion and judgment on his part. See Richmond County v. Steed, 150 Ga. ~~9. Under Section 1059, when the delinquent refuses to return his property after notice given him it is the duty of the Tax Receiver to assess such property for taxation from the best information he can obtain as to its value and notify the delinquent of the valuation. This assessment is final unless the taxpayer raises the question that it is excessive. In that event the further procedure shall be the same as provided by law when the value of returned property is arbitrated. This does not necessarily take from the Board of Tax equalizers any of its powers or duties under Code Section 1116 (11), (Section 92-6308, Code of 1933). It is the duty of this Board to examine all the returns and if any taxpayer has omitted from his return any property that should be returned or has failed to return any of his property at a just and fair valuation the Board proceeds to. correct such return as provided in Paragraph 1116 (11). The Primary purpose of the Board of Tax Assessors is to equalize taxes as between the individual taxpayers so that each taxpayer shall pay as n.ear as may be, only his proportionate share of taxes. Under ~ectJo~ 1116 (1~) it is the duty of the Board of Tax Assessors to mves~1gate and inquire for the purpose of ascertaining what property Is subject to taxation in the county and to require its proper return .and under section 1116 (13) they may provide the means of
ascertaming the value for taxation of any property not appearing
0 the digest of the preceding year where there has been a change 0 ownership, etc. In the event that there should be other delin9Uents which might escape the Tax Commissioner or Tax Receiver, ~ rould be the duty of the Board to see that the property of such e mquent is properly returned and assessed for taxes.

100
The valuation placed upon property by the Tax Receiver as provided in Code Section 1059 becomes final and binding on the taxpayer unless he raises the question that it is excessive in which event he would have a right to contest the matter as provided for contesting the assessment made by the Tax Receiver. If this was not done by the taxpayer and the Board of Tax Assessors did not see fit to change it, it would be final. If he did thus contest the valuation placed upon the property by the Tax Receiver, after the arbitration, he might again take the matter up with the Board of Tax Assessors who, in the discharge of their duties of equalizing taxes may see fit to either raise or lower the assessment thus made.
It was not the purpose or intention of the law setting up the Board of Tax Assessors to repeal the provisions of the law with respect to the duties of the Tax Receiver in assessing property for taxes, etc.
COUNTIEs-Rates for legal advertising
August 14, 1938 Mr. E. P. Hall, Jr. Walker County Messenger LaFayette, Georgia
Dear Sir: I have your letter requesting an opinion as to whether or not the
publisher of the official newspaper of the County is entitled to charge for an advertisement amounting to less than a hundred words at the rate of $1.00 for each insertion or whether the charge should be pro rated according to the number of words.
Under the law I cannot give you an official opinion on this question but I am glad to give you an unofficial view about the matter.
Section 6066 of the Code of 1910 as amended (Section 39-1105) provides as follows:
"The rates to be allowed to publishers for publishing legal advertisements in this State shall be as follows: For each one hundred words, the sum of one dollar for each insertion for the first four insertions; for each subsequent insertion, the sum of fifty cents per hundred words. In all cases fractional parts shall be charged for at the same rates; and it shall not be lawful for any ordinary, sheriff, coroner, clerk, marshal, or other officer to receive or collect from parties, plaintiff or defendant, other or greater rates than herein set forth." (Acts 1878-9, p. 81; 1920, p. 86.) In the case of Groover v. Cook, administrator, 113 Ga. 612, the Supreme Court construed this section. Under the construction there given the section, I am of the opinion that the publisher is entitled to charge $1.00 per hundred words or fractional part thereof for each insertion up to four and for each additional insertion fifty cents per hundred words or fraction thereof. The case cited does not deal with facts identical with those you give since in 'that case the advertisement contained only 48 words.

101
However, the reasoning of the Supreme Court in the Cook case in the construction given by the Supreme Court to the words "at the same rates" convinced me that the construction given above is the proper construction of the section.
COUNTIES-PERSONAL PROPERTY taxable in school district in which owner lives October 23, 1933
Hon. 0. B. Brown, Chairman Stellaville School District Stellaville, Georgia Dear Mr. Brown:
Yours of the 18th instant received. Under the law, I am prohibited from giving you an official opinion relative to the questions asked in your letter. However, I am glad to give you my own personal opinion concerning the same. You desire to know which school district is entitled to the funds derived from a local school tax, the district in which personal property lies, or the district in which the owner resides, when the owner resides in a different district from the one where the property is situated. The general rule with respect to taxation is that real estate is taxed in the county in which it is located, personal property is taxed at the residence of the owner, when said owner is a resident of this State. This principle was followed in the recent case of O'Neal v. Whiteley, 170 S. E. 376, which case was decided by the Supreme Court on August lOth of this year. In the opinion Judge Bell said: "Personal property, in the absence of any law to the contrary, follows the person of the owner, and has its situs at his domicile." I also refer you to the case of County of Walton v. The County of Morgan, 120 Ga. 548, in which this same principle was also announced. It is therefore my opinion, based upon these decisions and the. general law relative to taxation, that the owner would be taxed upon his personal property in the local tax district in which he resides and that this tax belongs to this school district rather than to the district in which his personal property is situated. The reason for this rule is that the benefits derived from the taxation will be enjoyed by the taxpayer in the district in which he resides, in all likelihood.
COUNTIES-Compensation of County Commissioners for certain purposes; extra compensation for added duties not permissible January 4, 1934
Mr. C. A. Williams Attorney at Law Alma, Georgia Dear Mr. Williams:
Your letter of recent date, relative to the compensation of members of the Board of Commissioners of Roads and Revenues of Bacon County for overseeing work done by men working the county roads under provision of Federal relief funds, has been received.

102
My official duties are restricted to advising the Governor, State House officials and members of the General Assembly. Therefore, this opinion must be considered as unofficial and not binding upon the authorities of your county.
You refer to Section 9, page 493, of the Acts of 1927, which provides for the compensation of the members of the Board of Roads and Revenues of Bacon County. This Section fixes their compensation at $4.00 per day for attending meetings of said Board and provides that their annual compensation shall not exceed $100.00. You desire to know whether there is any general provision of law which would prohibit these county commissioners from performing this extra service for the county and voting themselves extra compensation to be paid from general county funds.
Section 7 of the Act of 1927, page 492, prescribes the duties of the members of the Board of Roads and Revenues. In said section it is provided that this body "shall have exclusive jurisdiction over and control of all county matters". It is my opinion that the county commissioners have a right to supervise the work of the men employed with Federal relief funds, but they are without authority to vote themselves extra compensation to be paid from the general county funds for this work, as the same falls within the scope of their duties as prescribed by law creating the Board of Commissioners of Roads and Revenues of the county. Such action on the part of the Board of Commissioners would be against public policy. The general principles of law relative to the contracts of public officers are outlined in 22 R. C. L. 460, section 121, a section of which we quote:
"It is also a well settled rule that a public officer cannot lawfully, on behalf of the public which he represents, contract with himself personally for the performance of services, and if he renders such services and the express contract of payment is void by reason of public policy, he will not be permitted to recover on a quantum merit." Also, in 46 C. J., page 1017, section 242, we find this principle: "Where the duties of an officer are increased by the addition of other duties germane to the office without provision for compensation, the officer must perform such duties without extra compensation. So, an officer is not entitled to extra compensation because additional duties pertaining to the office have been assumed by him or imposed upon him by the exigencies of the office." It is clear, from a reading of the act creating the Board of Commissioners of Roads and Revenues for Bacon County that Section 9 of said Act provides the exclusive compensation for the acts performed by the members of said Board in carrying out the duties of their office.
In support of this opinion, I refer you to the case of Twiggs v. Wingfield, et al., 147 Ga. 790, in which the Supreme Court held:
"A public officer takes his office cum onere, and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished. He

103
cannot claim extra compensation for the performance of additional work within the line of his official duty, unless additional compensation is provided by competent authority." It is my opinion that the only competent authority which could provide additional compensation in the case under consideration is the Legislature. It was said, in the opinion of the Court in the above cited case, in deciding a question of this same nature: "When the salary (of a public officer) is inadequate he is at liberty to resign. To allow an increase in his salary with every increase of his official duty would work an intolerable mischief." The Court quoted the following excerpts from one Dillon, on Municipal Corporations, Section 772: "It is a well established and salutory doctrine that he who is entrusted with the business of others cannot be allowed to make such business an object of pecuniary profit to himself. . . . . . . It is based upon principles of reason, morality, and of public policy." It was said by the Supreme Court in the case of Mayor, etc. of Macon, v. Huff, 60 Ga. 221, that: "So the current of Georgia policy, both in legislative and judicial channels, runs steadily to one direction and to one point, that no man who is agent or trustee for another, whether a private or public agent or trustee, shall have the opportunity to be led into the 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." Also, see the authorities cited on page 582 in the case of Cochran v. City of Thomasville, 167 Ga. Reports. It is, therefore, my opinion as stated above, that any action of the members of the Board of Roads and Revenues in voting themselves additional compensation for overseeing the work of men working on the county roads under Federal relief provisions would Qe against public policy and void.
COUNTIES-Clerk of Superior Court not authorized to record Federal mortgages at flat rate rather than fee rate
March 21, 1934
Mr. P. 0. Sigler Farm Credit Administration Crop Production Loan Office Washington, D. C. Dear Mr. Sigler:
Yours of the 14th instant requesting an opinion as to the authority of the clerks of the superior courts of this State to record Federal crop mortgages and bills of sale for a flat rate of $1.00, has been received.
My duties being restricted by law to the official business of this State, I cannot give you an official opinion relative to your question.

104
However, I am glad to give you my own personal views and a resume of the law on this subject.
It is necessary to record the bill of sale in order to provide record notice sufficient to the full protection of the interest of the government in preserving priority when a bill of sale is given by the farmers covering crops. This is provided under Civil Code Section 3257, as amended by the Act of 1931, page 153, (Section 67-102, Code of 1933.)
Under the 1930 supplement of the Civil Code, Section 5995 provides a fee of twenty cents per one hundred words to the clerks of the superior courts for recording liens, deeds, mortgages, or other instruments in counties of less than 50,000 population. The clerk's fees for such services in other counties is set at fifteen cents per hundred words. These fees include the indexing of the instrument.
Under Civil Code Section 5995 of the Civil Code of 1926, (Section 24-2727, Code of 1933) the following fee is fixed:
"For examination of records and abstract of result._______________$1.50."
This fee covers the recording fee, and this same section provides: "For certificate and seal, each__________________________________________________$0.50."
A bill of sale merely filed for record would not be sufficient to preserve the priority to the lands by any notice to the public. The instrument should be indexed and recorded as provided by law. The necessary items of cost under the laws of Georgia, legally collectible by the Clerks for service necessary to be performed by him in this connection are as follows:
''Filing and docketing--------------------------------------------------------------$0.10 Recording Bill of Sale and waiver in counties of less than 50,000 population 20 per hundred words. In other counties 15 per hundred words. "For examination of record and abstract of resulL..........$1.50 "Priority certificate and seal of the clerk____________________________$1.00"
I wish to refer you to the Eighteenth Opinion Attorney General, 491, October 21, 1887, from which we quote:
"Where a State imposes a tax upon the registration of deeds, and a deed to the United States conveying lands within such state was put on record by an agent of the government: Advised that there being no provision in the State law exempting the registration of deeds to the United States from the tax, the Government is properly chargeable therewith, and that it should be paid." It will be noted that there are no exemptions allowed by the Georgia law from the fees to be charged by a clerk of the Superior Court, as set out under Code Section 5995.
I also cite you to 53 C. J. 617, Section 25, wherein the general principles of law relative to such matters is stated as follows:
"The fee fixed by statute for filing a paper covers every act necessary to be done in order to complete a legal filing thereof, and nothing may be charged for doing anything in connection with the paper not necessary to a valid filing. Where a statute provides the fee which may be charged for recording an instrument, such a fee is an arbitrary charge. Under such a statute, it is the duty

105
of the recordinf! officer to charf!e such fee for recordinf! each instrument, and no officer has authority to change the fees or to depart from the terms prescribed." It is my opinion that the clerk of the court recording bills of sale for the Federal Government, or crop mortgages, would not have any authority under the laws of Georgia to depart from the schedule of fees as prescribed by the statutes of this State. It is clearly within the province of the legislatures of the various states to prescribe fees for public officers, and the same cannot be changed except by the authority of the Legislatures. In the case of Hill v. Rae 62 Mont. 378 158 Pac. 826, the Supreme Court of Montana held that a statute which provided for a system of loans to farmers in order to aid agriculture, and which exempted mortgages made under the provisions of the statute from recording fees, to be invalid.
TAXATION-Interest on tax executions
April 27, 1934 Hon. C. H. Hutcheson, Chairman Board of County Commissioners Clayton County Jonesboro, Georgia Dear Mr. Hutcheson:
I have your verbal request for an opinion as to whether or not executions for ad valorem taxes bear interest.
Under the law I am authorized to render opinions only to the departments of State government. Therefore, this opinion is necessarily unofficial.
Section 1144 of the Georgia Code (Section 92-7601, Code of 1933) is as follows:
"All executions issued for taxes due the State or any county thereof, or any municipal corporation therein, whether issued on assessments for permanent improvements of streets or sewers of said municipal corporation, or otherwise, shall bear interest at the rate of seven per cent per annum from the time fixed by law for issuing the same: Provided, that this section shall not apply to taxes or tax fi. fas. issued by any municipal corporation imposing penalties for failure to pay taxes." In the case of McWilliams v. Jacobs 128 Georgia, 375, 378, the Supreme Court held that the section just quoted, properly construed, does not declare that taxes as such shall bear interest, but only that an execution for taxes shall bear interest. However, when the execution is issued, it bears interest at the rate of 7% from the first day that it could have been issued. Georgia Railroad Co. v. Wright 125 Georgia, 589, 591 (21).

106
It is my opinion that under the code section cited when executions for taxes are issued against any person, firm or corporation, including those corporations which are required to make returns to the Comptroller General, such executions bear interest at the rate of 7% per annum from the first day that the execution could have lawfully been issued, and this is true even though the execution may not be issued until a later date.

COUNTIES-Fees of clerk and sheriff of superior court for specified services; compensation of sheriff for removing a prisoner from any county and for bringing fugitives from justice to the county where crime was committed

Hon. Wm. H. Key Monticello, Georgia

My dear Senator:

Referring to the memorandum left in my office by you a few days

ago, I beg to advise as follows:

'

Of course, you know that I am not authorized to render an official opinion on the question of this sort. I can only render offi<;ial

opinions at the request of the Governor or the head of some department of State government concerning matters in which the State as such is interested. Therefore, what I have to say expresses merely

my personal and unofficial views.

Section 1007 of the Penal Code (Section 27-2401, Code of 1933) is the section in question. It originated apparently in Cobb's Digest at page 841. It is there provided that:

"On the trial of all cases where the party, if found guilty, to be subjected to confinement in the penitentiary or to any criminal

punishment, it shall be the duty of the presiding Judge to have the testimony in any such cases taken down; and in the event of the jury rendering a verdict of guilty the testimony shall be entered on the minutes of the court on a book to be kept for that purpose." The courts have held under this section that the presiding judge

himself could take down the testimony or he could have it done by another person. This statute was in force long before the passage

of the Act of 1876 provided for court stenographers, and it has been held that the taking down of testimony as referred to in the section as amended by the Court Reporter Act of 1876, includes both the act of taking it down and the act of transcribing the stenographic

notes. I have some doubt as to whether the original statute found in Cobb's Digest was not repealed by the Act of 1876. Since however, it has been carried forward in the later code I presume it should be treated with as still of force.

I think the kind of testimony the original Act contemplated having the clerk record on his minutes was the memorandum required to be

kept by the Act referred to; I do not think the original act had in contemplation such an exact stenographic report as is made in

107
criminal cases. However, this may be, I find no provision of law which would authorize the payment by the county to the clerk for such service. Section 1133 of the Penal Code fixes the compensation of the clerk
"For transcribing record and evidence in State cases, per one
hundred words_------------------------------------------------------------------15 .'' There is no provision made for payment out of the county treasury and I am of the opinion, therefore, that report be taxed as cost in the case.
Your second question relates to Section 1134 of the Penal Code (Section 24-2823, Code of 1933) which provides for compensation to the sheriff for removing a prisoner from any county and for bringing fugitives from justice to the county where the crime was committed, to be paid out of the county treasury upon the approval of the County Commissioners or Ordinary. By amendment to this Code Section adopted in 1918, provision was made for compensation to the sheriff
"For personal services rendered out of the county on official business authorized by the county authorities, per day............$3.50." I do not think the provisions of the Act of 1918 take the place of the provisions of the Code Section compensating the sheriff for bringing a fugitive back to the county. In that case the sheriff is to be governed in incurring the expenses by the facts and circumstances of the case, since it is his duty to arrest offenders against the State law, when he has a warrant for that purpose, whereever they may be found in the State, and to return them to the county for trial. I think he is authorized to perform this duty and to charge the county per diem fixed by law, with or without the consent of the county authorities obtained in advance. In all other cases, however, in which he acts out of the county on official business, the trip must be authorized in advance by the County Authorities. There is a very well considered case, Walton County v. Dean 23 Georgia Appeals, 97, which throws some light on the question and in the case of Polk County v. Crocker 112 Georgia, 152, the Supreme Court held that there was no provision of law which authorized the payment out of county funds to a sheriff for serving subpoenaes before the grand jury. I think this case settles any question as to the right of the clerk to charge the county for recording evidence in criminal cases.

108
COUNTIES-Time for tax commissioner or tax collector to pay over taxes in his hands to county
October 19, 1984
Hon. Claude H. Hutcheson, Chairman
Board of County Commissioners Clayton County Jonesboro, Georgia Dear Mr. Hutchinson:
I have your letter of October 19th requesting that I advise you the law as to the time for making payments to the county by the county tax commissioner on account of county taxes.
The Act of 1925 (Georgia Laws, 1925, p. 79, Michie's Code 1926, Section 1216 (2), 1216 (8), 1216 (4) provide as follows:
"Said tax collectors, county tax commissioners, sheriffs, and constables shall each pay over, from time to time, the county taxes to the proper officers, as now required by law, so soon as there is collected five thousand dollars and if he shall fail to collect said sum during any two weeks, he shall then pay over on Saturday all he has collected during the prior two weeks, together with a list of taxpayers, and the amounts paid by them, during said period. "(3) The tax collector in each of such counties shall make duplicate reports every two weeks to the Comptroller General and the county authorities of the aggregate amount of taxes collected during said two weeks, naming separately the amount of taxes collected for the State and the county, and shall swear that the same is a correct report of the taxes collected as aforesaid. "(4) If any of such tax collectors fail or refuse to make said payment, or if he make a false return, or if he fail or refuse to file such list as required, it shall be the duty of the Comptroller General, or the Ordinary, or county officer having charge of the county affairs, as the case may be, to report said facts to the Governor, and it shall be the duty of the Governor to cause a notice to be served on said tax collector, calling on him to show cause why he should not be removed from office, and if he fails to make a proper excuse within ten days, it shall be the duty of the Governor to remove him." It is my opinion that under this Act it is the duty of the tax commissioner of your county to pay over to the county treasurer every two weeks all county taxes collected by him during the preceding two weeks. It is also his duty at the same time to file with the county treasurer a list of the persons paying such taxes and the amounts paid by each one. If at any time the tax commissioner has on hand five thousand ($5,000.00) Dollars of county taxes it is his duty to pay the same over to the county treasurer, irrespective of the two weeks provision, but he must make payment to the county at least once in every two weeks regardless of the amount collected during that time. In addition to filing the list with the county treasurer, it is the duty of the tax commissioner to make a duplicate report every two weeks to the Comptroller General and to the county commissioners showing

109
the amount of taxes collected during said two weeks, listing separately the amount of taxes collected for the State and the amount collected for the county and showing from whom said sums were collected. The law requires this statement to be sworn to.
If the tax commissioner or tax collector fails and refuses to make the payment, or if he makes a false return, or if he fails or refuses to file the list as required, either with the Treasurer or with the Comptroller General or with the county commissioners, it then becomes the duty of these officers to report the fact to the Governor and it is the duty of the Governor to require the tax commissioner to show cause why he should not be removed from office and if he fails to make a proper excuse within ten days, then it is the duty of the Governor to remove him from the office.
As requested by you, I am sending a copy of this letter to Hon.
J. G. Morris, Tax Commissioner of Clayton County.

TAXATION-Tax collector has no authority to accept county warrants in payment of taxes

April 1, 1933

Mrs. Kate Mulling

Route 4

Bartow, Georgia

Dear Mrs. Mulling:

Governor Talmadge has asked me to write you in reply to your

letter to him of recent date.

.

Under the law the tax collector has no authority to accept county

warrants in payment of taxes. He can accept jury scrip but he can~

not accept general county warrants. I do not know whether the

warrants you have are jury scrip or other county warrants. I judge,

however, from your reference to Dr. Abercrombie that the warrants

were probably issued for vital statistics registrations. If this is true

you could not pay them on your taxes because the law does not

authorize the tax receiver to receive them. If he did receive them

he would have to account for that much money in cash.

I am sorry. I cannot give you a more favorable answer to your

letter.

TAXATION-Constructions of Code sections relating to duties of tax collector with reference to tax defaulters
October 1, 1934 Hon. A. F. Westmoreland Tax Commissioner Elbert County Elberton, Georgia Dear Mr. 'Vestmoreland:
Referring to your conversation with this office by long distance telephone a few days ago in which you requested my opinion as to the proper construction of sections 1129, 1130 and 1131 of the Civil Code, (Sections 92-7201, 92-7202, 92-7203, Code of 1933) I beg to advise as follows:

110
Section 11~9 requires the tax collector to record in a book kept for the purpose, in alphabetical order and by militia districts, the names of all persons who have not paid their taxes, placing opposite the name of such person the amount he is due for such tax. The section provides that the book in which the record is made shall be furnished at the expense of the county and the record so required to be made shall be filed by the first of July of each year with the Ordinary or Board of County Commissioners, whichever has charge of the county affairs. Section 1130 provides that when any tax shall be collected after said record is made it shall be applied to the oldest tax demand against the person paying the same. Section 1131 provides that the tax collector shall receive for his services in making up this record $5.00 for every hundred names so recorded in the book.
The particular question upon which you desire information is as to whether this record should embrace the names of all persons who do not pay their taxes by the ~Oth day of December.
Under the law, as you know, taxes are due and payable prior to December ~Oth of each year but the taxpayer has until December ~Oth to make payment. If he fails to make payment by that date he then becomes a tax defaulter. I do not think Section 11~9 of the Code contemplates only those taxpayers against whom fi. fas. are issued. The section seems clearly to my mind to contemplate that the tax collector shall record the names of all persons who become defaulters by reason of failure to pay their taxes within the time required by law, to wit, by December 20th of the year in which the tax is due. The record thus made is a permanent record of such tax defaulters and should be retained by the tax collector in his office until filed with the proper county authorities; it should be filed with the proper county authorities at least by the first day of July of each year. The purpose of the law to make this a permanent record clearly appears from section 1130 of the Code which provides that any tax thereafter collected shall be applied to the oldest demand. In my opinion the statute contemplates that in addition to listing the name of the defaulter and the amount of his tax the record when filed with the county authorities shall also show any payments made after the date of the entry and before the record is filed.
In the recent case of Barber v. Robinson, decided April 11, 1934, 174 S. E. 345, the Supreme Court had up a question somewhat similar to the one you ask. 'While the court did not expressly hold that the record should embody the name of all persons who had not paid their taxes on December ~Oth that inference is clearly to be drawn from what was stated by the Supreme Court. In addition the court held that the tax collector was not entitled to the payment provided by section 1131 unless the record made up by him was actually filed with the proper county authorities.

111
ORDINARIEs-Fees for marriage licenses
February 22, 1933 Mrs. Bessie Paulk Vickers Ordinary Coffee County Douglas, Georgia Dear :Mrs. Vickers:
Replying to your letter of February 20 relative to the legal price to charge for marriage license, including the whole service, including license, seal, recording fee, etc., I beg to advise as follows:
Code Section 4827(1) of Michie's Code of 1926 (Sec. 24-1716, Code of 1933) provides as follows:
"The Ordinaries in the several counties of this State having a population of not more than 40,000 according to the census for 1910, shall be entitled to the following fees, to wit: . . . . . . . . For every marriage license, whole service______ $2.25 . . . . . . . . For every service required and performed where no fees are specified, the same fees as are allowed the clerks of the superior courts for similar services, for a like amount of labor, shall be allowed."
Code Section 5995 of Michie's Code of 1926 (Sec. 24-2727, Code of 1933) provides as follows:
"The clerks of the superior courts of this State shall be entitled to charge and collect the following fees for official duties performed by them, to wit: . . . . For certificate and seal each $.50 .... ". Code Section 5995(2) of :Michie's Code of 1926 (Sec. 24--2727, Code of 1933) provides as follows: "The clerks of the superior courts of this State in counties whose population is less than fifty thousand shall be entitled to charge and collect for the performance by them of the official duties herein designated, the following fees, to wit: . . . . and for recording or copying any instrument of writing not herein specified, per hundred words twenty cents."

ORDINARY: Not authorized to appoint person to fill vacancy in office of Notary Public and ex officio Justice of the Peace

August SO, 1933

Hon. Edwin W. Dart

Ordinary, Glynn County

Brunswick, Georgia

Dear Judge Dart:

This will acknowledge receipt of yours of recent date relative to

Notary Public and ex officio Justice of the Peace vacancy in your

county.

I have looked into the sections of the Code in reference to this

\L matter and it is my opinion that, under the law, y~

have no authority to appoint a successor to the,4~~!~-~~~~

Public and ex officio Justice of the Peace, or to caJt ah election of any"Jo;.;

kind to fill this vacancy.

H!;'.'.;~.~,~:~.',.....:~.:"'"'[r~:._:,~

o..."-..~.~...G;;:;t,:.-;.;..;,:l.".l.G..\<!");.~

11~
Code Section 4649 (Sec. 24-501, Code of 1933) which provides for the appointment of these officers, is as follows:
"Commissioned notaries public, not to exceed one for each militia district, may be appointed by the judges of the superior courts in their respective counties, upon recommendation of the grand juries of the several counties. They shall be commissioned by the governor for the term of four years, and shall be ex-officio justices of the peace, and shall be removable on conviction of malpractice in office." Since the provision for the appointment of these officers is not mandatory, it is not necessary that each district have one, but the judge of the superior court may, if he sees fit, appoint one for each district. Therefore, I do not think the Ordinary has the right to appoint a person to fill this vacancy caused by the resignation of the Notary Public and ex officio Justice of the Peace. Of course you understand that I am not permitted by law to give official opinions to private individuals, and the above is merely my personal views on this matter.
REGISTRATION WITH ORDINARY-Veteran operating under disability certificate must register with Ordinary even if exempted from payment of tax
March 19, 1934 Mr. T. N. Holcombe Ordinary, Lowndes County Valdosta, Georgia Dear Mr. Holcombe:
Yours of the sixteenth instant requesting an opinion as to whether or not Civil Code Section 1888 (Sec. 84-2011, Code of 1933) exempts a disabled World War veteran from the requirement of registering with the Ordinary as provided in Section 993 (285) of the 1930 supplement of the Georgia Code, has been received.
Section 993 (285) of the 1930 Supplement provides: "Before any person shall be authorized to open up or carry on said business (referring to the businesses upon which an occupation or license tax is imposed by the General Tax Act) they shall go before the Ordinary of the County in which they propose to do business and register their names, the business they propose to engage in, the place where it is to be conducted," etc. Also further in this section it is provided: "Any person failing to register with the Ordinary or, having registered, failing to pay the special tax as herein required, shall be guilty of a misdemeanor." It is my opinion that no one is exempt from the provisions requiring registration of the business or occupation to be carried on. Not only does the statute make it a misdemeanor to fail to pay the tax but it is also made a misdemeanor to fail to register with the

118
Ordinary before opening up or carrying on said business. Of course, a disabled veteran who is entitled to the exemption as provided for under Civil Code Section 1888, after registering, would not have to pay the tax, except as to certain taxes or fees imposed in the General Tax Act from which no person is exempt, such as professional fees or taxes, and regulatory fees exacted under the General Tax Act.
I find that the particular question asked in your letter has never been decided by our appellate courts. Section 6 of the General Tax Act of 1927, which said section is involved in your question, was discussed in other connections in the cases of Brooks v. Harrison, 171 Ga. 491, and Riggs v. State, 41 App. 306.
COUNTIE8-Where county officer is re-elected and fails to qualify by giving bond, office becomes vacant
April 28, 1933
Hon. T. H. Mahone, Ordinary Talbot County Talbotton, Georgia
1\fy dear Judge: Governor Talmadge has referred to me your letter to him of April
17th, 1933, in which you state that Hon. J. H. Ferguson, who was reelected Sheriff of Talbot County in November, 1932, for a term of four years beginning January 1, 1933, has not filed bond and has not taken the oath of office for the new term as required by law.
Under the provisions of Section 292 of the Civil Code of 1910 (Sec. 89-405, Code of 1933) the bond of the sheriff must be approved by the Ordinary and filed in his office and by him recorded. It is provided by Section 285 of the Civil Code that
"All county officers shall have until the first day of January, next after the election to file their several bonds as required by law." Section 286 of the Civil Code (Sec. 89-409, Code of 1933) provides as follows: "When any officer of whom bond is required fails to make and file the same as prescribed in the preceding section, it is the duty of the court, or officer in whose office it is required to be filed, at once to certify such failure to the appointing power, and to the power whose duty it may be to order an election." Under the provisions of Section 4796 of the Civil Code (Sec. 23-701, Code of 1933), the Ordinary has jurisdiction to order elections to fill all vacancies in county offices. The Ordinary of Talbot County was not deprived of this jurisdiction by the Act of 1876, creating a board of commissioners for Talbot County. Vacancies in the office of Sheriff are filled in the same manner as vacancies in the office of the Clerk of the Superior Court are filled. Civil Code of 1910, Section 4904 (Sec. 24-2803, Code of 1933). Section 4881 of the Civil Code of 1910 (Sec. 2704, Code of 1933) provides the method of calling an election to fill a vacancy in the office of Clerk of the Superior Court.

114
It will thus be seen that in the event of a vacancy in the office of the Sheriff of Talbot County the Ordinary is the proper official to order an election to fill such vacancy.
Section 264 of the Civil Code (Sec. 89-501, Code of 1933) provides "That all offices in the State are vacated" in seven separate specific instances as therein set forth. One of these instances is set forth by Paragraph 6 of Section 264 as follows: "By failing to apply for and obtain commissions or certificates, or by failing to qualify or give bond, or both, within the time prescribed by the laws and Constitution." In dealing with this question, the fact that Mr. Ferguson was reelected Sheriff, should, in my opinion be disregarded. The situation is exactly the same as if some other person had been elected for the term beginning January 1, 1933. Under the provisions of Section 261 of the Civil Code (Sec. 89-105, Code of 1933) the Sheriff whose term expired December 31, 1932, must discharge the duties of his office until his successor is commissioned and qualified. In so discharging the duties of the office, he does not act under any new commission or new election but acts under his old commission and his old election as an officer holding over. When his successor is elected and qualified, his right to hold over and to continue to discharge the duties of the office immediately terminate. It is my opinion that the failure of Mr. Ferguson to file a bond and take the oath of office for his new term which began January 1, 1933, creates a vacancy in the office of Sheriff of Talbot County for the term which began January 1, 1933. That this failure on his part imposes upon the Ordinary the duty provided for by Section 286 and the further duty provided by Section 289 of the Civil Code, to give notice of such failure to the solicitor general by and during the first two days of the session of the Superior Court of the County next after such failure. The purpose of the notice provided by the latter section, is, in my opinion, to enable the solicitor general to have necessary inquiry made to determine whether such officer failing to qualify has violated any provision of the criminal law by performing the duties of his office without having first qualified.
In my opinion, as Ordinary of Talbot County, it is your duty to take notice of the vacancy in the office of Sheriff resulting from the failure of the newly elected sheriff to qualify and to hold an election to fill such vacancy as authorized by the code sections cited above. Before doing this however, you would be authorized, in my opinion, to call to the attention of the sheriff his failure to qualify, and if he does then qualify I think you would be authorized to deliver his commission and execute the dedimus forwarded to you by the Governor. If he fails to then qualify, in my opinion, it is your duty to declare the vacancy and by an order entered upon your minutes, reciting the fact of such failure to qualify and to then order an election to fill the vacancy. The sheriff elected at such election would then be entitled to the office upon his qualifying. In this connection I might call to your attention the provisions of Section 260 of the

115
Civil Code, (Sec. 89-104, Code of 1933), under which Mr. Ferguson would not be eligible for reelection as Sheriff at such special election.
In what has been said above I am not unmindful of the decision of the Supreme Court in the case of Pearson v. Lee, 173 Ga. 406. In my opinion, however, that case has no bearing upon the instant. question but on the contrary the opinion of Judge Russell recognizes that a vacancy in a county office may exist in the event of the happening of one of the seven contingencies provided by Section ~64 of the Civil Code.
As further evidence of the legislative intent in the adoption of Section ~64 and the related sections, I call your attention to Sections 301 and 30~ of the Civil Code (Sec. 89-4~4, 89-4~5, Code of 1933) providing for a vacancy in a public office upon the failure of an officer to comply with a request by the Governor calling upon him to execute a new bond as authorized by Section 302.
In the case of Bosworth v. Walter, 46 Georgia, 636, these sections were considered in that case. A sheriff who was called upon by the Governor to execute a new bond failed to do so and a new election for sheriff was ordered. The court upheld the right of the sheriff elected at the new election and declared that he was entitled to the office.
ORDINARY-Disposition of pension funds
May 13, 1933
Judge Oswald R. Eve, Ordinary Richmond County Augusta, Georgia
Dear Judge Eve: Your letter of yesterday is acknowledged. Pension money delivered to the Ordinaries is a part of the State
funds provided the Ordinary proceeds as set forth in Code Section 1510 of the Penal Code. (Sec. 78-226, Code of 1933).
When this money is received by the Ordinary he is required to deposit it in his local bank, provided the bank is willing to cash the checks of pensioners without charge. In the event the bank is not willing to do that then it would become the duty of the Ordinary to cash the check and pay the money to the pensioners taking receipts from them in duplicate.
My interpretation of this section is that the Ordinaries may proceed to deposit this money to his credit as Ordinary in the local bank if the bank is willing to handle the check without making charges therefor and that the check should be immediately issued and cashed in payment of the pension. Where this is done and provided the checks are presented for payment without delay, if in the meantime the bank should fail, the fund would become the property of the State.
As to the priority which such funds would receive in the distribution of the assets of an insolvent bank, is not a settled matter.

116
Our courts have held that pension money in the hands of a pensioner deposited in a bank was not entitled to priority. See case of
Mobley v. Jackson, 171 Ga. 434 reversing the Court of Appeals in
Mobley v. Jackson, 407 App. 761 I think that in the administration of such a fund the State's priority would be recognized by the courts but the fund would be administered according to the Banking Act as amended in 1927, which would probably give depositors a preference over the fund, unless it were deposited in such a way as to make it a trust fund and without definite and specific understanding that the checks were being immediately drawn and would be immediately presented for payment. In order to establish the priority, I think the fund would have to be deposited in a separate account in the name of the Ordinary and with the understanding that it was pension money to be paid out by checks to pensioners at once. Unless it is handled in this way there is some doubt as to the priority and rank which would be given the claim. I think the Ordinary would be required to be diligent and follow the letter of the section referred to or the loss might fall on him.
ORDINARIEs-Fees when acting in the absence of the judge of the superior court
September flO, 1933 Hon. John E. Lee, Ordinary Brantley County Nahunta, Georgia
Dear Mr. Lee:
Yours of the 5th instant has been duly received. Due to the press of urgent state affairs I have been unable to answer your letter at an earlier date.
Your question is, whether an Ordinary can make a charge, in the absence of the Judge of the Superior Court, for $3.00 filing and docketing; $1.00 for order of sale of land or other property; 75 for recording said order; 75 if a rule nisi is issued and 50 for a copy of same; also recording the 20 per hundred words.
We have read the decisions relative to the cost allowable in such instances where an ordinary acts in the absence of the judge of the superior court, including the decision of Johnston, Ordinary, v. Bradshaw, 21 Ga. App. 198, which seems to be the most recent expression of our courts on this question. It is true that the decision in this case seems to be rather indefinite but my interpretation of the same is that the Ordinary is entitled to all fees
"For every service required and performed, for which no fees are specified by law, the same fees as are allowed clerks of the superior courts for similar services, or for a like amount of labor." We direct your particular attention to the words "service required" in this part of Section 4827 of the Georgia Code of 1926

117

(Sec. ~4-1716, Code of 1988). Construing this language in con-

nection with Code Section 6068 of the Georgia Code of 1926 (Sec. 89-1~08, Code of 1988) with reference to the sale of perishable

property and obtaining an order for the sale of same from the Ordinary

in the absence of the judge of the superior court, I find in said case

the only requirement of the Ordinary is "to order a sale of the prop-

erty." Under the editor's note under Section 6068 above referred

to, under the topic designated "Ordinary", I find this language:

"The Ordinary is the only judical officer who is authorized to

issue an order in the absence of a judge of the superior court. See

Simmons v. Coolidge, 95 Ga. 50."

And further under this topic it is said:

"He (the Ordinary) is entitled to costs, under Section 4827, for

performing this duty."

The case of Johnston v. Bradshaw, fl1 Ga. App. 198, is cited as

authority for this statement.

.

I infer from these authorities cited that there is no duty incumbent

upon an Ordinary with reference to the filing and docketing of the

application for short order sale and the case of Johnston v. Brad-

shaw, above cited, holds that the Ordinary could not make a charge

for "receiving application for order to sell, $1.25." The court in

this case held that the last three items of costs claimed by the Ordi-

nary, viz: recording application for order to sell, 850 words at 15

per 100, 50; order allowing sale, 50; recording order 75; were

properly allowable as legitimate fees for the services rendered by the

Ordinary. The items "receiving application for order to sell, $1.25,"

and "filing and docketing, $2.00" were stricken. It is our opinion, due to this fact that there was no duty on the part of the Ordinary

to perform such services. In other words, in the language of Section

4827 above cited this was not a "service required" of the Ordinary

and consequently he is not entitled to

"The same fees as are allowed clerks of the superior court for

similar services, or for a like amount of labor."

In the case of Thomas v. Thomas, 61 Ga. 71, it is stated:

"When a public officer claims fees for his services, he should be

able to show clear authority of law in support of that claim to

entitle him to have it allowed."

Since the only authority of law which an Ordinary has with respect

to the sale of perishable property under Section 6068 is "to order a

sale of the property" he could not support a claim for any other

functions performed which are not involved in the carrying out of

this function.

In the case of Walker v. Sheftall, 78 Ga. 806, it is stated:

"Acts providing for costs and salaries are to be strictly construed,

and neither can be increased by construction and in any indirect

manner beyond the amount specified by law." Also in the case of Walker v. Sanford, 78 Ga. 165, it was said:

"We know of no right in the courts to establish costs and to pro-

vide for their payment. This power is legislative, and does not

belong to the courts."

118
In the case of William Keen v. J. W. Rousse, 44 Ga. 601, it is stated:
"He who takes an office, takes it with the obligations resting on it, to perform all its duties, as well as those for which fees are provided, as those having no pecuniary emolument attached to them." It is, therefore, my opinion that if any acts were performed by an Ordinary in connection with the sale of perishable property, the Ordinary acting in the absence of the judge of the superior court, which are not required of him, then he is not entitled to any pecuniary emolument for said services. As I construe the authorities the only charges allowable to the Ordinary are for his order allowing the sale, recording said order, and recording the application for said order.
BANKING-Rates of exchange not applicable to county checks issued in the exercise of its governmental function
November 27, 1933 Hon. Frank E. Gabrels Ordinary, Habersham County Clarkesville, Georgia Dear Mr. Gabrels:
Yours of the 23rd instant received. You state in your letter that "under the National Code of the Bankers they require them to charge one-eighth of one per cent exchange on all checks drawn on a bank different from where the deposit is made. Under all other national tax laws the county funds have been exempt, and I want to know if the county funds would be exempt under this National Bank Code." You state further that "the Tax Collector does his banking with the Cornelia Bank at Cornelia and the Habersham Bank at Clarkesville is the county Treasurer and in transferring the funds from one bank to the other such an exchange rate will cause the county to have to pay a good sum of exchange." The question asked involves the principle whether the Federal Government has the power to tax the Governmental agencies and instrumentalities of a State. The general principles of law with respect to the relative rights of the Federal Government to impose taxation upon state agencies, and the State Government to impose taxation on federal agencies, are found under the title "Taxation" in 61 Corpus Juris, page 381, Section 380 and are as follows: "Pursuant to principles above stated, the federal government cannot tax the agencies or instrumentalities of a State. The implied immunity from taxation of public property of states and municipalities generally extends to taxes imposed by a state upon its own governmental agencies and instrumentalities or those of its municipal corporations, and to taxes imposed by a municipality upon the agencies or instrumentalities of a State."

119
See Collector v. Day, 11 Wall. (U. S.) 113; United States v. B. & 0. Ry. Co., 17 Wall (U.S.) 322; Palgret v. Farmers Land & Trust Co. 157 U. S. 429; Ambrosine v. United States, 187 U. S. I.
In the Ambrosine case above cited the question arose whether the Federal Government could require a revenue stamp to be placed upon a liquor license and bond issued to a party by the State, the revenue stamp being a measure to raise funds for the Federal Government. It was held in that case:
"To tax the license would be to impair the efficiency of State and municipal action on the subject and assumes the power to suppress such action. And considering license and bond together, taxation of the bond involves the same consequences. And thus the bonds were not mere incidents of the regulation of the traffic, but essential safeguards against evils, and governmental instrumentality of state and of city, as authorized by the State, to insure the public welfare in the conduct of the business, although the public itself was not governmental . . . . The general principle is that, as the means and instrumentality employed by the general government to carry into operation the powers granted to it, are exempt from taxation from the State, so are those of the states exempt from taxation from the general government. It rests on the law of self-preservation, for any government whose means employed i.n conducting its strictly governmental operations are subject to the control of another and distinct government exists only at the mercy of the latter."
The tax under the National Code of Bankers would necessarily have to be borne by the county. The checks issued by the county of an instrumentality of the government of the city and the principles of law above stated apply as much to a county as they do to a State.
Therefore, it is my opinion that the county is exempt from the payment of the exchange on all county checks which are issued by it in the exercise of its governmental functions.
ORDINARIEs----Duties in connection with registration of occupations and businesses subject to special taxation, legal fee for . pistol license and location of docket book
February 3, 1934 Hon. Bessie Paulk Vickers Ordinary, Coffee County Douglas, Georgia
Dear Judge Vickers: Yours of the 1st instant requesting an opinion relative to your
duties as Ordinary concerning registration of occupations and businesses which are subject to special taxes and requesting an opinion as to the legal fee for pistol license and whether a docket book for annual returns should be kept in the office of Ordinary, has been received.

1~0
In answer to your first question relative to registration of businesses and occupations, I refer you to Section 993 (285) of the 1931 Supplement to Michie's Code, which provides:
"The tax provided for in this law (referring to the General Tax Act of 1927 as amended by the Act of 1929) shall be paid in full for the fiscal year for which they are levied and annually thereafter, and, except where otherwise provided, said taxes shall be paid to the Tax Collectors of the county where such vocations are carried on, at the time of commencing to do business. Before any person shall be authorized to open up or carry on said business they shall go before the Ordinary of the county in which they propose to do business and register their names, the business they propose to engage in, the place where it is to be conducted; and they shall then proceed to pay the tax to the collector at or before time of commencing to do business as hereinbefore provided; and it shall be the duty of the said Ordinary to acquaint the tax collector of such registration, and at the end of each quarter to furnish the comptroller general with a report of such special tax registration in his office." Under Section 469(a) of the Penal Code, it is made a misdemeanor to fail to register as provided in the above stated Acts. The duty to register is placed upon the particular business or occupation involved and a failure to comply with this law subjects the occupation or business, or person concerned, to the penalties as imposed in Section 469 (a). In answer to your second question, as to the legal fee for issuing a pistol license, I refer you to Section 348 (3) of the Penal Code (Sec. ~6-5102, Code of 1933), where the Ordinary is allowed a fee of fifty cents (50) for granting said license. In answer to your third question, relative to the keeping of a docket book for annual returns, I refer you to Section 4818 of Michie's Code of 1926 (Section 24-2112, Code of 1933), which provides: "He (The Ordinary) shall also keep a docket of all the executors, administrators, guardians and trustees who are liable to make returns in his court, with legal entries of their returns, and of all such as have failed to make returns as required by law and the order of the court." Also Section 3996 of the Code (Sec. 113-1413, Code of 1933) provides: ''To insure annual returns from each administrator, it shall be the duty of the Ordinary to keep a docket of all such as are liable to make returns."

121
SHERIFF-Vacancy in office filled by appointment by proper authority until election
July ~4, 1933
Hon. John E. Lee Ordinary Brantley County Nahunta, Georgia
Dear Judge Lee: This letter is in reply to yours of July 19th requesting informa-
tion as to whether or not it is the duty of the Ordinary or the Board of Commissioners to appoint one to fill a vacancy in the office of sheriff.
In the event a controversy should arise between the Ordinary and the Board of Commissioners as to this appointment the matter is one which would necessarily have to be determined by the courts and is one which would require a construction of the statute creating the Board of Commissioners of Brantley County. Therefore, any opinion which I might render would not be binding. Under the law I cannot give you an official opinion on such matters.
As a matter of information to you I gladly refer you to the sections of the Code and to the Acts of the Legislature creating the Board of Commissioners of your county, and by reading these sections and this act I do not think you will have much trouble in determining the question before you.
Code Section 4904 (Sec. ~4-~803, Code of 1933) provides that vacancies in the office of the sheriff shall be filled in the same manner as vacancies in the office of Clerk of the Superior Court except where there is a failure to appoint as set forth in Code Section 4884. (Sec. ~4-~707, Code of 1933). The coroner of the county shall, in that event, act as sheriff and if there is no coroner the Ordinary may make a temporary appointment. In the event there is no temporary appointment the sheriff of an adjoining county may act.
Under Section 4881 (Sec. ~4-~704, Code of 1933) it is provided that vacancies in the office of Clerk of the Superior Court shall be filled by an election, twenty days notice of which must be given by the Ordinary. By Section 4884 it is provided that as soon as a vacancy occurs the Ordinary must appoint someone to discharge the duties of the Clerk until the vacancy is filled by election.
The general authority of the Ordinary's jurisdiction over county affairs will be found in Section 4796 (Sec. ~3-701, Code of 1933). Special attention is called to sub-section 5 of this section which is as follows:
"In supplying, by appointment, all vacancies in county offices, and in ordering elections to fill them." The constitutional powers of the Ordinary are contained in Section 65~1. (Sec. ~-340~, Code of 1933), which confers upon the Courts of Ordinary such powers with respect to the matters therein mentioned, including county officers. The above constitutes the general law of the State conferring authority upon the Ordinaries of the counties with respect to vacan-

cies generally and especially with reference to vacancies in the office of Sheriff.
The Constitution also contains a provision which gives to the General Assembly the power to provide for the creation of County Commissioners and to define their duties. See Sections 6548 and 6600. (Sec. fl-4601, Sec. fl-8401, Code of 1933). These two sections do not require the passage of a general uniform law defining the duties of the County Commissioners and it has been held that there is no limit to this power. See Decatur County v. Roberts, 159 Ga. 5fl8, 531. Of course, this power is necessarily limited by other provisions of the Constitution which must not be violated as was held in the case of Board of Commissioners v. Americus, 141 Ga. 54~, 545.
Acting under the constitutional power conferred upon them, the General Assembly in 19~7 created the office of Commissioners of Roads and Revenues of Brantley County and conferred upon that board the powers as enumerated in Section 12. (See Acts 19~7. pp. 500-504).
Among the powers conferred upon the Board by the section referred to will be found the following:
"Also to do all and singular other acts devolving upon the office of Commissioners having full and complete charge of county affairs, and to exercise all power over roads and revenues under the laws of this State, as given Ordinaries in counties where there are no Commissioners.'' It is necessary to construe the intent of the Legislature in determining just what meaning is to be given the above quoted provision. In those counties which have Boards of Commissioners and where said Board has been given authority by the Act creating it to perform all acts devolving upon the office of Commissioners having full and complete charge of county affairs, it is the rule, in so far as my observation goes, that such Commissioners usually fill vacancies by appointment under their general authority. Of course, if an appointment is made to fill the office vacated as provided by Section 4884, such appointment would be for such time as an election could be called and held. By specific provision of Section 4904 the coroner may act as sheriff until the election is held and in that event it would be the duty of the proper authority to act without delay in calling the election.
SHERIFFS AND JUSTICES OF PEACE-Fees for nulla bona entries and duties of Justice of Peace in prosecutions in his court
September 21, 1934 Hon. Rob. C. Wiley, Sheriff Hancock County Sparta, Georgia Dear Mr. Wiley:
I have yours of September 16th asking the following questions: 1. Is a sheriff entitled to costs of $1.00 for a Nulla Bona entry on fi. fa., issued by the Tax collector for poll tax?

128
Yes. See Civil Code Section 5997. (Sec. iM--2823, Code of 1933).
2. Can a Justice Peace Warrant be withdrawn by the prosecutor and the costs be paid up by the prosecutor, before the J. P. enters into the trial of the issue, without violating the law?
This depends upon the nature of the offense for which the warrant was issued. Penal Code Section 329 (Sec. 26-4604, Code of 1933), provides:
"If any person, informing or prosecuting under pretense of any penal law, shall compound with the offender, or direct the suit or information to be discontinued unless it be by leave of the court where the same is pending, he shall be guilty of a misdemeanor." See also Penal Code Section 328 and 981 (Sec. 26-4603, 27-1701, Code of 1988). 3. If a sheriff has a Justice Peace Warrant to serve and has to leave the county to serve same would he be entitled to mileage and his per diem, and should the county be the one to pay the sheriff? Penal Code Section 1184 (Sec. 24-2828, Code of 1983) provides: "The sheriffs are entitled to the following fees, to wit: For removing a prisoner by order of any court, and for bringing back fugitives from justice to the county where the crime was committed, to be paid out of the county treasury upon approval of the County Commissioners or Ordinary, per day . . . . $2.00. For personal service rendered out of the county on official business authorized by the county authorities per day and actual necessary expenses $3.50." Under this section, a sheriff executing a justice of the peace warrant out of the county would be entitled to these fees, provided they were authorized by the County Authorities. See also Civil Code Section 5997. (Sec. 24-2823, Code of 1988). 4. When a prisoner is arrested and when he appears before the J. P. for a hearing and is bound over to the Grand Jury, and he makes bond without having to be committed to jail, should he be put on the jail record, and would the sheriff be entitled to turn keys and one days board? No. Section 1134 (Sec. 24-2823, Code of 1983) of the Penal Code, among other things, provides: "Sheriffs, being ex officio jailers, shall receive the following fees for official duties performed by them, to wit: For turning key on receiving, discharging, or conducting a prisoner before any court, sixty cents. For dieting a prisoner confined in jail on any ground whatever, such fees as may be fixed by the Ordinary or commissioners of the county, who are invested by law with power to fix said fees."
It is my opinion that a sheriff is entitled to fees only for the':iacts actually performed by him, for which the law prescribes a fee. Therefore, if a sheriff makes an arrest and does not actually turn the key on a prisoner, or does not actually diet the prisoner, he would not be entitled to a turn key fee or to the fee fixed by the County Authorities for dieting a prisoner.

124
SHERIFF-Fees where sheriff goes out of county to bring back escaped prisoner
October 5, 1984 Hon. R. L. Bagley Ordinary and Commissioner of Roads and Revenues, Forsyth County Cumming, Georgia Dear Mr. Bagley:
I have yours of the fourth instant requesting an opmwn as to whether the county is responsible for the costs incurred by a sheriff where a prisoner escapes and flees to another State and the sheriff goes out of the county after the escaped prisoner and returns him to the county jail.
Your question involves a construction of Section 1134 (Sec. 24-2823, Code of 1933) of the Penal Code which provides for compensation to the sheriff for removing a prisoner from any county and for bringing fugitives from justice to the county where the crime was committed, to be paid out of the county treasury upon the approval of the County Commissioners or Ordinary. By the amendment to this code section, adopted in 1918, provision was made for compensation to the sheriff
"for personal services rendered out of the county on official business authorized by the County Authorities, per day .... $3.50." It is my opinion that the provisions of the Act of 1918 do not take the place of the provisions of the Code section compensating the sheriff for bringing a fugitive back to the county. In such case, the sheriff is to be governed in incurring the expenses by the facts and circumstances of the case, since it is his duty to arrest offenders against the State law, when he has a warrant for that purpose, wherever they may be found, and to return them to the county for trial. I think he is authorized to perform this duty and to charge the county the per diem fixed by law, with or without the consent of the county authorities obtained in advance. In all other cases, however, in which he acts out of the county on official business, the trip must be authorized in advance by the County Authorities.
SHERIFFs-Fees for summoning a jury for city courts
December IS, 1934 Mr. C. E. Mathis Avery, Georgia Dear Mr. Mathis:
I have yours of the lOth instant requesting an opinion as to the proper amount to be paid a sheriff for "Summoning a jury at or during any term of the city or superior court," and asking the question whether, when a sheriff serves summons on five panels of jurors or sixty men he is entitled to a fee $10.00 or $60.00.
I think that this question was answered by the Supreme Court in the case of Baggett v. Barrow, 166, Ga., p. 700, by Chief Justice

125
Russell. As you know, Civil Code Section 5997 (Sec. 24-2823, Code of 1933) provides:
"For summoning a jury at or during any term of the city or superior court, each jury .... $10.00." In construing this language in the Baggett case above cited, Judge Russell said: "We are well aware that there is a sense in which a trial jury must be construed to mean a body composed of exactly twelve men, good and true. However, the meaning which has been uniformly attributed to the word 'jury' in connection with the compensation allowed for summoning juries has no significance. Under the provisions of the Code the judge of the superior court ordinarily draws a jury from the box and in such case, as prescribed in our Code, the number twelve has no connection with the number drawn. He is empowered to draw from the grand jury box the names of thirty men. This is the grand jury for the summoning of which a fee of $10.00 is prescribed." The effect of this decision was to hold that the term "each jury" as used in the Act of 1918, p. 226, prescribing the fee of $10.00 for summoning each jury, means each grand jury and each petit jury drawn under the provisions of Sections 823, 826, 866, 877, and 875 of the Penal Code. (Sees. 59-2m3, 59-205, 59-204, 59-710, 59-123, and 59-713, Code of 1933). Therefore, it is my opinion that if the sheriff serves summons on sixty men drawn by the judge to serve as petit jurors for a particular term of court, he is entitled to only $10.00 for such service, and not to $10.00 for each twelve men or panel so served. If a grand jury is drawn to serve at the same term, the sheriff would be entitled to a fee of $10.00 for summoning the entire number of grand jurors irrespective of whether eighteen or thirty were summoned.
EDUCATION-County Board of Education not liable for injury sustained on school bus
September 19, 1933 Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
Your letter enclosing the letter of Mr. Milton Reed of Gaillard, Georgia, has been duly received.
Mr. Reed asks the question whether the Board of Education is liable for any injury sustained by school children while being transported to and from the County schools on a truck operated by a man employed by the school board. The answer is that the school board would not be liable for any damages sustained by a child under these conditions, due to the fact that there is no provision under the law for funds of this nature to be paid out of the money derived from local taxation for the support and maintenance of the school system. Such liability would fall upon the truck driver, and it is my

126
suggestion that the local boards of trustees require the truck drivers to carry liability insurance as a matter of public policy to protect the children transported on the school buses. As we understand the law, the local board of trustees could not require that this be done legally, but they could refuse to grant any person a contract for the transportation of school children unless they complied with such a regulation as to the carrying of liability insurance.
The board would be overstepping its authority if they attempted to take out liability insurance to cover such an exigency. As a matter of fact, the insurance companies would probably refuse to issue a policy of this nature, as the Supreme Court has held that an insurance company insuring school buses was not liable to pay compensation.
Relative to the insurance carried by the board of education under the employer's liability act for truck drivers and teachers, I am doubtful that this should be done by said board. However, by an Act of the Legislature, 1933, (See Georgia Laws, 1933, p. 184), an insurance company which insures a risk of this nature accepting the premium and delivering the policy is estopped to deny their liability under the same, upon the ground that such an employer is not subject to the act.
As stated above, there is no duty on the part of the County Board of Education to carry liability insurance on behalf of the children; there is no provision for the payment of said insurance out of the public school funds and, consequently, there is no liability on the part of the board in the event of an injury sustained by a child while riding on the bus. The operator of the bus might be liable if he is negligent and for this reason we have suggested that he be required to carry liability insurance protecting the children.
We are herewith returning the letter of Mr. Reed.
EDUCATION-Age at which child may enter public school
October 31, 1934
Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
I have yours of the 80th instant requesting an opm1on as to whether or not the county board of education or the district trustees have authority to refuse to admit to the current term of a school a child who becomes six years of age during the term.
In answer to this question, I refer you to Sections 37-810, 37-8~0 and 37-1187 of the School Code. From these sections, it is apparent that a child is considered of school age between the ages of six and eighteen years. This is the age limit upon which the enumeration of school children is made under the provisions of the School Code as contained in Section 87-820; the basis upon which school funds are distributed by the State School Superintendent under Section 37-810

1!!7
and between these age limits all children shall be received in the common schools of the State without the payment of tuition.
I think that the age of a child in determining whether such child should be allowed to attend a common school should be considered as of the time of his nearest birthday. That is, if a child is more than five and one-half years old at the time of the opening of a school, such child should be allowed to attend the common school. I think the county board of education could exclude a child from a common school, who, counting from the child's last birthday, is nearer five years of age than six.
EDUCATION-Authority of county boards of education to compel children to be vaccinated for smallpox
October 2, 1984
Ron. 1\:L D. Collins State School Superintendent
Dear Mr. Collins: I have your letter of September ~8th requesting my opinion as to
whether or not the county boards of education have authority to forbid the public schools to children whose parents will not permit the children to be vaccinated against smallpox, and if so, my opinion as to the duties of the attendance officers with reference to these children.
Section 1551 (93) of Michie's Code of 19~6 provides as follows: "The County Board of Education in the counties of this State, and the Boards of Public Education for the (city of Savannah and the other) cities of this State, are hereby authorized and empowered to make such regulations as in their judgment shall seem requisite to insure the vaccination of the pupils in their respective schools and may require all scholars or pupils to be vaccinated as a prerequisite to admission to their respective schools." It is my opinion that under this section the County Board of Education is authorized to require all children to be vaccinated as a condition precedent to their entering the public schools. In the case parents shall refuse to permit a child to be vaccinated when vaccination is required by the County Board of Education, in my opinion such a parent would be voluntarily keeping his child out of school within the meaning of the compulsory education law and the attendance officers would be authorized to proceed under the provisions of Section 1551 (193) of Michie's Code of 1926, as if the failure to send the child to school was due entirely to the voluntary act of the parents. I might also call your attention to Section 1650 of the Civil Code of 1910 which permits county and municipal officers to enact such rules and regulations as may be necessary to compel vaccination in the event the health officers or the proper authorities deem it necessary for the purpose of preventing the spread 'of smallpox or any

us
other contagious or infectious diseases. The County Authorities referred to, however, are not the County Boards of Education but the County Commissioners or Ordinary as the case may be.
EDUCATION-Number of trustees in each school district
March 4, 1934
Hon. M.D. Collins State School Superintendent
Dear 1\fr. Collins: I have your letter of February 2~nd enclosing a communication
from Honorable J. Scott Davis of Rome. There was an Act passed in 1933 which purported to increase the
number of trustees in each school district to five. The Act will be found on page 55 of Georgia Laws of 1933.
I seriously doubt if this Act is at all enforceable. I enclose copy of a letter written on October 20th, and I think the Board of Education would be justified in disregarding the Act.
The Code Commission, I am informed, has concluded that it is too vague and indefinite to be enforced and is leaving it out of the Code. The action of the Code Commission is not yet final, however.
With reference to the election of trustees, I beg to advise that if Floyd County, by action of its grand jury, has adopted the Australian Ballot Law, it does apply to elections for school trustees.
Section 76 of the Civil Code (Section 34-1201, Code of 1933) provides who may superintend elections. This section provides that there must be three superintendents and one must be a justice of the peace, except in the event no justice of the peace is available.
Section 126 of the Civil Code (Section 34-3101, Code of 1938) provides that no election shall be defeated for non-compliance with the requirements of the law, if held at the proper time and place by persons qualified to hold it, if it is not shown that by that noncompliance the result is different from what it would have been had there been proper compliance.
Brumby v. Marietta, 42 Ga. 408; Houser v. Hartwell, 157 Ga. 187; King v. Board of Education, 42 Ga. App. 563, 577.
The word "qualify" relates to the eligibility of managers to serve and not to qualify in the sense of taking an oath. Jossey v. Speer, 107 Ga. 828.
While under Section 76 of the Code (Section 34-1201, Code of 1983) it is required that an election be superintended by three superintendents, one of which must be an ordinary or justice of the peace, it is my opinion that if the election is actually superintended by three free holders under Section 126 (Section 34-3101, Code of 1933) it would be a good election. I think, however, that the election must be held under the regulations of the Australian Ballot.

li9

EDUCATION-county school officials required to provide educational facilities for children in Orphans' Home in county

May 19,1984

Hon. M. D. Collins

State School Superintendent

Dear Dr. Collins:

I have yours of the 16th instant requesting an opmwn as to

whether or not it is the responsibility of the county school officials to

provide educational facilities for the children in an orphans' home

located within the county.

In considering this question, it is noted that the domicile of a

minor, where the father and mother are dead, is that of his master,

if an apprentice, or his employer; or that of his guardian. I think

that the relation of a child in an orphans' home is that of guardian

and ward. Consequently the domicile of a child in an orphans'

home would be the county in which said home is located. See Civil

Code 2188 (Sec. 79-408, Code of 1938).

The School Code provides for an enumeration of children between

the ages of six and eighteen in the various counties of the State

(Section 87-819, School Code). Upon the basis of this enumeration

the disbursement of school funds to the various counties is made.

This disbursement is made upon the basis of the aggregate of school

children between six and eighteen years of age, inclusive, in each

county, and the schools in the county receive revenue from the

State in accordance with the number of children of school age resid-

ing in the county (Sec. 37-810, School Code). Under Section 87-~201 of the School Code, it is made the duty of

each parent, guardian or other person having charge and control of a

child between the ages of eight and fourteen, to cause said child to be

enrolled and to attend continuously for six months of each year, a

public school of the district or city or town in which the child resides.

After a consideration of these provisions of law, I am forced to the

conclusion that it is the responsibility of the county school offi,cials

to provide educational facilities for the children in an orphans' home

located within the county.



EDUCATION-Designation of depository for county school funds
April 14, 1988
Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
In reply to your letter of April 18th, in which you request an opinion as to the proper authorities whose duties it is to designate the depository of county school funds, I wish to advise as follows:
Under Senate Bill No. 128, enacted at the recent session of the Legislature in 1988, will be found the following provision:

ISO
In Section ~. the words "county authority" are defined to be the ordinary or the board of county commissioners, or other tribunal, body or officer having jurisdiction over the official affairs of the county.
Under Section 6 of said Bill, it is provided: "The county authorities shall designate one or more solvent bank or banks as depository of all county moneys and moneys belonging to the school funds of the county, and of school districts therein, and of other districts therein organized for any purpose; and if the county authorities shall not have provided for such a depository, the county board of education or the trustees of any school district, or the proper authorities having supervision over any other public fund, may designate such a depository as to their funds." Therefore, under the provisions of the above Act it is my opinion that it is the duty of the county authorities, meaning the ordinary or the board of county commissioners, or other tribunal, body or officer having jurisdiction over the official affairs of the county, to designate the depository of the county school funds. Only in the event of the failure of such county authorities to designate the depository would it be the duty of the county board of education or the trustees to do so. Where the county authorities do not designate the depository as provided in Section 6, then this duty devolves upon the county board of education or the trustees of the local school district, and in that event they should proceed to designate such a depository as to their funds.
EDUCATION-Funds for current year must be applied to current expenses; any excess may be used for back obligations
April 10, 1934
Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
Yours of the sixth instant requesting an opinion upon the question as to whether it is legal for a school board to take the funds for one calendar year and pay debts which were contracted for during the previous calendar year has been received.
This question involves the construction of Section 10~ of the Act of 1919 (Georgia Laws 1919, p. 3~9) which provides:
"It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year. Any indebtedness created, contracts made, or draft issued in violation thereof shall be void." In the construction of this statute, the Justices of our Supreme Court seem to be of diverse opinion. In the case of Board v. Therman, 162 Ga. 58, it was held: ''The Board of Education of Monroe County having lawfully

181

incurred debts for money loaned to pay teachers and operate the

public schools of the county, and such debts have accumulated

from year to year until the fall of 1924, it was in the power of the

board to repay such debts from any funds that could lawfully be

applied to such purposes, including funds derived from the levy

of a local tax in the fall of 1924 for operating the schools."



It was further held in this case that the Board of Education did not

abuse its discretion in closing the term which had commenced in

September, 1924, and in applying the funds derived from local

taxes levied in the fall of 1924 to paynient of the debts accumulated

during previous years for borrowed money to pay teachers and operate the schools. This opinion was written by Mr. Justice At-

kinson, and Mr. Chief Justice Russell and Mr. Justice Hines dis-

senting, Mr. Justice Beck being disqualified.

The question asked was more specifically raised and authorita-

tively dealt with in the recent case of Hicks v. Grove, 177 Ga. 574,

wherein it was held:

"Section 102 of the Code of School Laws provides: (quoting the

statute). Any attempt by a county board of education which

seeks to create a liability against the county board of education is

void, unless Sections 96, 97, 98, 99 and 100 of the Code of School

Laws are complied with."

Here the court was answering the specific question:

"Are funds appropriated by the General Assembly for the pur-

pose of common schools, and allocated to the several counties in

accordance with the law to maintain the schools of the State for

a specific year, subject to be applied to the claims or demands

which are here presented?"

(The demands in this case were county warrants issued in previous

years for the maintenance and operation of the schools.) The

court held that the money derived from the State for school pur-

poses and that derived from countywide taxes constitute the common

school fund and neither class of funds stands upon the same footing.

It is, therefore, my opinion that funds derived from taxes for

school purposes for the current year must be applied to the current

expenses of the year and cannot be applied to the payment of the

past indebtednesses of the county board of education, unless all

current expenses for the year have been paid, and a surplus, which

b.ecomes a part of the general funds of the board, remains. Collec-

tions of past due taxes which were levied to pay operating expenses

of the schools may be applied to the payment of past due indebted-

nesses created for operating the schools during the year in which ~e tax from which the revenue is derived was levied. For example, If ~ taxpayer in 1934 makes payment of school taxes which were

levied for the year 1928 for the operation or maintenance of the

schools for the year 1928, such funds may be applied to the pay-

ment of any indebtednesses which were lawfully created for the

year 1928 in operating or maintaining the schools. Such taxes must

ha!"e been legally levied for school purposes, and if warrants or

scrip were issued in anticipation of the 1928 revenues, such war-

1S!t
rants or scrip must have been legally issued in accordance with the restrictions of Section 102 of the Act of 1919 and Sections 96, 97, 98, 99 and 100 of said Act complied with. See Baggarly v. Bainbridge State Bank, 160 Ga. 556.
In order for funds derived from school taxes levied for past years, which are collected during the present year, to be applied to the payment of past due indebtednesses of the board, the said funds, when collected, must not be mingled with the other funds of the board but must be kept separate and applied only to the debts legally created by the board during the year and for the purpose for which they were levied.
EDUCATION-Duty of County Superintendent of Schools where no depository designated
July 12, 1988 Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
This letter is in reply to yours of June 24th, in which you ask the following questions:
"In case the county authorities do not designate a depository for public funds, and if a bank refuses to put up securities to protect deposits of public funds, what is the duty of the county superintendent of schools and local school district treasurers after receiving school funds? Are the superintendents or treasurers responsible for loss occasioned by bank failure?" By the provisions of the Bill passed at the 1988 Session of the General Assembly regulating liability and amounts of official bonds, it is made the duty of every officer who holds public money belonging to any public body coming into his hands, to promptly deposit the same in a bank or depository as provided in Section 6 of said Act. I quote you a part of the pertinent provisions of said Section, as follows: "It shall be the duty of each and every collecting officer and each and every officer to hold public money, upon any money belonging to any public body coming into his hands, promptly to deposit the same in a bank or depository as hereinafter stated . . . . . "The .county authorities shall designate one or more solvent bank or banks as depositories of all county moneys and moneys belonging to the school funds of the county and of school districts therein, and of other districts therein organized for any purpose; and if the county authorities shall not have provided for such a depository, the county board of education or the trustees of any school district or the proper authorities havin[! supervision over any other public fund may desi~ nate such a depository as to their funds; and if there be no applicable depository selected, the officer collectin~ or holdinf! any public funds may select a depository."

133

From the above you will observe that it is the duty of the County

Board of Education, or of the trustees of any school district, to designate depositories for the school funds in the hands of the County
School Superintendent or the Treasurer of the local district, as the case may be.
If the county authorities do not designate a depository for the public funds of the county, then the County Board of Education should act and so designate such depository. If they fail to act, the

local Boards of Trustees should designate the depositories for the school funds of their district. If none of these authorities act and designate the depositories, then the officer holding such public fund
may select his own depository. By the further provisions of Section 6, it is the duty of the authori-
ties so designating such depository to require it to give bond or
make deposit of securities to secure such deposits as may be made in it. Any bank in this State is authorized to give such bond to secure deposits of public funds by depositing securities, and the school authorities, either the County Board of Education or the local Board of Trustees, are authorized to make contracts with depositories as to

interest to be paid on such deposit.

By the further provisions of Section 6, any deposit of public

funds made in any bank, whether designated as a depository or

not, is secured by a lien on all the assets of said bank, superior to all

other liens, for the amount of such funds.

Therefore, it is necessary, in any event, that the officer holding

such fund should deposit it in the bank in his official capacity and

the account should be marked with words or abbreviations showing

his official title, so that the bank will certainly know that the money

thus deposited is public money.

.

In the event the county authorities do not designate a depository,

I think it would be the duty of the County Board of Education to

designate such a depository as would be willing to make the bond or

to deposit the securities as contemplated by Section 6. If one bank

would not do this, I think it would be authorized in designating

another bank which would make the bond or deposit the securities.

If no such depository is designated, and no such bond is required

by the county authorities, and the officer holding the fund selects

his own depository, then, in my opinion, it would be his duty to re-

quire the depository so selected by him, wherever the same may be,

to make to him some bond, or deposit with him securities to secure

the deposits so made by him in said bank. The law gives a lien on

all of the assets of the bank to secure such deposits, and there should

be no good and valid reason why such officer could not secure such a

bond or the deposit of such securities from the bank to secure his

deposit .

.I wish to call your attention to Section 7 of said Act, which proVIdes that neither the principal nor the surety shall be liable for the
failure of the officer to account for such public money as he shall h;ave deposited in a designated depository, or if the proper authori-
ties shall have failed to designate a depository, in any bank selected

134
by him, provided he deposits the money in the name of the public body to which it belongs, or in his own name in his official title, or where his official capacity is disclosed, providing said failure to account is attributable solely to the failure or insolvency of such depository.
Therefore, I think it is highly important: (1), that the county authorities designate a depository for the county funds; (2), upon their failure to do so, then it is important that the County Board of Education so designate such depository for the school funds; (3), that the County Board of Education should require such depository so designated to give the bond or deposit the securities; (4), that the officer holding the money should be required to deposit such money in such designated depository.
I do not think such officer should be left to select his own depository, for if and when he does so, and deposits the money thus held by him in his official capacity in such depository so selected by him and makes said deposit in his official capacity, then neither that officer nor his surety may be held liable for loss of funds due to the failure or insolvency of such depository. Certainly there would be considerable question as to his liability. Of course, I think such officer, where he is necessarily put to the necessity of selecting the depository because of the failure of the county authorities to do so, should require the depository so selected by him to make the bond to him or deposit securities with him. The Act is not very clear on this point, and in order to avoid a controversy as to the liability of such officer or the surety on his official bond, the county school authorities should be required to designate such a depository as is willing to make the required bond,.and to require all of the school funds to be deposited in such depository designated by them. Of course the County Board of Education will not necessarily have to designate such a depository where the county authorities had already designated a depository for all county funds.
I think this is a very important matter and one which should be put before the County Boards of Education of the respective counties where the county authorities have not designated a depository for the county funds.
EDUCATION-County Board of Education has no authority to deny a place in school to a pupil whose physical condition requires an attendant
November 29, 1933
Hon. M. D. Collins State Superintendent of Schools
Dear Mr. Collins: Yours of the 25th instant inclosing a copy of the letter of Mr. W.
M. Rainey, C. S. S., to Mr. Lex Young of Stone Mountain, Georgia, dated October lOth, has been received.

135
You request our opinion upon the following regulation passed by the DeKalb County Board of Education, known as Rule 29-B:
"Any pupil whose physical condition requires an attendant, will be denied a place in the schools." Article 8, Section 1, Paragraph 1, of the Constitution of our State provides as follows: "There shall be a thorough system of common schools for the education of the children, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races. Acts 1910, page 56." This same provision of law is found in Code Section 155l (8) as enacted by the Legislature in 1929, Georgia Laws 1929, pages 288, 290. It is my opinion that this constitutional provision means that the schools are not only to be free to all children of the State but must be accessible to all children of the State. Therefore, the regulation passed by the County Board seems to violate the constitutional provision as above quoted. Under Code Section 1551 (94) it is provided, among other things, that: "The County School Superintendent and County Board of Educacation shall make rules to govern the county schools of their respective counties." This law does not give the County Board a right to impose unreasonable or arbitrary rules or restrictions upon the rights of students residing in the district to a free access to said schools. It is possible that the County Board could prescribe a regulation requiring all children whose physical condition was of such a nature as to require an attendant, to have an attendant accompany them to school. However, I have grave doubts that the regulation in question is valid, and if tested in the courts it is my opinion that the denial of a child's right to attend a common school of this State under this regulation would be held to be in contravention of his constitutional rights.
EDUCATION-Extent of authority of State Board of Education in connection with certification of teachers
October 18, 1933 Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
Yours of the 16th instant requesting an opinion as to the extent of the legal authority of the State Board of Education to limit the use of County certificates and to prescribe the conditions of certification for all teachers in the State at the elementary and high school level, has been received.

136
You state in your letter that your present policy with respect to this matter is dual in its nature and that the County Board of Education issues County licenses based upon examination given by the County School Superintendent of Schools, and that the State Board of Education issues State certificates based upon credits from standard colleges or equivalent examination. As I interpret Section 37-1215 of the School Code, it is my opinion that the State Board of Education has full control over these matters, either directly or indirectly. It is provided in that Section that the County School Superintendent of Schools shall examine all applicants for license to teach in their respective Counties, and further on in this Section is stated that "the State School Superintendent shall prepare and supply the County Superintendent of Schools with printed instructions as to grading applicants by a uniform grade, and shall fix the lowest standard for each class of license."
In this Section it is also provided that the examinations given in the various Counties and the questions contained in said examinations are to be prepared and sent out by the State School Superintendent. As stated above, it occurs to me that this gives you and the State Board of Education sufficient power and discretion in this matter to establish any standard that you see fit, and to make any limitations upon the use of County certificates that you may deem reasonable.
EDUCATION-Disposition of Barrett-Rogers fund
April 8, 1988
Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
I have your letter of the 6th instant, in which you state that a total of 819 schools have qualified in Georgia and have been accepted by you as entitled to the benefit of the Barrett-Rogers fund; that other schools have since qualified; and you desire to know whether you should pay out the Barrett-Rogers fund at the rate of $500.00 for schools receiving grammar school aid, and at the rate of $1,000.00 for schools receiving high school aid, or whether the entire amount available should be prorated for the schools- which have qualified.
There is no provision of law for prorating the Barrett-Rogers fund and paying a school less than the amount stjpulated by the statute. The matter of recognizing and accepting schools applying for this aid, and of distributing the funds available, is entirely within the discretion of the State Superintendent of Schools. The only limitation upon his authority is that the schools must qualify within the meaning of the law, which you state has been done, and the limitation contained in the following provision of the Act:

137
"No county now receiving, or that may hereafter receive, aid for both the consolidated ($500.00) and the high-school ($1,000.00) aid shall be eligible to further apply for such aid until every county in the State has had an opportunity to apply. H those counties not receiving both aids fail to qualify, then the State Superintendent of Schools is authorized to extend further aid to those counties receiving either or both aids as provided in this bill, and on same conditions as set forth above." (Acts 19~7, p. 158.)

EDUCATION-Construction of Stanton School Book Act

Miss Virginia L. Heard

July 14, 1933

Secretary, Board of Public Education Savannah, Georgia

Dear Miss Heard:

This letter is in reply to yours of July ~nd inclosing copy of your letter to me under date of June ~1st, along with copy of an opinion written by Attorney General Napier on August~~. 1931, relative to
a construction of the Stanton School Book Act.
You ask the question as to whether or not the schools of Savannah

and Chatham County are affected by the Stanton Uniform Textbook Bill.

The provisions of the Stanton Text-book Bill on the question of uniformity in the use of text-books are (Section 18) as follows:

"No public school, board of education, board of trustees or independent or local school system of this State shall receive any part of the appropriation made to the common schools of this State by the General Assembly in any year unless such school, board, or system shall use the text-books adopted and provided

by the Text-Book Commission as provided for in this Act. Provided, however, that supplemental books may be used by any school or school system, the cost of such supplemental books to be

paid by the school system and the books loaned to the school children without charge. Provided, further, that the provisions of this Section shall not apply to nor be mandatory upon those systems of public schools in this State whose boards of education or boards of trustees now own and furnish free, or upon a rental basis, the text-books for their schools, until the text-books adopted and now in use by said systems shall be by them changed; any future adoptions and/or purchases of text-books, except supple-

mental texts as provided herein, shall be from the lists adopted by

the Text-book Commission and through the agency of distri-

bution created by them."



It will be noted from the provisions of the above section and from the exceptions therein contained that the Savannah and Chatham Board of Public Education is not specifically exempted from the pro-

visions of this Section. Therefore, it is necessary to look elsewhere in order to determine the question.

138
On March 21, 1866, the General Assembly of Georgia established a permanent Board of Education for the City of Savannah and invested in that Board the direction, management and superintendence of the public education of the white children in said city between the ages of six and eighteen. By that Act this Board was made a body politic and corporate and was given full power and authority to devise, establish and modify from time to time a plan and system of education for white children, etc. This Board was also given the power to make by-laws, rules and regulations for their own government and for the government of teachers and schools under their superintendence.
I am of the opinion that under the authority conferred upon the board in Sections 1 and ~ of this Act of the General Assembly approved March ~1, 1866, (Acts 1865-66, pp. 78-79), that the Board had power to select and designate textbooks for use in its schools.
The above Act was amended on December 18, 1866 (Acts 1866, pp. 175-176), and by that amendment the name of the Board of Education for the City of Savannah was changed to "The Board of Public Education for the City of Savannah and the County of Chatham." The provisions of this last Act conferred upon the Board therein provided for all of the powers, rights, privileges, and authority carried by the Act approved March ~1, 1866, as well as such powers which might thereafter be conferred upon it by any other Act of the Legislature and the powers were extended over the whole County of Chatham. By this Act the new Board was given the right to receive of the State and County additional funds to which the County of Chatham may be entitled. It was specifically provided by Section 3 of this Act that the Board would be created and was intended to be a substitute for the Board of Public Education established for the county by existing laws.
Section 4 of said Act is as follows: "That no general law upon the subject of public education, now in force, or hereafter to be enacted, shall be held, deemed or construed to interfere with, diminish or supersede the rights, powers and authority conferred upon the said Board of Public Education for the City of Savannah and the County of Chatham, by this Act, or the Act of which it is amendatory, unless it shall be so expressly enacted."
Both of the above Acts were passed under the Constitution then in force. The validity of these Acts of the Legislature will, of course, depend upon the provisions of the Constitution. Therefore, it is necessary to look to the Constitution of 1877 in order to determine if specific provision is made therein for the preservation of the rights conferred upon the Board of Public Education for the City of Savannah and the County of Chatham.
The Constitution of 1877 in Paragraph 1 of Section 1 of Article 8 (Code Section 6576; Sec. ~-6601, Code of 1933) provided that the system of common schools in the State of Georgia should be as nearly uniform as practicable.
The provisions of Paragraph 1 of Section 4 of Article 8 of the Con-

189
stitution (Code Section 6579; Sec. 2-6901, Code of 1933) form an exception to the uniformity clause of the Constitution above referred to. Thi~ section deals with the subject of local taxation for public schools, (Hanks v. D'Arcey, 156 Ga. 55, 58), and forms a necessary exception to the uniform system of public schools otherwise required by Section 6576 (Barber v. Alexander, 1~0 Ga. 80.)
Paragraph 1 of Section 5 of Article 8 of the Constitution (Code Section 6580; Sec. ~-7001, Code of 1933) provides as follows:
"Existing local school systems shall not be affected by this Constitution. Nothing contained in the first section of this Article shall be construed to deprive schools in this State, not the common schools, from participation in the educational fund of the State, as to all pupils therein taught in the elementary branches of an english education." Therefore, the provisions of the last quoted section from the Constitution necessarily excepts to the uniformity otherwise required by Section 6576. (Barber v. Alexander, 120 Ga. 30.) The Constitutional provision of Section 6580 (Sec. 2-7001, Code of 1933) above referred to, specifically provided that existing local school systems shall not in any wise be affected by the Constitution of 1877. It would seem that it was the intention of this Section of the Constitution to provide that the general provisions of the Constitution of 1877, and especially Section 6576 (Sec. ~-6601, Code of 1933), should not affect the system of education then in force in Chatham County. Section 6580 (Sec. ~-7001, Code of 1933) seems to be a complete answer to any argument to the contrary. Therefore, it would appear that the specific provision written into the Constitution of 1877 provides that the system of public education in force in Chatham County was not affected by the Constitution of 1877. If tlie last statement is true it necessarily follows that the system of education in Chatham County does not come under the uniformity clause of the Constitution. (Code Section 6576; Sec. 2-6601, Code of 1933). That no general law upon the subject of public education enacted by the General Assembly since December 18, 1866, shall be held, deemed or construed to interfere with, diminish, or supersede the rights, powers and authority conferred upon the Board of Public Education for the City of Savannah and the County of Chatham by the Act approved March ~1, 1866, by the Act approved December 18, 1866, and by any subsequent Act of the General Assembly which may have conferred additional power upon said Board, unless such general law shall so expressly provide. The general rule referred to in the beginning of this letter, to wit, the Stanton School Book Law, and particularly Section 18 of said Act, does not expressly assert that its provisions shall apply to the system of public education in force in Chatham County. It is my personal view, therefore, that the Stanton Uniform Textbook Bill does not affect your Board. Of course, any Act of the General Assembly passed in reference to your Board of Education would be binding, as well as any Act of the General Assembly of general application which might expressly refer to it.

140
It is my view that the powers conferred under the Act of March ~1. 1866, and under the Act of December 18, 1866, upon the Board of Education carries the right to fix the curricula and to prescribe textbooks, and that this right is perpetuated in the Board of Education by the Act of December 18, 1866, and, therefore, is not disturbed by the Uniform Textbook Law which did not expressly so provide.
Since this matter is not one in which the State Department of Education is directly interested, this letter cannot be treated as an official opinion. It is not intended as such and is, therefore, not binding on the authorities. It is intended to express my own personal views. In the event of conflicting contentions between the Board and the Textbook Commission, it is a matter which would necessarily have to be determined and passed upon by the courts. In that event I would have to advise and represent the Textbook Commission.
EDUCATION-County Board of Education authorized to make Home Economics compulsory course for all girls in certain grades
June 22, 1934 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of the 21st instant requesting an opinion as to whether or not the trustees of a school district have authority to make home economics a compulsory course for all girls in certain grades and if the trustees do not have this authority, whether the County Board of Education has such authority.
Nowhere in the school laws do I find any authority granted to the local school district trustees to prescribe the courses of study or curriculum of their respective schools. It is true that in the case of Samuel Benedict Memorial School v. Bradford, Ill Ga. 801, our Supreme Court held:
"The authorities of a public school. have full power to make it a part of the school course to write compositions and enter into debates, and to prescribe that all pupils shall participate therein." However, this decision was rendered prior to the Act of 1919 under which we now find the authority of local school district trustees, as well as the powers and duties of the County Board of Education. It is my opinion that the local school district trustees have no authority to make home economics a compulsory course. Consideration of Sections 37-1101, 37-904, 37-1008 and 37-1001 leads me to the conclusion that the power to prescribe the curriculum of the schools of the county is vested in the County Board of Education. Section 37-904 provides a uniform system of textbooks for common schools, which shall include the following elements of an English education only, to wit: "Orthography, reading, writing, arithmetic, geography, English language lessons, English grammar, history of Georgia, containing the Constitution of the State of Georgia, history of the United

141
States, containing the Constitution of the United States, physiology and hygiene, the elementary principles of agriculture and civil government, the elementary rudiments of vocal music, provided that teaching the elementary rudiments of vocal music shall be optional with the county and city boards of education and not required as in the case of other elements of an English education, and such other branches of study in addition to the above mentioned as may be from time to time provided by statute, and not conflicting with the Constitution of this State." By Section 37-1145 the power was conferred upon the county tax levying authorities of the several counties of this state, as well as the county boards of education, to carry on educational work for the promotion of the extension work in agriculture and home economics under the provisions of the Act of Congress, approved May 8, 1914 (Barnes, Federal Code, Sections 8413, 8414, 8518, U. S. C. A., Title 7). By a resolution of the General Assembly of Georgia under date of August 14, 1914, the legislature gave assent of the State to said Act of Congress. It is, therefore, my opinion that the county board of education has the authority to make home economics a compulsory course in the common schools of our State.
EDUCATION-Gasoline used -in school buses owned and operated either by the county or private parties contracting with the county board of education, subject to taxation
September 26, 1933
Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
The letters of Mr. R. M. Kimsey of Young Harris, Georgia, and Mr. T. G. Knight of Empire, Georgia, both dated September 21st and referred by you to this office for an opinion, have been received.
Since both of these letters require the same information, I am writing one opinion which will cover both cases.
These gentlemen ask whether an exemption is allowed under our law from the fuel tax or gasoline tax imposed under the General Tax Act of August 25, 1927, and amended August 29, 1929, and March 81, 1931, to the County Boards of Education who own and operate buses for the transportation of school children and not for any profit. Also, it is asked whether a person operating such a school bus owned himself, for the transportation of school children under private contract with the County Board would be exempt from the payment of the gasoline tax. In both cases, it is my opinion that such an exemption is not allowed under the law.
I base my opinion upon the decision of the Supreme Court contained in Wright v. Fulton County, 169 Ga. 354 (4b). The Supreme Court considered this very question at length, and it was stated in this decision that our General Tax Act "embraces all persons, firms,

14~
corporations, and political subdivisions of this State, engaged in importing and selling said products or procuring said products for their own use without the purpose of making profit from the sale thereof. We cannot see how such a classification can be held to be unreasonable and arbitrary unless it can be said that the imposition of an occupation tax on a political subdivision of the State is arbitrary and unreasonable." The following language is also contained in this opinion on page 361: "In its last analysis, the question for decision under the facts is this: Can the State tax the property of Counties or impose upon them an occupational tax when they engage in some line of business incidental to their governmental functions?" You will note from the reading of this language that the operation of a school bus owned by the County and used for the transportation of students to and froin the school would be construed as an Act in furtherance of the "governmental functions" of the County which is a political subdivision of the State. It was further decided in this case that even though such a function is without profit to the County, this does not exempt the County from the payment of the tax. Under the definition and construction given the word "distributors" as contained in this Act, I feel that the County Authorities, even though they owned a separate tank and dispensed gasoline from this tank to the buses, they would be subject to the gasoline tax.
It is a well established principle of law that taxation is the rule and exemptions therefrom are the exception. Under the General Tax Act, no exemption has been made to Counties operating school buses.
EDUCATION-Tax Receiver not entitled to commission for making up school district digests
October 81, 1984 Mr. M. R. Little State School Supervisor Atlanta, Georgia Dear Mr. Little:
I have yours of the 26th instant requesting an opinion as to whether or not tax receivers are entitled to a commission, the same as the tax collector, for making up the school district digest, the same being in addition to his regular commission for making the county digest, from each local school district.
I assume that you refer to the special tax digest of a local school tax district as provided for in Civil Code Section 1551 {141). This section prescribes the powers and duties of the trustees and secretary of a local school district which levies a local tax for educational purposes and among other things provides:
"They shall receive from the county board of education the share of the public school funds apportioned to the district by the county board of education. They shall determine the amount necessary to be raised by local taxes on all property of the district. The secretary of the board of trustees of said district, with the

148
aid of the county school commtssoner of said county, shall ascertain from the tax returns made to the tax receiver and from the tax (returns) made to the Comptroller General, the total value of all the property in said district subject to taxation for county purposes and a regular digest of all such property in said school district shall be made by said secretary in a book furnished by the board of trustees and kept for that purpose . . . . A copy of the special tax digest of said local tax district shall be furnished by the Secretary of the local board of trustees to the tax collector of the county." Section 1551 (142) of the Civil Code makes it the duty of the tax collector to compute and collect said taxes, keep the same separate by school districts from the county and State funds, etc., and gives the tax collector a commission of 2V2% of the amount collected up to $18,000.00 and I.%:% on any additional amount collected. By a close scrutiny of these sections, it is seen that the law imposes no duties upon the tax receiver with respect to making the digests provided for, or with respect to the computing or collecting of taxes so levied and returned. Therefore, it is my opinion that the tax receiver is not entitled to any compensation for acts done in his official capacity with respect to such digests or taxes. The tax receiver, it occurs to me, occupies the same position with respect to these local tax digests and the computing and collecting of these local taxes, as he does in the case of the county-wide school taxes. This being true, our Supreme Court has held that a tax receiver is not entitled to a commission on the county-wide school taxes, even though the same was computed and levied from digests prepared by him, since the law did not impose such duty upon him, and neither contemplated the performance of these services by the tax receiver nor the payment of such official for the rendering of such service. See Board of Education of Decatur County v. Drake, 157 Ga. 8; Hurst v. Board of Burke County, 157 Ga. 648.
TAXATION-No specific authority given whereby patrons may vote to limit local school tax levy
May 80, 1933
Hon. M. D. Collins State Superintendent of Schools
Dear Mr. Collins: Your letter of May 26th inclosing an original letter from Mr. G. J.
Wooten from Broxton, Georgia, is acknowledged. You request that we furnish you an opinion as to the legal pro-
cedure to be taken where the patrons of a school district which has local tax desires to vote to reduce the tax to a two and one-half mill maximum.
You are familiar with the provisions of Code Section 1551 (131), (Section 122 of the Georgia School Code), which provides for the right of the citizens of any county to vote a county-wide school tax;

144
and the provisions of Section 1551 (133), (Section 124 of the School Code) which gives to the citizens of any school district the right to vote a local tax to supplement the funds received from the State public school fund.
No specific authority is given in the School Code whereby the patrons may vote to limit the local tax levy to 2Y2 mills, or any other specific maximum under five mills, after it has once been voted in. However, by the provisions of Section 1551 (141) (Section 129 of the School Code), it is provided that the Secretary of the Board of Trustees with the aid of the County Superintendent of Schools shall ascertain from the tax returns made to the tax receiver and from the tax returns made to the Comptroller General the total value of all the property in the district subject to taxation for county purposes and make up a legal digest of all of such property; that at the time of or before the fixing of the rate of taxes for the County, the Secretary of the local Board of Trustees with the aid of the County Superintendent shall levy such a rate on the property thus found as will raise the total amount to be collected and the rate thus levied shall not exceed one-half of one percent.
Under the provisions of this last named section, authority of the Secretary of the local Board and the County Superintendent of Schools is sufficient to enable them to make such levy as is actually needed, and, of course, they can levy any rate from one to five mills. In the case of Dobbs v. Hardin, 137 Ga. 191, it was held that the other members of the Board of Trustees might take part in ascertaining or determining what rate of taxation is required to be levied in order to raise the amount fixed by the trustees. It was there held that the levying of the rate was a ministerial act, purely a matter of mathematical calculation.
Therefore, I am of the opinion that the question of levying of the local tax in this district, where the same has been legally voted in, should be fixed by the authorities as provided for in the Act.
From the second question in your letter it also appears that this particular district has an outstanding bond issue. If this be true, of course the local tax provided by the statute above referred to necessarily had to be voted by the patrons of the district before the bonds could have been voted and sold. Only such districts as have local tax are authorized under the statute to vote bonds for the purpose of building and equipping school houses. See Section 1551 (155) (Section 143 of the School Code).
You further request that we give you an opinion as to what procedure should be taken by the citizens of this district to vote on the 9uestion of assessing 2Y2 mills for a sinking fund to retire the bond Issue.
You are familiar with the provisions of the law as given in Code Section 1551 (157), (Section 145 of the School Code), which requires that before the bonds are sold a resolution shall be passed by the Board of Trustees or Board of Education recommending the levy of a sufficient amount of tax to take care of and pay the principal and interest on the bonds for the district, and that this tax thus

145
recommended shall be levied by the County Board of Commissioners or the Ordinary as the case may be, upon all the properties subject to taxation in the school district, and that such tax should be sufficient to provide a sinking fund for the retirement of the bonds and for the paying of the principal thereof and the interest thereon. This levy is in addition to the general tax for the maintenance of the schools of said district.
Therefore, at the time the bonds were voted and before they were issued and sold, it was necessary under the law that provisions be made for the payment of the bonds, including principal and interest as above provided. Under this provision of law the school authorities are required to levy a sufficient tax to provide for the payment of the bonds. No additional election is required for this purpose. The authorities have the right to levy the necessary rate, whatever that might be, and are supposed to do this. Should they fail to make the levy which may be sufficient to retire the bonds as they fall due, to pay the interest thereon, or to provide for a sufficient sinking fund to retire said bonds, both principal and interest, then they would be subject to mandamus by the bond holders.
EDUCATION-County line schools
December 15, 1933 Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
Your letter of recent date, enclosing the letter of Mr. R. A. Oglesby, Superintendent of Lula School, has been received.
Mr. Oglesby states in his letter that the Lula School District is an independent system established by an act of the legislature in 1919, Acts 1919, pp. 140Q-1405, and is a county line school located in both Hall and Banks Counties, but being largely in and having school buildings located in Hall County. He desires to know whether the boards of trustees of Enon and Lula school districts and the county boards of Hall and Banks Counties can, among themselves, without resort to an election, make an agreement to bring all or part of the Enon school (for example, the upper class) to Lula for instructions, and whether such a contract should be for a specified time. This and the other questions asked in Mr. Oglesby's letter are answered by Section 111 of the Code of School Laws (Georgia Laws 1919, p. 331).
It was held by our Supreme Court, in the case of Fitzpatrick v. Johnson, 174 Ga. 746, that a county board of education under Section 93 of the Code of School laws is authorized to provide transportation for pupils and teachers to and from a consolidated school district, in a given county, only when such consolidation is made under Section 9~ of the school code, and that the Board of Education of a county is not authorized to pay the transportation of pupils and teachers of one county to a consolidated school in another county, but under Section 111 of the school code relative to county

146
line schools, children in the county line school district could be provided for. This case was decided before the amendment to paragraph I, Section 4, Article 8, of our Constitution was ratified at the last general election, which amendment is as follows:
"County Boards of Education, independent school systems and local school districts may contract with each other for the education, transportation and care of children of school age." We understand from Mr. Oglesby's letter that the Lula school is not a consolidated school as provided under Section 92 of the School Code. Therefore, prior to the passage of the above stated amendment, it is doubtful that the various school boards concerned would have had the authority to transport pupils from another school district to the Lula school for instruction, however, under this amendment, they now have this authority. This contract between the various boards should be for a definite time, and specific in its terms. It is provided with reference to county line schools and attendance of the same by children living in another county, that "Arrangements for attendance upon county line schools are under the authority and direction of the superintendents concerned, representing their respective boards, and provisions shall be made for such children just as for others." The contract referred to by Mr. Oglesby, therefore, would be between the superintendents representing the county boards of education of the respective counties. Of course, it will be proper for the local boards of trustees to, by a majority vote, sanction this arrangement, and also for the county board of education to pass a resolution by a majority vote authorizing the superintendents to make such contracts if it is deemed to the best interest and welfare of the schools concerned. This ruling would be applicable to other county line districts adjoining Lula under similar conditions. As stated above, all of these arrangements are provided for and must be in conformity with Section lll of the Georgia School Code, Section 1551 {ll9) Michie's Code of 1926.
EDUCATION-Sources of revenue from which school bonds may be paid
March 28, 1988
Hon. M. D. Collins State School Superintendent Dear Mr. Collins:
Your letter of March 25th inclosing an original letter from Mr. Max V. Tolber, County Superintendent of Schools of Gordon County and in which letter you ask if there is any other source of income other than local tax levied for bond purposes from which school bonds can be paid, is acknowledged.
In reply to your letter I wish to advise that the law relating to school bonds is clear and specific in its provisions as to how such

147
bonded indebtedness shall be paid. The law is equally as clear with respect to the expenditures of the public school fund consisting of State appropriations, county-wide levy of taxes for school purposes, and local tax levies, and provides that such fund shall be used in the payment of teachers' salaries, truck drivers' salaries and incidental expenses of the operation of the schools.
At the time the bond indebtedness was incurred in the particular school district in question, provision was necessarily made to provide for the retirement of said bond indebtedness and for paying the principal thereof and interest thereon. Provision was made for this payment by the issuance of a proper resolution by the board, either prior to the judgment of validation or prior to the issuance and sale of the bonds. The resolution was recommending the levy of a tax for said purposes upon the property subject to taxation.
The constitutional provision with reference to the payment of bonded indebtedness is found in Code Section 6564, Michie's Code of 1926, (Section 2-5502, Code of 1933), and is as follows:
"Any county, municipal corporation, or political division of this State, which shall incur any bonded indebtedness under the provisions of the Constitution, shall, at or before the time of so doing, provide for the assessment and collection of an annual tax, sufficient in amount to pay the principal and interest of said debt within thirty years from the date of the incurring of said indebtedness." By the Act of the Legislature of 1921, codified as Code Section 1551 (157), provision was made for the payment of bonded indebtedness in local school districts. The pertinent portions of said section are as follows: "For the purpose of taking care of and paying the principal and interest of these bonds for the district, consolidated district, or county, the board of trustees or board of education shall recommend and the board of county commissioners or ordinary, as the case may be, shall levy upon the property subject to taxation in the school district, consolidated district, or county, as the case may be, such as may be necessary to provide a sinking fund for the retirement of said bonds, and for paying the principal thereof and interest thereon; this to be in addition to the general tax for the maintenance of the schools of said territory."
By the above provisions of law, the school authorities whose duty it is to recommend the levy of taxes for such purposes are authorized to recommend a sufficient levy to pay the bonded indebtedness in such district. This authority is discussed in the case of Seaboard Air Line Railroad Company vs. Wright, 165 Ga. 367.
In the event such school district, consolidated district, or county, does not levy a sufficient tax to provide a sinking fund for the retire~ent of the bonds as they come due and for the payment of the mterest thereon as it comes due, the holder of the bonds would probably have to institute a mandamus proceeding against the authorities whose duty it was to recommend the levy and against the county authorities to compel them to levy such tax as is sufficient to

148

provide the necessary funds for the payment of the principal and

interest on the bonds.

'

The law is clear and specific in providing the methods to be used in

raising funds to pay off the bonded indebtedness, when and as it falls

due. That being true, we do not think that there is any other source

of income from which funds may be derived for the payment of the

bonded indebtedness.

EDUCATION-Who qualified to vote in school bond election
June 2, 1983
Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
Your letter of May 31st requesting an opinion as to who will be qualified to vote in a school bond election to be held in June, 1988, is is acknowledged.
In reply thereto I wish to advise that Section 143 of the School Code, which is Section 1551 (155) of Michie's Code of 1926, contains the provisions relating to elections for bonds to build and equip schoolhouses. The particular provision of said section which deals with the voters who are qualified to vote in said election is as follows:
"None but registered qualified voters shall be permitted to vote in said election. The tax collector shall furnish a certified list of registered voters in such school district, consolidated school district, or county, to the managers of the election ten days before such election is held." The provisions of Section 61 of the Code deal with registration for special elections and have been declared to be null and void as to registration for special elections for bonds. This was brought about by the adoption of a constitutional amendment in 1918, which amendment is now codified in Code Section 6563. There is now no special election law providing for the special registration of voters for bond elections. See Terrell v. Forest Park School District, 175 Ga. 88. Quoting from page 90: "Thus it will be seen that there is no valid law in Georgia providing for special registration of voters for bond elections." I am of the opinion that under the provisions of law governing the duties of registrars it would be their duty to purge the list of the voters of the last general election in the militia districts which will contain the names of the voters residing in the school district voting on the bonds. From these purged lists the tax collector is required to make a list of the voters residing in the school district whose names appear upon said lists after they have been purged. This list is to be certified by the tax collector to the election managers as provided in the sections quoted above. Since there can be no special registration for bond elections, those whose names appear upon the list used at the last general election after said lists have been purged by the registrars are eligible to

149
vote. The tax collector should make up and certify to the election managers a list of all of the voters whose names appear upon the purged lists of the last general election furnished him by the registrars, who reside within the district voting on bonds.
In the case of Chapman v. Sumner Cons. School District, 152 Ga. 450 (2), it was held that no person is lawfully entitled to vote in a school district bond election whose name does not appear on any list of county registrars filed with the Clerk of the Superior Court of the county showing the names of the registered voters in the county entitled to vote, and this is true notwithstanding the fact that the name of such person does appear on a certified list of registered voters furnished by the Ordinary to the managers of the election. It was held to be the purpose of this Act to require the Ordinary, then, now the tax collector, to procure a certified list of registered voters from the legally constituted Board of Registrars and furnish the same to the election managers.
It would seem that the last expression of the Supreme Court on the particular question raised by your letter is found in the Terrell v. Forest Park School District case in 175 Georgia, page 88, first headnote, which holds that there is no authority of law whereby any person legally qualified to register but whose name does not appear on the list of voters made up, certified and filed with the clerk for the last general election, may be registered so as to entitle him to vote in a "special local school district bond election held more than six months after the voters' book closed for the last general election."
EDUCATION-Vacancy on County J:Joard of Education, how filled
July 10, 1933 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
In reply to your letter of July 8th in which you ask the question, "if a member of the County Board of Education resigns, moves out of the district, or dies before his term of office expires, will the Judge of that circuit, or the grand jury, at its next meeting, appoint a board member to fill the unexpired term, or will the grand jury appoint a member for the full four year period", is acknowledged.
You state that some of the school superintendents are under the impression that there is no such thing as an unexpired term of a county board of education member, basing their contention on the decision rendered in the case of Stephenson v. Powell, 169 Ga. 406.
The case referred to cannot be authority for such an impression because in that case the court held that the office does not expire at the expiration of the four year term, but the elected officer holds over until his successor is commissioned and qualified; that such a holding over prevents a vacancy.
In the Stephenson case the term of office of Stephenson had not expired and, therefore, the court below erred in granting the order

150
revoking and annulling the order of the Superior Court under date of May 18, 1929. If Stephenson's term had expired, he was holding over, and under the law there was no vacancy to be filled by the Judge.
What the court there said cannot apply where there is a vacancy. Death or resignation will create a vacancy and when a vacancy exists either because of such a resignation or because of death, such vacancy would necessarily have to be filled in accordance with the provisions of Section 37-1105 of the New School Laws, (Section 1551 (82) of Michie's Code of 1926). These provisions are to the effect that vacancies on the County Board of Education are filled by the Judges of the Superior Courts by appointment, until the next session of the grand jury in their said counties, when said vacancies shall be filled by said grand jury and in the same manner and form as required for original appointments as provided by Section 37-1102 of the New School Code (Section 1551 (82) of Michie's Code).
Therefore, when for any reason a vacancy exists, the vacancy must be filled as stated above. A vacancy, however, does not exist so long as the old member is holding over because of the failure of the grand jury to designate a successor.
EDUCATION-Member of County Board of Education who is Solicitor of City Court violates Section 259 of Civil Code (Section 89-103, Code of 1933) prohibiting one person from holding two county offices
July 28, 1984
Hon. M. D. Collii:ts State Superintendent of Schools Dear Mr. Collins:
I have your request for an opinion upon the facts stated in the letter of Mr. S. J. Powell of the 25th instant as to whether a person may hold a position as a member of the County Board of Education and be a Solicitor of a City Court at the same time.
Section 259 of the Civil Code (Section 89-103, Code of 1933) provides that no person shall hold, in any manner whatever, or be commissioned to hold, at one time, more than one county office, except by special enactment of the legislature heretofore or hereafter made, etc.
Our courts have repeatedly held that a member of the County Board of Education is a County Officer. It is my opinion that a Solicitor of a City Court is also a County Officer. Therefore, you can clearly see where Section 259 (Section 89-103, Code of 1933) would be violated by a person who holds office in both of these capacities at the same time.

151
EDUCATION-Responsibility of County Board of Education for training of children in high schools
August 22, 1933 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
In reply to your letter of August 15th, enclosing copy of letter from T. M. Purcell, in which he desires information as to whether or not a County Board is responsible for the training of the children in a high school, I wish to advise as follows:
The constitutional provision relative to schools in this State has been changed so as to provide a uniform system of education free to all children in the State. See Section 6576 of Michie's Code of 1926. Prior to the Act of 1911, this constitutional provision applied only to the "elementary branches of an English education."
The statutory provision will be found in Section 1551 (8) and 1551 (114). I refer you also to the case of Smith v. Tolbert, 160 Ga. 268, which deals with the authority of County Boards and Local Boards to pay the salaries of the principal and at least one assistant high school teacher, in high schools of the counties.
Under the present law there is no authority by which the County Board of Education should confine its responsibility to school children of the first seven grades. The duty and responsibility is equally as great for the high school grades as for the grammar grades.
EDUCATION-Certified copy of bond of Treasurer of Independent School District must be furnished State Superintendent of Schools before he is authorized to transmit school funds to such Treasurer
January 28, 1983 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
I have your communication: transmitting a letter from Mr. R. D. Eadie, Supt. of Schools of Glynn County, and a letter from Mr. Ormand B. Strong, Supt. of Schools of Chatham County, also a letter from Mr. Walter P. Jones, Supt. of Schools of Bibb County, which was transmitted to this office together with a certified copy of the bond of Joseph Neil, Sr., Treasurer of the Board of Education of Bibb County.
The Constitution of 1877, Article 8, Section 1, Paragraph 1, provides that:
"Existing local school systems shall not be affected by this Constitution." The Board of Education of the City of Savannah was created by an Act approved March 21, 1866, (Georgia Laws 1865-66, p. 78). By an Act approved December 18, 1866, (Georgia Laws 1866, p. 175), the powers and duties of this Board were extended to the County of Chatham. This was, therefore, a local system existing

152
at the time of the adoption of the Constitution of 1877 and is governed by the Acts referred to and Acts amendatory thereof. Under the Act of March fl1, 1866, as amended, the Board of Education of Chatham County therein provided for is authorized to receive from the State or any other agency the educational funds of Chatham. I think, therefore, that this Board would be authorized to name a disbursing officer other than the County Superintendent and that you would be authorized to forward school funds of that county to such official upon his qualifying. I think, therefore, that the Superintendent of Schools of Chatham County is not required to give a surety bond before the school funds are sent to the proper official of that County.
By an Act approved February fl1, 1873, provision was made for a Board of Education for Glynn County. By an Amendment to this Act approved August 12, 1914, this Board was empowered to elect a treasurer and authorized in lieu of a treasurer to designate a bank in Glynn County as custodian of its funds and to perform all the duties of the treasurer of the Board. Such bank is required to give a good and sufficient bond. I think, therefore, that you would be authorized to forward to the bank designated by the Board of Education of Glynn County the public school funds of such County upon such bank qualifying and executing the necessary bond. It is not necessary for the County Superintendent of Schools of Glynn County , to execute a surety bond before these funds are forwarded to the Custodian selected by the County Board of Education.
The Board of Education of Bibb County was created by an Act approved August 23, 1872; by an amendatory Act approved February 24, 1873, that Board was authorized to elect a Treasurer to receive and disburse the school funds of Bibb County under the supervision and control of the Board of Education. You would be authorized, therefore, to forward public school funds of Bibb County to the Treasurer elected by the Board of Education of that county upon his qualifying. It is not necessary, in my opinion, that the County Superintendent of Schools of Bibb County execute a surety bond before the public school funds due to the county are transmitted to the proper official.
In each of these cases, however, it would be proper for a certified copy of the bond of the official designated to receive the public school funds to be transmitted to your office as required by law in the case of the bonds of county school superintendents before any such funds are forwarded.
I am returning herewith the certified copy of Mr. Neill's bond, as well as the letter from Mr. Jones, the letter from Mr. Eadie, and the letter from Mr. Strong.

153
EDUCATION-Authority of County Board to employ teachers
March 20, 1933 Dr. M.D. Collins State School Superintendent Dear Dr. Collins:
I am in receipt of your letter of recent date, which was brought to me by Mr. J. C. Buchan of Conyers, Georgia, and to which there was attached a communication from 1\Ir. Buchan.
The Georgia School Code (Michie's Code, 1551 (94}12) provides as follows:
"Powers of Board to Employ Teachers-Contracts must be in writing-The county boards are empowered to employ teachers to serve in the schools under their jurisdiction, and the contracts for said service shall be in writing, signed in duplicate by the teacher on his own behalf, and by the county school commissioners on behalf of the board." In Orr v. Riley, 160 Georgia, 480, the Supreme Court held that contracts between County Boards of Education and teachers in the schools under their jurisdiction must be in writing. This case also holds that local district trustees have no authority to employ teachers and make contracts with them for their services as such. It also holds that in a case where the County Board of Education has failed to act, neither the county school superintendent nor the trustees of the local school district have authority to employ teachers. The rule in Orr v. Riley was followed by the Court of Appeals in Greene v. Snellville Consolidated School District, 39 Georgia Appeals, 178. In that case the Court of Appeals held that a suit by a teacher based upon a verbal contract with a local board of trustees was properly dismissed on demurrer. Under the authorities above cited, it is my opinion that a County Board of Education is not legally bound to pay the salary of a teacher who was "elected" by the board but with whom the board entered into no written contract, where the teacher performed no service. Under the same authorities it is my opinion that the treasurer of a local school district would not be authorized to pay any funds in his hands arising from local district taxation to such teacher. Mr. Buchan discussed the matter at some length with this Department and was informed at the time of the view herein expressed. He asked, however, that the opinion be transmitted to you in due course.
EDUCATION-If local tax district has no properly bonded treasurer, County Board of Education may disburse funds
October 3, 1988 Hon. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
Yours of the 28th instant, enclosing letter of Supt. R. L. Johnson, of Macon County, has been received.

154
Mr. Johnson desires to know "whether or not the County Board of Education may pay the teachers, bus drivers, and other actual expenses o the Marshallville School, which is a local tax district school, without the approval of the local Board of Trustees."
It is my opinion that this question is determined by Code Section 1438 (e) of Park's Annotated Code, or in the Acts of 1919, p. 336. It would be determined by whether or not the local tax district has a bonded Treasurer, who is the disbursing officer for said local tax district. The section above cited states as follows, with reference to same:
"Further, the Treasurer (of the local board) shall make proper bond payable to the County Board of Education. In the event of failure to make this bond as required, all funds raised by local taxation, or otherwise, shall be paid over to the County Board of Education, to be disbursed by order of that body." It is my opinion that if the local school district has no bonded Treasurer, the funds should be paid out properly by Mr. R. L. Johnson, with the approval of the County Board of Education. If the local tax school district has a bonded Treasurer, then it is my opinion that the funds derived from local taxation for the school should be disbursed by said local bonded Treasurer. Mr. Johnson does not state in his letter whether the local Board of Trustees has a bonded Treasurer or not. The election of local Trustees is provided for in Section 37-1304 of the School Code, or Section 1438 (d) of Park's Annotated Code. It is provided in that Section: "After the local Board of Trustees have been approved and properly commissioned by the County Board of Education, it shall meet immediately and organize by electing one of its members President, and one Secretary and Treasurer." The section already cited above states the requirements of the Treasurer so elected in giving a bond, payable to the County Board of Education. It is clear that under these sections the Treasurer of the Local Board, when properly bonded, is the proper disbursing officer for the funds raised in said school district from local taxation. In the case of Taylor v. Mathews, 10 Ga. Apps. 857, it is stated that: "It is the purpose and 'spirit of this article to encourage individual action and local self-help upon the part of the school district, but it is expressly understood that the general school laws of this State as administered by the County Board of Education shall be observed. We apprehend this section to mean that as the County Board of Education is subordinate to the State Board of Education, and to the State Commissioner of Education, who is its chief executive officer, so the authorities of a school district laid out according to law are to be subordinate to the regulations of the County Board of Education; and, nevertheless, individual action and local self-help on the part of a school district is to be given the fullest recognition by those charged with the administration of our public school system, who are superior in authority to the school district authorities." This principle of construction seems applicable in your case.

155

EDUCATION-County Board of Education has no authority to invest public funds in property already devoted to school purposes

Hon. M.D. Collins
State Superintendent of Schools
Dear Mr. Collins: Yours of the ~5th instant received. You ask:

October 8, 1938

"Would it be legal for a County Board of Education to accept a

deed from the Local Board of Trustees of a School District to the

school house and school site, and contract or agree to reimburse the local citizens, who through public subscriptions built the school building?"

It is evident from the facts stated in your letter that the local citizens through public subscriptions built a school building in their

district; that the title to this property was vested in the Local Board of Trustees. It does not appear whether the land upon which the school house was built was bought by the Local Board of Trustees or whether the same was donated by some party. It likewise does not appear whether or not this deed has any restrictions or limitations relating to the use of the property for school purposes and whether

or not the property reverts when it ceases to be used for school purposes, etc.

From the facts stated, it appearing that the property was donated by the citizens and that it was dedicated to school purposes, I do not think that the County Board of Education would have the right

to invest public school funds in the purchase of property already dedicated to school purposes, where the purpose of the purchase was to reimburse the citizens who had made subscriptions at the time of

the building of the school house.

It is true that under the law County Boards of Education have

the power to purchase, lease or rent school sites. (Section 1551 (89)). However, I am of the opinion that these provisions of law are intended to apply where there is no school building in the district. Where a building is owned by the Local Board of Trustees under

and by virtue of a deed made to them by the specific provisions of Section 1551 (89) the County Board of Education is vested with the title, care and custody of such property. The provisions referred to are as follows:

"The said boards (County Boards of Education) are vested with

the title, care and custody of all school houses or property belonging to the subdistricts now or hereafter defined, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the

board, any school house site has become unnecessary or inconvenient they may sell the same in the name of the County Board of Education." (Section 1551 (89)).
The second question you ask is as follows: "Would it be legal for the County Board to spend accumulated funds to buy an erected buildi~g, or, if not, then would it be

156
possible for them (the County Board) to reimburse these citizens for that portion of the money expended on the old building in the nature of repairs?" Under the general authority vested in County Boards of Education to purchase, lease or rent school sites, I think they have the power to apply any accumulated unused part of the public school fund for the purpose of purchasing school sites. Of course, they would not be authorized to use any of the public school fund for such purposes unless and until all of the operating expenses for the year have been paid, including teachers' salaries, transportation, incidentals, etc. As stated .above, however, I do not think the board would be authorized in making such purchase from the Local Board of Trustees for the purpose of reimbursing citizens for that portion of the money expended by them in the form of subscriptions used in the construction or repairing of the building. If the title to the school property referred to is vested in the Local Board of Trustees for school purposes, then the provisions of Section 1551 (89) quoted above would apply to vest such title, care, and custody of such property in the County Board of Education for school purposes and subject to any limitations or restrictions in the deed actually conveying the property to the Local Board of Trustees.
EDUCATION-County Board of Education without authority to spend school funds in making addition to school house where title is in local district trustees
June !l:t, 1984 Hon. M. D. Collins State School Superintendent Dear Dr. Collins:
I have yours of the flOth instant inclosing a letter of Mr. W. J. Greene, Jr., Superintendent of Schools at Ringgold, Georgia, requesting an opinion as to whether the County Board of Education may expend school funds of the county to make an addition to a school building, the deed to which is in the name of the Local District School Trustees.
By the provisions of Section 87-1109 of the School Code (Michie's Code, 1551 (89)),
"The County Boards of Education shall have the power to . . . . purchase, lease or rent school sites; build, repair or rent school houses . . . . and make all arrangements necessary to the efficient operation of the schools. The said Boards are vested with the title, care and custody of all school houses or other property belonging to the districts, now or hereafter defined, with power to control the same in such manner as they think will best serve the interest of the common schools, etc." It is my opinion that the above provisions vested the County Boards of Education with power to build, repair, and rent only those school houses to which the County Board has title. It is my further opinion that this statute does not, ipso facto., vest the legal

157

title to a school building located in a Local School District in the

County Board of Education, where the deed to such premises is

made to the Local School District Trustees. See Dominy v. Stanley,

16~ Ga. ~11.



The legal title to such property could be made to vest in the

County Board of Education only by a proper deed of conveyance

executed by the Local School District Trustees. Until such a con-

veyance is made, it is my opinion that the County Board of Educa-

tion is without authority to spend funds raised by taxation in the

County in building additional rooms and repairing said school

building located on property to which the County Board of Educa-

tion has no title.

EDUCATION-Local District Trustees not a prerequisite to holding election for local school tax
January 26, 1984 Hon. M. D. Collins State School Superintendent Dear Mr. Collins:
Yours of the 25th instant requesting an opinion as to whether or not it would be legal for the County Board of Education to call an election for local district tax in a district which does not have local trustees, has been received. In other words, you ask, "Is it a prerequisite that there be District Trustees in order to vote and levy District School Tax?"
Under Section 37-1301 of the School Code, it is made the duty of the County Board of Education to lay off the County into School Districts. Under Section 37-1304, it is provided:
"Within ninety days after the Board of Education has laid off the County as required in Sections 37-1301 and S7-U302, said Board may or may not order the citizens of the several school districts to hold an election for the purpose of electing five trustees for each District in the County." Therefore, it seems under Section 37-1804, it is made discretionary with the County Board of Education as to whether or not local district trustees shall be elected in any particular district laid off by the County Board of Education and we would infer from this language that it is possible for a district to be created, exist and function under the supervision of the County Board of Education without having elected local district trustees and without any local district trustees. Under Section 87-1308, a method is provided whereby the citizens of any school district wishing to supplement the funds received from the State public school funds may levy a tax for educational purposes. It is provided therein that this election is ordered by the Ordinary of the County and "held at a time and place prescribed by the proper authorities, and under rules governing Ordinary elections."

158
Construing all of these sections together, it is my opinion that it is not a prerequisite that there shall be district trustees in order to vote and levy a district school tax and that the same may be done by the action of the County Board of Education, irrespective of the fact that no local district trustees have ever been elected in a local district.
EDUCATION-Powers of local trustees in connection with school matters
November 24, 1988
Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
This will acknowledge receipt of the letter of Mr. Ernest B. Mingle dorff, Superintendent of Schools of Effingham County, requesting an opinion upon certain phases of the school law.
Mr. Mingledorff desires to know whether it is legal for a member of a local board of school trustees to rent a building owned by him self to the local school board for use as a regular school building, and to board teachers or rent homes to teachers employed by the board of which he is a member.
It is my opinion that there is no provision in our law which pro hibits a member of a local board from doing thethings set out above. In 56 C. J. 485, Section 515, the general principles of law with respect to such practices are outlined as follows:
"In some jurisdictions, statutes provide that a member of a local board or a school officer cannot, on behalf of the school district or other local school organization, enter into a contract in which he has an individual interest, and that in such case, the contract is void. Aside from expressed statutory enactment, such a contract is against public policy and in some jurisdictions it is held that a contract so entered into is void, but in other jurisdictions such contracts are merely voidable and are binding when properly ratified." Section 893 of Michie's Code of 1926 (Section 23-1718, Code of 1983) provides that no county officer may use public funds to purchase goods or property from any store in which he is an employee or from any person or partnership of which he is a member, or by whom he is employed unless by sanction of the majority of the Board of County Commissioners of the County, or unless it shall be made clearly to appear that said individual, partnership or owner of the store offers and will sell the goods or property as cheap or cheaper than it can be bought elsewhere. A local school trustee is not a county officer, but this section was cited in order to show the trend and attitude of our Legislation in this respect. Also, Section 855 (85) Michie's Code of 1926 (Section 28-1407, Code of 1988) prohibits any person holding office under any municipal corporation from making contracts with corporations in which he

159
has a personal interest. Also in Section 1565 (x) Park's Code of 1914, (Section 82-2608, Code of 1933), which is relative to the transportation of pupils, it is provided:
"No school trustee, teacher, or superintendent of county schools shall be interested financially in transportation of pupils." It is my opinion that a member of a local board of school trustees may legally rent a building owned by himself to the local board of trustees, so long as there is no fraud in the transaction, and the contract is approved by a majority of the members of the local board of trustees. Such a contract might be voidable, but not void. It is my further opinion that a local trustee could rent homes to teachers employed by the board. This would not be a contract of a public nature.
Mr. Mingledorff also desires information as to whether a local tax district can be enlarged (taking in non local tax territory) and a local maintenance tax election called without first repealing the local tax in the original district. "In other words, (Mr. Mingledorff asks) can additional territory be absorbed into a local tax district without jeopardizing the possibility of keeping the original levy."
Code Section 1551 (99), Michie's Code of 1926, vests the power of rearranging school districts in the County Board of Education when the best interest of the school demands. It gives the Board the right to add new territory by consolidating two districts or by adding a part ofone district to another, and further provides:
"But should as many as U of the patrons of said school or schools object to the consolidation (provided that said U of said patrons
shall consist of at least 10) it shall be the duty of the county superintendent to call an election to be held in said district or districts affected, giving thirty days notice of same by publishing same once a week for four weeks in the paper in which the county advertisements are published and also by posting notice at least at three or more public places in the district or districts to be affected thereby, at which election, should a majority of the qualified voters vote for consolidation of schools, shall be consolidated, otherwise not. The result of such election shall be determined and declared by the Board of Education and the same shall be held as other elections are held."
In the case of Perry et al v. Baggett, tax collector, 164 Ga. 148, the Board of Education of Laurens County consolidated the old Evergreen and new Evergreen School Districts with the Poplar Spring s School District. The Poplar Springs District was a local tax district, whereas the old and new Evergreen School Districts were not local t~x ~istricts, and it was claimed by Perry, who lived in one of these dtstrtcts, that after the consolidation was affected, he was not subject to. a local or district tax for support of local schools. The levy of five mtlls ~omplained against was made by virtue of the election that was held t.n Poplar Springs District prior to said consolidation and annexatw~, and is made on all property in said consolidated district a!ter sat~ annexation. Upon these facts, Perry brought an injunction agamst Baggett, seeking to restrain the collection of the five

160
mills for maintenance of the Poplar Springs School. The court refused an injunction, and the Supreme Court reversed this ruling.
A distinction was made in this case between the consolidation of two separate local school districts, and the mere addition of a part of the territory of one school district to that of another, leaving both school districts unchanged as to identity except as to the territory added to one from the other. The court held that a consolidation of two or more (whole) local school districts not only destroyed the identity of the consolidated districts but created an entirely new district. I direct your attention to the following language of Justice Beck in his opinion in this case:
"While the language used in this agreed statement of facts states in substance that the Evergreen Districts were annexed to the Poplar Springs District, we are of the opinion that this was a consolidation of the three districts; that it was not a mere addition of territory taken from the Evergreen Districts to the Poplar Springs District, though the new district retained the name of Poplar Springs."
It was intimated in the court's opinion that if there had been in this case only an addition of territory taken from one district to another, and both districts thus affected not destroyed, as in the case of a consolidation, then the people living in the territory added to the school district would be subject to the taxes for the maintenance of local schools of that district.
This principle was somewhat enlarged by the ruling of the Supreme Court in the case of: Huie et al v. Morris, Tax Commissioner, 176 Ga. 562. It was said by Justice Atkinson:
"As a general rule, the legislature may so extend the limits of an incorporated municipality as to include adjacent unincorporated territory without submitting the question to the voters, and without the consent of those residing or owning property in the added territory. Toney v. Macon, 119 Ga. 83. When the limits of a municipal corporation are so extended, all the inhabitants and their property within the limits so fixed are subject to taxation to raise municipal revenue for all legitimate purposes, without respect to the time when some of the liabilities arose. White v. Atlanta, 134 Ga. 532." The court cited the language of Section 92 of the Georgia Laws of 1919, pp. 288 et seq., which gives the County Board of Education the power to rearrange districts, subject to ratification or disapproval by a referendum of the people. In headnote 4, the court said: "By analogy to the general law as stated in the first division, supra, as a general rule, where a consolidation has occurred and the limits of the consolidated school district have been so extended as to include additional contiguous territory as indicated in the second division, supra, all the inhabitants and their property within the limit so fixed are subject to taxation to raise revenue for all legitimate purposes without respect to the time when some of the liabilities arose. In the instant case, this would extend

161
to taxation for the purposes of paying interest and providing a sinking fund to pay bonds for erecting the school building prior to the consolidation bringing in additional territory." In headnote 5 of this case, the court ruled: "A distinction has been drawn between the consolidation of entire school districts treating them as separate entities and the taking of a part of the territory from one school district and adding it to another, and holding that consolidation of entire school districts is an exception to the general rule above stated, and that property in the consolidated school districts which did not issue bonds, were not taxable for the purpose of meeting the bonds. Perry v. Baggett, 164 Ga. 143; Towns v. Workmore Public School District, 166 Ga. 393; Barber v. Cummings, 167 Ga. 289. In the case last cited, it was held: 'I. Where one school district incurs a bonded indebtedness for the purpose of building a school house, and this district and another district are consolidated so as to form a new consolidated district, the second district, the residents and taxpayers of which have not participated in the creation of the bonded debt, is not liable for any part of the debt incurred by the other district prior to the consolidation. 2. This case differs from one in which territory is taken from one district and added to another, where the latter is already liable for a debt. The territory thus added may be liable for its proportionate part of its existing debt.' The second ruling means that a case like that under consideration, where there was no consolidation of separate entities, but only a part of one district was added to another, comes within the general rule and not within the exception, and that the residents and their property in the added territory are subject to the tax." These decisions seem to settle the question in the mind of Mr. Mingledorff relative to the addition of territory to a local tax district. In other words, this case seems to hold that if the County Board of Education rearranges a school district under Code Section 1551 (99), and there is no referendum disapproving the action of the board, then the residents in the territory added to the district are subject to the payment of the tax.
EDUCATION-Where two districts consolidated, one having local tax and the other not, who elects trustees
June 16, 1933 Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
Your letter of the 14th, enclosing an original letter from Supt. J. Mason Williams, of Walton County, and in which you request an opinion from this Department as to the questions involved in said letter from Mr. Williams, is acknowledged.
Mr. Williams states that the school in Whatley's District and the one in Pleasant Valley District were consolidated by the County

162
Board of Education as provided by the provisions of Section 90 of the Georgia School Code. It also appears from his letter that the two districts were not consolidated, and that one of these two districts has a local tax and the other one does not. He further states that the patrons of Whatley's District, which district does not levy a local tax, think that they should be allowed to vote in the election for Trustees for the school, and think that they should be represented on the Board of Trustees; but that the patrons of Pleasant Valley District do not want them to vote or be represented on the Board.
Mr. Williams desires to know whether or not the Trustees should be elected from the districts affected or whether they should be confined to the one district which has local taxes.
Under the specific provisions of the Section, this is a matter for determination by the County Board of Education. However, in my opinion, whenever two or more schools are consolidated by the County Board of Education, in accordance with the provisions of Section 90, that the County School Superintendent "shall call an election of Trustees of said consolidated schools from the district or districts concerned."
The election thus called is required to be held in accordance with provisions of existing law, and the result determined and declared by the Board of Education.
When the schools are consolidated into one school which is located by the Board at the convenient place for the pupils attending the same, I think, it is clearly the intent of the law that an election shall be called in the district concerned and that all of the registered qualified voters residing in the district or districts concerned are entitled to participate in the election. The Trustees elected may be from either or both of the districts. In other words, persons in either of these districts would be qualified to act as Trustees of the consolidated school.
Of course, this whole matter would depend upon the Act of the Board of Education in effecting the consolidation. I do not have before me a copy of the resolution of the County Board consolidating the schools and of course cannot definitely advise as to the effect of such resolution.
What has been said above is based upon the presumption that the schools were legally consolidated with the provisions of the Section referred to.
EDUCATION-County Board of Education without authority to appoint trustees, but may be compelled to call an election
April ~7, 1933 Hon. M.D. Collins State School Superintendent Dear Mr. Collins:
Your letter of April ~7th requesting an opinion as to whether or not a County Board of Education has authority to appoint district school trustees, is acknowledged.

163
Accompanying your letter is an original letter from Hon. T. W. Burson, Representative of Barrow County, in which he states that the County Board of Education consolidated several school districts and after consolidation the Board appointed the trustees for the consolidated school.
Under the law governing the election of school trustees found in Code Section 1551 (128), it is provided that the Board of Education of the county may or may not order the citizens of the several school districts to hold an election for the purpose of electing trustees for each school district in the county. Qualifications of trustees are set out in the same section.
Under Code Section 1551 (96), when the Board of Education of any county consolidates two or more school districts, it is the duty of the County Superintendent to call an election for trustees for the said consolidated schools from the district or districts concerned. It is further provided in said Section that the election shall be held in accordance with the provisions of existing laws.
Under Code Section 1551 (98), the County Boards of Education have the power to separate or divide any school district into two or more school districts and to provide for the election of the Board of Trustees for each of said districts.
Under Code Section 1551 (99), where the County Boards of Education rearrange the school districts, they have the right to do so with the purpose of the election of the Board of Trustees.
I think it is the clear purpose and intent of the school laws of this State to require that all trustees shall be elected by the citizens and voters of their respective school districts. It has been held that where the County Boards of Education refuse to issue commissions to trustees elected, that mandamus will lie against them to compel them to issue the commission to persons duly elected trustees. Harold v. Williams, 154 Ga. 632; Bryant v. Board, 156 Ga. 688.
Where the County Boards of Education, as in this case, have appointed trustees, such trustees have been held to be de facto trustees. See Stevens v. School District, 154 Ga. 275.
Where the person whose duty it is to 'call such election fails and refuses to do so, mandamus will lie to compel such person to perform this duty.
I do not think there is any doubt whatever but that the law contemplates and requires that when schools are consolidated that an election shall be called for the purpose of electing trustees to serve the consolidated district.

164
EDUCATION-County Board of Education without authority to set up qualifications of a candidate for school trustee; but may adopt reasonable rules and regulations governing election
April 5, 1933 Hon. M.D. Collins State Superintendent of Schools My dear Mr. Collins:
Your letter of April 4th in which you ask two questions is acknowledged.
Question Ho. 1. "Does the County Board of Education have the right by law to set up the qualifications of a candidate for school trustee?"
.!lnswer. No. By the provisions of Code Section 1551 (128) (Section 120 of the School Code) the qualifications of trustees are fixed. This section provides that they shall be intelligent citizens of good moral character who are known to be earnest supporters of public education. It also provides that where such trustees have been elected, if the County Board of Education should consider any member or members unqualified, they shall refuse to confirm the election of such member or members and require the citizens to elect others.
If intelligent citizens of good moral character who are known to be earnest supporters of public education are duly elected trustees of a school district, the County Board of Education is not clothed with absolute discretion to approve the election and commission them. They have the power to refuse to confirm the election of such trustees only when the persons elected are unqualified for the work, that is, where they lack the qualifications prescribed for such trustees under this Section. In determining whether the persons elected possess these qualifications, the board is clothed with official discretion which will not be interfered with unless abused. See Bryant v. Board, 166 Ga. 688.
Should the County Board of Education refuse to commission persons duly elected trustees by improperly refusing to confirm the election, mandamus will lie against them to compel the performance of their official duty. See Bryant v. Board, 166 Ga. 688; and Harold v. Williams, 154 Ga. 632.
Qnestion Ho. 2. "Does the County Board of Education have the legal right to say on what date before the election the candidate for school trustee should announce his candidacy and with whom he should file his notice of candidacy?"
.!lnswer. The answer to this question depends in some measure upon the manner and method or previous custom adopted by the board. Under the provisions of the section quoted above, to wit, 1551 (128), the County Board of Education fixes the time, place and manner of holding elections for school trustees. I think they would have authority to adopt reasonable rules and regulations governing the election for school trustees provided these regulations do not conflict with the general law. If the County Board of Education should see fit to require candidates for school trustees to file

165
notice of their candidacy with the County Superintendent of Schools a certain number of days prior to the date of the election fixed by the board, and if in so doing they change an existing custom which has not theretofore been required, then general notice should be given of such rule throughout the several districts affected sufficient time before the election and before the date fixed for the qualification to enable prospective candidates to qualify within the time fixed.
In those counties that have the Australian Ballot system, should the County Board of Education see fit to adopt the rules provided by this system, then they would have to require that candidates for trustee file official notice of their candidacy with the Ordinary fifteen days before the date of the election. However, since County Boards of Education usually fix the date of an election for trustees and give ten days' notice, it is usually permissible for trustees to qualify at any time within the ten days and even up until on the morning of the day of the election. Where they require the candidates to qualify a stated number of days prior to the election, they should take into consideration this fact in giving the notice of the election, and where they change a custom, this fact should likewise be considered in fixing the date of the election in order to give to all candidates full knowledge of the rule adopted by the board so as to not take away from them their right to qualify in time.
EDUCATION-Illegal to employ teachers without certificates or licenses
March 17, 1933
Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
In reply to your letter of March lith enclosing copy of letter from Mr. A. N. Swain, I wish to advise as follows:
Mr. Swain wrote me further on March 13th going more fully into the details of the matter under advisement and giving additional facts as follows:
"A few days ago I asked the State School Superintendent for an opinion on a question of law. He has written me that he has submitted the question to you for an opinion. I desire to state to you a little more fully the details of the matter. The facts are as follows: "Last fall sometime, the County Board of Education formally passed on the election of a teacher for one of the County Schools. Said teacher did not have a teacher's certificate of any kind and has not yet submitted a cerificate. When she was told that the County School Superintendent does not have authority to employ a teacher without having a certificate, she replied that she thought the County Board of Education had that authority. "Before any payment was made to her, a teacher of an adjoining school district to the place where she teaches came in and made

166
an objection to my paying her on the ground that she had not complied with the law by submitting a certificate to the County School Superintendent. Later, his objection was withdrawn, but when the check was tendered, she refused it, saying that she would obtain the certificate and submit it before she accepted the check. I would like for her to have the check if it is not contrary to law, for I am sure that she is qualified to teach and that she will eventually get the certificate." You ask the question "Is it legal to employ in the public schools of Georgia a teacher who has not submitted a teacher's certificate or license?" In my opinion this question should be answered in the negative. The laws of this State set up a general system by which applicants to teach must possess certain qualifications or take an examination before the issuance of a teacher's license or certificate. This license or certificate is granted according to the qualifications required, etc. Under Section 1551 (94Y2) the County Boards are empowered to employ teachers and the contract of employment must be in writing. Orr v. Riley, 160 Ga. 480. Under Section 1551 (173) it is the duty of the County Superintendent of Schools to superintend examinations of all teachers in his county as provided by law. Under the provisions of the following section, (1551 (174)), County School Superintendents shall place on all teachers' licenses the seal of the Board of Education, and under Section 1551 (178) the examination for all applicants for licenses to teach is provided for. This section also provides for special examinations under certain circumstances and that the licenses issued at such examinations shall be valid only until the next regular examination ordered by the State Superintendent of Schools. Section 1551 (182) provides for the revocation of licenses, and provides that the revocation of the license of any teacher shall terminate the connection of said teacher with any school in which he may have been employed to teach. Section 1551 (183) provides the duties of teachers shall be as follows: ".;Jfter le~al qualification through license or certificate, etc." Code Section 1551 (181) provides for the grading of applicants and establishes licenses of the first, second and third grade and states that a license of the first grade shall continue in force for three years, a license for the second grade, for two years, and the third grade for one year, etc.
Therefore, it is the opinion of this Department that the County Boards of Education do not have the right to employ teachers who do not have either a teacher's certificate or license.
The second question is as follows: "If the above is held illegal, would a County School Superintendent be held liable under his bond in case he paid the salary of said teacher?"
I think that the answer to this question as stated should be no. However, under the facts in this case, where it has been made to

167

appear to the County Superintendent of Schools that the teacher does

not have a certificate or license, and this fact is known to the County

Superintendent of Schools before payment of any part of her salary,

I think it would be his duty to immediately inform the County

Board of Education of that fact. I further think that it would be

his duty under the law to withhold from the teacher in question the

check for her compensation until she gets the certificate.



Mr. Swain states that he is sure that she is qualified to teach and

that she will eventually get the certificate. I think that if the teacher

can establish the fact to the satisfaction of the Board that she is

qualified to teach, that in an emergency a special examination might

be given for the purpose of giving her an opportunity to establish

the fact of her qualification. In this way a special permit be given to

this teacher until the next regular examination after the date of her

employment, and until she gets the certificate. In the absence of the

establishment of the fact of her qualification as a teacher, and until

she obtains a license or certificate to teach which would authorize

her to teach in the schools of this State, it is my opinion that the

compensation should be withheld.

I feel sure that the County Board of Education can, with the

assistance of Mr. Swain, work out a solution to the particular ques-

tion involved, providing some method by which this teacher may

obtain a temporary license pending the emergency and until she can

get her certificate through the regular channel.

I am sending a copy of this letter to Mr. Swain in reply to his letter

of the 13th.

EDUCATION-When County Superintendent of Schools has not filed surety bond for new term of office, old bond still effective
January 30, 1933 Hon. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
I have your letter of January 27th requesting' an opinion as to whether or not it will be legal for the State Superintendent of Schools to forward public school funds to a County Superintendent of Schools who has not executed a surety bond for his new term of office, beginning January 1, 1933, pending the receipt of a new bond by your office.
Section 261 of the Civil Code of 1910, (Section 89-105, Code of 1933) provides:
"All officers of this State must reside therein, at such places as are designated by law, and discharge the duties of their offices until their successors are commissioned and qualified."
In City of Elberton v. Jones, 35 Ga. App. 536, it was held that the
effect of this Statute is to extend the term of office under the original election or appointment, until a successor has been elected or appointed, and has qualified, with the further effect that liability on the official bond of such officer continues, where an officer elected for

168
a fixed period thereafter holds over after its expiration, until his successor is elected and qualified.
Section 287 of the Civil Code of 1910 (Section 89-410, Code of 1933) provides as follows:
"No public officer required by law to give bond shall perform any official act before his bond is approved and filed as required." Section 275 of the Penal Code of 1910 (Section 89-9902, Code of 1933) provides as follows: "If any public officer, required by law to give bond, performs any official act before his bond is approved and filed as required, he is guilty of a misdemeanor." Under the decision of the Court of Appeals in the case cited, and under the express language of the Code, it is incumbent upon every public officer in this State to discharge the duties of his office until his successor is elected and qualified. Since his successor cannot enter upon the discharge of the duties of the office, where the giving of a bond is required, until such bond is executed and filed, the successor of any public officer in this State, required by law to give a bond, is not qualified within the meaning of Section 261 of the Civil Code until his official bond is executed, approved and filed. Accordingly, any County Superintendent of Schools whose term of office expired December 31, 1932, must continue to discharge the duties of that office until his successor receives his commission, takes the oath of office required, and executes the bond required of him by law. The surety on the bond of any such Superintendent of Schools whose term expired December 31, 1932, remains liable on such bond during the time such Superintendent may hold over pending the qualification of his successor in office. In my opinion, this is true whether the Superintendent whose term expired December 31, 1932, is succeeded by himself or by some other person. If he is succeeded by himself, he does not become qualified to enter upon the discharge of his duties under the new election, and under the new commission, until he gives the bond required by law and the same is approved and filed as required by law. Answering your specific inquiry, in my opinion, your Department may assume that a County School Superintendent whose term of office expired December 31, 1932, is still obligated on the bond executed for that term of office, and that the sureties thereon are likewise bound, during such time as the Superintendent may hold over pending the qualification of his successor. You would be authorized to forward school funds for 1933 to such Superintendent so holding over.

169
EDUCATION-No prohibition against County Superintendent of Schools being employed as a teacher where duties do not conflict
February 15, 1983 Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
The letter of :Mr. J. B. Driskell, Superintendent of Forsyth County Public Schools, of February 8th, asks the following question: "Would a County Superintendent of Schools, who is going out, be allowed to pay himself for the last two months of 1932 as Superintendent of Schools, and at the same time teach a two months' term in 1932 and pay himself for that too?"
You request this Department to furnish you an opinion answering the question of Mr. Driskell, and we wish to advise as follows:
The County Board of Education, together with the County School Superintendent, makes rules to govern the County Schools. The County Superintendent acts as Secretary of the Board and makes a permanent record of the minutes of their meeting. He is required to do any other clerical work that the Board may direct him to do. The County Board may suspend the County Superintendent and may suspend teachers. (See Section 1551 (94), Michie's Code, 1926.)
The qualifications of County Superintendents are outlined in Section 1551 (167) of the same Code.
County Superintendents must give bond with an approved surety company. (Section 1551 (168)).
By the provisions of Section 1551 (169), the County Superintendent of Schools receives a minimum salary of $450.00 per annum, and an annual allowance of $150.00 traveling expenses, etc., which amount is paid out of the School fund of the State monthly. In addition thereto, the County Board of Education should allow such additional compensation for the service to be rendered as may be in their judgment proper and just. Mandamus would lie to enforce payment of this salary. (See Maddox v. Board, 148 Ga. 577.)
Before entering the discharge of his official duties, the Superintendent subscribes the same oath required of other officials of this State. (Code Section 1551 (170)). The oath required is given in Code Section 269. The conditions of the bond are usually specified therein but must conform generally to the requirements of Section 291 of the Code, and the measure of damages on such bonds, unless otherwise provided by the bond, is fixed by Section 299 of the Code.
The general duties of the County Superintendent of Schools are outlined in Code Section 1551 (172). The Sections immediately following provide additional duties.
The County Superintendent of Schools, by virtue of his official position, is entitled to the salary incident to his office. See Maddox v. Board of Education, 148 Ga. 577, reference to page 580 of the opinion.
Generally the County Superintendent of Schools may be assigned such duties by the Boards of Education as they deem to be proper to the best interest of the schools in their respective counties. The

170
Board knows what the Superintendent is required to do, the extent of his services required, and may fix his salary, in addition to the $600.00 allowed to him by Code Section 1551 (169). When this salary is fixed, so long as the County Superintendent performs the duties of that office, he is entitled to such salary.
County Boards of Education are empowered to make all arrangements necessary to the effectual operation of the school. (See Code Section 1551 (89)).
County Boards are authorized to make their contracts in such manner that amounts payable to teachers for services due are due and payable monthly. (Code Section 1551 (101)).
The County Boards of Education shall have power, if they deem best, to employ teachers at a salary. (Code Section 1551 (178)).
The County Boards of Education are empowered to employ teachers to serve in the school under their jurisdiction. (Code Section 1551 (9472)).
This power is vested exclusively in the County Boards of Education and extends to the selection and employment of teachers in the local tax school districts, notwithstanding the fact that the trustees of such districts have the power to fix the salaries of the teachers employed therein. Such contracts must be in writing and the County Superintendent is without authority to authorize or ratify them. See Orr v. Riley, 160 Ga. 480; also Greene v. Snellville Consolidated School District, 169 Ga. 667.
Code Section 1551 (183) provides the duties of teachers. Since from the above cited authorities it clearly appears that it is not only in the power of, but it is the duty of the County Board of Education to fix the salary of the County Superintendent of Schools, and since this salary, when fixed by them is incident to the official position, it would not be illegal for the County Superintendent to pay himself such salary when approved by the County Board of Education. For any malfeasance in office the County Board might have suspended him, and in that event, of course, he would not be entitled to his salary. Keeping in mind the fact that the County Boards shall have the right to employ teachers and to provide for the payment of their salaries monthly, if the County Board, in the exercise of their judgment, should deem that the County Superintendent of Schools could perform the duties of a teacher without conflicting with his duties as County Superintendent, they might employ him as such teacher and provide for payment as such. In fact, they might take that fact into consideration at any time in fixing his salary as County Superintendent of Schools. There is no inhibition under the law which will prevent the County Board of Education from employing the County Superintendent of Schools as one of the teachers in the schools of the county. So long as his duties as teacher do not conflict with his duty as County Superintendent of Schools, the County Board may, in the exercise of their sound judgment and discretion, fix his salary as County Superintendent of Schools, and with that salary in mind, they may contract with him as teacher.

171
In the event that such contract is entered into, he would be entitled to his salaries, both as County Superintendent and as a teacher.
As to whether or not he would be entitled to pay himself as a teacher would depend upon the terms of the contract, and would also depend upon whether or not he was the proper person to pay the teachers in the district where he was teaching. We do not know what the facts are in regard to whose duty it was in the particular district in which he taught, to make payment to the teachers, and therefore we cannot say definitely as to his authority to pay himself. However, if, as stated above, he was hired and contracted with to teach, the fact that he was at the same time County Superintendent of Schools would not disqualify him as such teacher.
We return herewith Mr. Driskell's letter.
EDUCATION-County Superintendent of Schools required to give surety bond
November ~9, 1933
Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
Yours of the ~4th instant inclosing the letter of Mr. F. A. Sams, dated November ~1st, has been received.
You request an opinion as to whether or not the Act entitled "Account of Public Monies, Etc." as passed by the 1933 General Assembly, permits County School Superintendents to make personal bonds instead of surety bonds.
By the amendment to the School Code approved August ~6, 1925, as contained in Georgia Laws, 19~5, page ~50, it is provided:
"The County Superintendent of Schools must give bond with an approved surety company, payable to the County Board of Education, the amount to be decided by the Board. This bond must be filed with the Ordinary, and a copy recorded on the Ordinary's records; and it shall be the duty of said Ordinary to file a certified copy of said superintendent's bond to the State Superin~ tendent of Schools, which copy shall be recorded and kept on file at the State Department of Education." This amendment changed Section 150 of the Georgia School Code by striking the words "with good security (surety company preferred)" and substituting in lieu thereof the words "with an approved surety company." The Act of 1933 referred to in your letter, as contained in Georgia Laws 1933, pages 78 to 97 inclusive, was approved March 16, 1933. Section ~0 of this Act provided that "conflicting laws are repealed." Therefore, we must consider whether the Act of 1933 is in conflict with the above quoted provisions of the Act of 19~5, relative to the giving of a surety bond by the County School Superintendent; then the Act of 1925 is repealed by the Act of 1933 if this be true.

172
The Act of 1933 as above cited, in defining the persons to whom the same shall apply, contains the following language on page 80:
"The words 'officer to hold public funds' shall include not only the State Treasurer, County Treasurer, the State Superintendent of Schools, County School Superintendents, Treasurers of school districts, but also each and every other person . . . . " Thus, it is seen that County School Superintendents do come within the purview of the Act of 1933. Section 3 of the Act of 1933 as above cited, the relevant portions of which we quote, is as follows: "The state authorities shall require of all collecting officers and of officers to hold public money, so far as relates to monies or revenues of the State, to give, on or before entering on the duties of their offices, appointment, or. employment, bond with good security for the faithful performance of the duties of their offices and faithfully to account for all monies coming into their hands, together with such other conditions as the laws of this State may require as to the official bond of the particular officer in question." The words "bond with good security" are not in conflict with the requirement of the Act of 1925 which provides that the County School Superintendent "must give bond with an approved surety company." A bond with an approved surety company would be a "bond with good security." Also, we must attribute some meaning to the words of the Act of 1933, which are as follows: "Together with such other conditions as the laws of this State may require as to the official bond of the particular officer in question." It is my interpretation of this provision that if there is a particular kind of bond required of a given officer, then that provision of law must be complied with. Such is the case of a County School Superintendent as provided under the Act of 1925 above cited. It is my opinion that both the Act of 1925 and the Act of 1933 are general laws and neither, in relation to the other, offends the constitutional provision of our law as contained in Code Section 6391, Michie's Code of 1926, which provides as follows: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." A general law is defined in Corpus Juris, page 728, Section 318, under the title "Statutes", as "A law which affects all of the people of the State or persons or things of a particular class, although, as is hereinafter noted, the class must be legitimately constituted." As was said by Mr. Justice Little, in Sasser v. Johnson, 101 Ga. 447:
"To clothe a law with a general character, in contradistinction to a local character, it is not essential that it should affect every person, object or thing in the State, nor operate territorially throughout the entire limits and in all parts of the State . . . . Generic subjects may be divided and subdivided into as many classes as require this peculiar legislation . . . . as voters, sane and insane persons, minors, husbands and wives, parents and children

178
Nearly every matter of public concern is divisible, and division is necessary to methodical legislation . . . . It is undoubtedly within the power of the legislature, for the purpose of exercising its legislative authority over the subjects thereof, to classify ad infinitum, and legislate with respect to each classification, without entering the realm of local legislation, with these limitations, however, viz.: The classification must be natural, not arbitrary; it must stand upon some reason, having regard to the character of legislation of which it is a feature. The other limitation is that the law must be coextensive with and operate uniformly upon the entire class to which it is applicable." By reference to the laws in question, it is seen that they operate uniformly as to the class which they concern, viz., County School Superintendents. This is a reasonable classification and not arbitrary. See Family Finance Co. v. Allman, 174 Ga. 472, 473. It is clear in my mind that the Act of 1933 did not intend to repeal the Act of 1925 relative to the giving of a surety bond by a County School Superintendent. In the case of Gray v. McLendon, 134 Ga. 229, the court in its opinion, cited with approval this language as contained in the case of Winslow v. Marton, 118 N.C. 486, as follows: "(1) That the law does not favor a repeal of an older statute by a later one by mere implication. (2) The implication, in order to be operative, must be necessary; and if it arises out of repugnancy between the two acts, the later abrogates the older only to the extent that it is inconsistent and irreconcilable with it. A later and an older statute will, if it is possible and reasonable to do so, be always construed together, so as to give effect not only to the distinct parts or provisions of the latter, not inconsistent with the new law, but to give effect to the older law as a whole, subject only to restrictions or modifications of its meaning, when such seems to have been the legislative purpose . . . . Repeals by implication are not favored. This means that it is the duty of the court to so construe the acts, if possible, that both shall be operative." The two provisions of the respective laws in question are not repugnant to each other, not in conflict, and the older is, therefore, not repealed either by implication or otherwise. I am returning herewith the letter of Mr. Sams.
EDUCATION-Member of County Board of Education may serve as member of General Assembly
May 31,1934 Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
I have yours of the 28th instant requesting an opinion as to wheth er or not a person holding the office of County Superintendent of schools is eligible to serve as a member of the General Assembly, or to hold any other State office.

174
The answer to this question involves a construction of Article S, Section 4, Paragraph 7 (Code Section 6420) (Section 2-1507, Code of 1933) of our Constitution, which is as follows:
"No person holding a military commission, or other appointment or office having any emolument or compensation annexed thereto, under this State, or the United States, or either of them, except justices of the peace and officers of the militia, nor any defaulter for public money or for any legal taxes required of him, shall have a seat in either house . . . . " While it has been held by our Supreme Court that a County School Superintendent is a county officer (Culbreth v. Cannady, 168 Ga. 444) nevertheless such an officer does receive an emolument from the State of Georgia under the provisions of Georgia Laws 1911, p. 103, Section 15. Under this section, every County School Superintendent within the State of Georgia receives a minimum salary of $450.00 per year and an annual allowance of $150.00 for travelling expenses, which sums are paid out of the school funds of Georgia monthly. Therefore, a County School Superintendent receives an emolument under this State, within the meaning of Code Section 6420, which would render him ineligible for a seat in either house. I think this fact distinguishes this case from that of McWilliams v. Neal, 130 Ga. 733, in which the question was as to the eligibility of a member of the Board of Education of Henry County to membership in the General Assembly. It was held in that case: "Where ineligibility to the second office results from the holding of a prior office, then the result is that the election to the second office is void, and his right to hold the other remains unaffected." The case of Rainey v. Taylor, 166 Ga. 476, merely held that the Judge of the Superior Court did not have jurisdiction to hold, in quo warranto proceedings, that a member of the General Assembly of Georgia, who had been elected to that position and who had been sworn in as a member, was ineligible or disqualified from membership in that body, on account of being the duly elected and acting Superintendent of Schools for the County of Marion. The court based its decision upon Paragraph I, Section 7 of Article 3 (Civil Code 6430; Section 2-1801, Code of 1933) of our Constitution, which declares that: "Every house shall be the judge of the election, returns, and qualifications of its members, . . . . " As to the ineligibility of a County Superintendent of Schools to hold any other State office, this would be determined by Civil Code Section 6420, and would depend upon whether such a State office had any emolument or compensation annexed thereto.

175
EDUCATION-Trustees of local school district authorized to pay transportation of students to adjoining district to accredited high school
September 16,1933 Hon. M. D.Collins State Superintendent of Schools Dear Mr. Collins:
Yours of the 12th instant, enclosing the letter of Mr. L. 0. McClinton of Chickamauga, Georgia, in which he asks for an opinion as to whether the trustees of a local school district have the authority to pay for the transportation of students of one district to an adjoining district where they may receive the advantage of an accredited high school, has been duly received.
We shall also answer the question as to whether such an expenditure would be a misappropriation of funds, and whether the Board of Trustees, or the members thereof, would be personally responsible, and whether an injunction could be sued out to restrain such expenditures.
Practically all of these same questions were answered in an opinion furnished you by this office under date of April 22, 1933, from which we quote:
"Where the schools and school districts maintain their identity, and for the purposes of local taxation function separately, but for local purposes arrange with another school to take care of the pupils from one of those districts, and thereby offer the advantage of a better school to those pupils thus transported, the matter should first be submitted to the County Board. With the approval of such board, an arrangement may be worked out that would be legal. "In those districts which levy a local tax for school purposes, the boards of trustees make all rules and regulations for the government of the schools of their district; they may fix a rate of tuition of non-resident pupils, fix the salaries of their teachers, receive their part of the public school funds, and determine the amount necessary to be raised by local taxation. "See Code Section 1551 (141); Also, the case of Baggerly v. Bainbridge State Bank, 160 Ga. 556." By an amendment approved August, 1927, (Acts 1927, p. 174), trustees of Local School Districts were given the right to provide transportation for the pupils of their districts when they deem it for the best interest of the school. The amendment above referred to is as follows: "An Act to amend an Act approved August 18, 1919, entitled 'An Act to codify the school laws of Georgia', in Section 93 thereof, by authorizing local boards of trustees to provide transportation for schools, and for other purposes. "Sec. 1. Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, that 'An Act to codify the school laws of Georgia', approved August 18, 1919, and commonly known as the Georgia School Code, be and the

176
same is hereby amended in Section 93 thereof by adding in the second line of said section, immediately after the words 'county board of education', the following words, 'or local district trustees'; so that when amended said section shall read as follows: 'Whenever the County Board of Education or Local District Trustees deem it for the best interest of the school, they shall have the right to provide means for the transportation of the pupils and teachers to and from said school."' Until this amendment was passed, it is our opinion that permission for such an expenditure as the transportation of pupils from one school district to another would have had to be obtained from the county board of education, in order to make said expenditure valid or legal. However, under this amendment, it is clear that such authority is given to the local trustees, and it is our opinion that unless there was an abuse of discretion in this respect, they would not be liable for any expenditures made under the powers given them under this amendment. See Fitzpatrick et al v. Johnson et al., 174 Ga. 746. From the opinion given above, it naturally follows that we do not think an injunction would lie to restrain the board of trustees in making expenditures under the powers given them by the above stated amendment, so long as there was no abuse of these powers. As stated in our letter of April 22nd, this situation is rather unusual, in that it is customary, when such a state of affairs arises, for the two districts to be consolidated by the county board of education, if such a plan is feasible.
EDUCATION-Law prohibiting school trustee, teacher or Superintendent of county schools being financially interested in transportation of pupils not repealed
October 2, 1933 Hon. M.D. Collins State Superintendent of Schools Dear Mr. Collins:
Yours of the 28th instant received. You ask whether there has been a repeal of that part of Georgia Laws of 1911, Section 20, page 106, which reads as follows:
"No school trustee, teacher or Superintendent of county schools shall be financially interested in the transportation of pupils"; this part of Section 20 having been omitted from the School Code as enacted in 1919, and which took effect January 1, 1920. Upon authority of the case of Orr v. Riley, 160 Ga. 480, it is my opinion that this law has not been repealed. In this case, it was stated: "Contracts between County boards of education and teachers in the schools under their supervision must be in writing. The omission from the Code of 1910 of Section 1360 of the Code of 1895, which was a codification of the Act of 1872, which pro-

177
vides that 'The county boards of education are also empowered to employ teachers to serve in the schools under their jurisdiction, and the contracts for said service shall be in writing', and the omission of said act and section of the Code of 1895 from the Code of School Laws, did not repeal such omitted act and section, there being nothing in the Code of 1910 or the Code of School Laws at variance with said omitted act or section." Section 184 of the Georgia School Law as contained in Georgia Laws, 1919, reads as follows: "Be it further enacted that the provisions of this Act are substituted for the existing school laws of this State, and all the existing laws of this State, and all laws or parts of laws in conflict herewith are hereby repealed." Since the section omitted from the laws as approved by the Legislature, August 1919, are not in conflict with any of the provisions of the School Code of 1911, then it is my opinion that said section has not been repealed by any subsequent Acts.

EDUCATION-Discipline of children on school bus; fees charged for hauling children outside of district

Hon. M.D. Collins

March 28, 1938

State Superintendent of Schools

Dear Mr. Collins:

Your letter of the 21'Jth inclosing copy of letter from Mr. Mitt

Pelham of Pelham, Georgia, is acknowledged.

In your letter you ask four questions, and I will answer them separately.

1. Is the driver of a school bus permitted to put a child off the

bus for misbehavior?

Under Code Section 1551(94) the county board of education,

together with the county school superintendent, shall make all rules

to govern county schools of their respective counties. This in-

cludes such rules and regulations as might be deemed expedient to

insure safe and efficient tramsportation. 'Where the county board

of education furnishes the transportation, they have the authority

to make such rules and regulations as they deem advisable for the

best interest of the school and have a right to demand the observance

of them by the truck driver and the pupils. They have the right to

enforce the observance of these rules in such manner as is reasonable

and if the pupils should insist on misbehaving and violating the rules,

the board would have the authority to refuse to permit such pupils the privilege of transportation. If the county board should con-

tract with truck drivers for the transportation of pupils, they would

still have the right to fix all rules and regulations governing a truck driver and the pupils.

2. Is a bus driver permitted to charge a fee for hauling children outside of the school district? If so, how much?

178
If the bus driver has been contracted with to transport pupils within the school district, in the absence of an agreement with the county board to the contrary, he is not required to haul children outside of the district. Should he have sufficient room to bring in children outside of the district, it would be necessary for the driver to get the permission of the local school authorities or the county superintendent of schools or county board of education before he would be authorized to transport children outside of the district to another school. With this permission and consent, if the contract is confined to children in the school district alone, so long as it does not interfere with his contractual duties as to room for such pupils, etc., he would be permitted to enter into contract with the parents outside of the district for the transportation of their children. If the county board is paying for the transportation, hiring the bus driver, etc., and has pupils who reside outside of the district for which it has made no provisions of transportation, and where there is need of transportation, the county board of education or the local board of trustees, as the case might be, should make the necessary arrangements, rules and regulations governing the charge of fees for transportation.
3. Is a consolidated school allowed to charge tuition fee? No. Code Section 1551 (118) provides that admission to all common schools shall be gratuitous to all children between the ages of six and eighteen years, residing in the districts in which the schools are located. The Constitution of Georgia also provides (Section 6576 of the Code):
''There shall be a thorough system of common schools for the education of children, as nearly uniform as practicable, the expenses of which shall be provided for by taxation or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races." By the amendment of 1911, page 46, the above section of the Constitution was amended by striking therefrom the language "In the elementary branches of an English education only", and since this provision of the Constitution has been stricken, free schools have been extended and the section no longer applies to the elementary branches of an English education only.
A child residing in a school district cannot be charged a fee for matriculation. Gainesville v. Simmons, 96 Ga. 477, and 99 Ga. 400; Brewer v. Ray, 149 Ga. 596, 599.
It is to be noted that the above provisions apply to pupils residing in the district. If there is no school within the reach of pupils residing in certain districts and they are within reach of a school within another school district, either in walking distance or by resorting to transportation lines furnished by the county board, then it would be the duty of the county board of education to provide transportation for such pupils to either the school within the district or to designate a school in an adjoining district and provide for the transportation if the school is located beyond the reach of the child or children so affected, by walking.

179
4. If a school runs six months free, is the board permitted to charge tuition for the remaining months of school?
This would depend upon the available funds for operating the school. If all of the available funds including the State appropriation, equalizing fund, county-wide taxes, local school taxes, BarrettRogers aid, and other funds for the operation of the schools are sufficient to operate the school only for a period of six months, then the six months period would be the public school term. If the school authorities should decide to operate the school longer by public subscription, fees, or tuition, the extended term would not be a part of the public school term but would in effect be a private school term, and the board would have the right to fix such charge as would be reasonable for the operation of that term.
This would not be permitted under the law unless and until the public school fund from all of the sources has been used to operate the free school as long as the funds were sufficient to do so, and only when said funds have been so used would the school authorities be authorized to make arrangements by public subscription or private fees or tuition to operate additional months.
The matters referred to in 1\fr. Palmer's letter are ones which should be worked out by the local board of trustees in connection with the county superintendent of schools and county board of education of that county, and under your direction as State Superintendent of Schools. The school laws should be so administered as not to discriminate against any pupil in the county.

EDUCATION-Boards of education cannot charge tuition or matriculation fees, as it is violative of the Constitution

June 9, 1988

Hon. M.D. Collins

State Superintendent of Schools

Dear Mr. Collins:

.

Your letter of June 9th inclosing an original letter from Mrs. James

E. Mundy of Jefferson, Georgia, relating to the charge of an inci-

dental fee in the public school of Jefferson, is acknowledged.

You request that we give you a thorough construction of this

matter and state that you have frequent inquiries concerning the

charging of incidental, tuition or matriculation fees, etc.

On March ~8, 1933, I wrote you a letter with reference to this

matter in connection with an inquiry received by you from Mr. Mitt

Pelham of Pelham, Georgia.

Question Number Three in that letter was as follows:

"Is a consolidated school allowed to charge tuition fees?"

The answer to that question was as follows:

"No. Code Section 1551(118) provides that admission to all com-

mon schools shall be gratuitous to all children between the ages of

six and eighteen years, residing in the districts in which the schools

are located. The Constitution of Georgia also provides (Section

6576 of the Code):

180
"'There shall be a thorough system of common schools for the education of children, as nearly uniform as practicable, the expenses of which shall be provided for by taxation or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races.' "By the amendment of 1911, page 46, the above section of the Constitution was amended by striking therefrom the language '"In the elementary branches of an English education only', and since this provision of the Constitution has been stricken, free schools have been extended and the section no longer applies to the elementary branches of an English education only. "A child residing in a school district cannot be charged a fee for matriculation. Gainesville v. Simmons, 96 Ga. 477, and 99 Ga. 400; Brewer v. Ray, 149 Ga. 596, 599. "It is to be noted that the above provisions apply to pupils residing in the district. If there is no school within the reach of pupils residing in certain districts and they are within reach of a school within another school district, either in walking distance or by resorting to transportation lines furnished by the county board, then it would be the duty of the county board of education to provide transportation for such pupils to either the school within the district or to designate a school in an adjoining district and provide for the transportation if the school is located beyond the reach of the child or children so affected, by walking." Supplementing this letter, I refer you to the case of Claxton et al., Trustees, v. Stanford et al., 160 Ga. 752. The first headnote of this case quotes the above provision of the Constitution, and in the second headnote the Court held: "A charge for matriculation cannot be imposed as a condition precedent to admission to a public school forming a part of such general system, of a child living in the territory of the school and otherwise qualified." In the fourth headnote it was held that if the children whose parents were resident citizens and taxpayers of a local school district were refused admission to a public school without the prepayment of matriculation fees, a mandamus would lie against the trustees in order to require them to admit such pupils to the school without prepayment of such matriculation fees.
This holding was applied in this particular instance even though there was an agreement that said school should be operated for an additional two months as a private school in order to meet the requirements for accredited relations. The agreement was between the trustees and the teachers and provided that the school might be operated solely on the matriculation fees collected from the pupils, including the salaries of the teachers and incidental expenses, and that the school should not be operated under the jurisdiction of the trustees and that they have nothing whatever to do with the operation of said school. The Court below decided that the school was a public school and made the mandamus absolute. This judgment was affirmed. However, there were two dissenting Justices, namely

181
Justices Hill and Gilbert, who held that whether or not this was a public school was an issue which should have been determined by the jury.
You are further directed to the case of Brinson et al v. Jackson, 168 Ga. 353, in which it was held that the system of education provided for in the above constitutional provision embraces high schools operated by funds whether derived from taxation or otherwise and no matriculation fee can be charged children within the school age.
This case further lays down the proposition that a consolidated public school or high school established and maintained in part by the funds provided by the Act of August 18, 1919, is a common school of the State, admission to which must be free, and that where the trustees accept the benefits of such funds they are estopped from denying that such school is subject to the constitutional provision making common schools free to the children of the State.
The next case to be called to your attention is the case of Moore et al. v. Brinson, 170 Ga. 686, in which all of the Justices of the Supreme Court concur in holding that a charge for matriculation cannot be imposed as a condition precedent to admission to a public school forming a part of the public school system of the State, on children living in the district.
In this case the court went further and said that a public school is not a free school within the meaning of the above provision of the Constitution where the children of parents who do not pay these fees are not permitted to enjoy the same educational benefits which the children of parents who pay such fees receive and enjoy. On page 686 it was said that the placing of children of parents who do not pay the matriculation fees in a separate room which the trustees denominate the free school department of the institution, and furnishing them with a first grade teacher only, is a discrimination since it is clear that these children do not receive the same and equal benefits which the pay children get in the school. It was said:
"The school is not free to the non-pay pupils. Their privileges are circumscribed. Their opportunities are not equal. They are placed in a position of more or less humiliation." In concluding the opinion Judge Hines said: "A public school which makes a discrimination between children of parents who pay matriculation fees and the children of parents who do not pay such fees, violates the above provision of the Constitution that the public schools shall be free to all children of this State." I think the last quoted statement specifically answers the question of Mrs. James E. Mundy. I do not think that the Board of Education in charge of the operation of any public school in this State has authority to authorize the superintendents or teachers to refuse to give promotions or credit for the work done by pupils because the incidental fees and tuition have not been paid.

182
EDUCATION-Authority of County Board of Education to contract with adjoining County Board of Education regarding county line pupils
June 18, 1988
Hon. M. D. Collins State Superintendent of Schools
Dear Dr. Collins: Your letter of June 1~th is received. You request an opinion as to whether or not, where pupils reside in
one county and attend school in another, the county board of the county in which they reside is required to pay tuition to the county in which they attend school, and if so, whether the amount to be paid is fixed by the Board of the county in which the pupils reside or by the Board of the county in which they attend school.
The School Code of Georgia provides, by Section 1551(119) of Michie's Code of 199l6, as follows:
"In special cases to meet the demand of convenience, children residing in one sub-district may, by express permission of the county Board, attend the common school of another sub-district, and when a common school is located near a county line, children from an adjoining county shall be permitted to attend the school; provided, such children reside near such school or said school is more accessible to the residence of such children than any public school in the county of their residence. In such cases the teachers shall report separately the pupils from each county, but make the reports to the superintendent of the county in which the school is located, and with which superintendent the teacher shall contract and from whom she shall receive her pay; but such superintendent shall report to the superintendent of the other county, and shall be reimbursed by him for the proportionate amounts paid for maintenance of said school in the ratio of the attendance from the other county to the whole attendance. Arrangement for attendance upon county lines schools is under the authority and direction of the superintendents concerned representing their respective Boards and provisions shall be made for such children just as for others."
It will be noted that under the concluding sentence of this section, it is provided that arrangement for attendance upon county line schools is under the authority and direction of the superintendents representing the respective Boards of Education.
In my opinion, therefore, the entire matter is one of agreement between the Boards of Education of the respective counties. The law simply requires the county in which the pupils reside to reimburse the county in which the school is located for the proportionate amount of the cost of maintaining the school in the ratio of the attendance from the county in which the pupils reside. The amount to be paid is not, therefore, a matter of tuition but is a matter of calculation and dependent upon the total cost of operating the school. I do not think, however, that a county in which a school is located

ISS
is authorized to receive pupils from another county and require the county board of the other county to so reimburse the first county unless a previous agreement is entered upon by the two boards through their superintendents.
EDUCATION-Vacancies in county offices, how filled
Hon. M. D. Collins State Superintendent of Schools Dear Mr. Collins:
In reply to your request that I give you an opinion construing the Act of 1933 which provides for the calling of a special election where the person elected to a county office at the General Election has been declared ineligible, I wish to advise as follows:
The Act of 1933 simply provides that whenever any person is elected to any county office in this state, and qualifies by giving bond, taking the oath of office and receiving his commission, and is thereafter declared ineligible to hold such office, it shall be the duty of the officer who is required by law to call a special election in the event of a vacancy in such office, and in the event there is no person charged with the duty of calling such special election for the particular office, then it shall be the duty of the Clerk of the Superior Court of the County, to call the special election for the purpose of electing a successor to fill the remainder of the unexpired term for which such person so declared ineligible to hold office was elected. (See Acts 1933, p. 130).
Prior to the enactment of the above provisions of law, the courts had held that holding over prevents a vacancy, and where a person who had been elected was declared to be ineligible the old officer simply held over on the theory that there had been no duly qualified successor elected. Since the holding over prevented a vacancy, no special election could be called. The result was that the old officer held over for another term and the person who was the choice of the people was denied the right to hold the office.
It was the intention of the General Assembly to take care of such a situation and simply provide that in such case, a special election was to be called just as if a vacancy in the office had arisen. The Act does not now say that it shall be called a vacancy, but simply says that a special election shall be called to fill the remainder of the unexpired term to which such person so declared ineligible to hold office was elected. The provisions of the Act apply only under the state of facts described therein, to wit: only where the elected person has been declared ineligible to hold the office to which he had been elected.
This Act was approved on February 23, 1933, and according to its provisions it became effective on that date. Now, it appears that the Judge of the Superior Court entered his order finding that the person in this case who had been elected to the office of County

184
Superintendent of Schools was ineligible to hold that office. This order and judgment was entered on February 23, 1933. On that date the provisions of the Act of 1933 went into effect, and were in effect on that date, and they were in effect at the time this judgment of the Superior Court was affirmed by the Supreme Court. In other words, at a time when the conditions described in the Act were fulfilled, the Act was in full force and effect. It is not retroactive; it simply applies in this case because at the time that the court declared that the person who had been elected was ineligible to hold the office, the law in force required that an election be called to fill the remainder of the unexpired term.
Therefore, I am of the opinion that the provisions of this Act will apply in the case in question, and that a special election should be called for the purpose of electing a person to fill the remainder of the unexpired term of the officer who has been declared ineligible to hold the office.
I am of the opinion that the Act of 1933 does not repeal Section 1551 (166) which provides for the filling of vacancies in the office of County Superintendent of Schools by the County Board of Education. This law is still of force and applies in the event of a vacancy. The provisions of the Act of 1933 apply only under the conditions stated in the Act. The Act of 1933 does not apply to the filling of vacancies generally, but simply provides a method of submitting to the people the choice of another officer where the one elected has been declared ineli~ible to hold the office.
It is provided that where there is no person charged with the duty of calling a special election to fill the particular office involved, then it shall be the duty of the Clerk of the Superior Court to call the election. Since there was no provision for calling a special election to fill the office of County Superintendent of Schools, then, in this particular case, the Clerk of the Superior Court should call the election.
The election to be called is a special election and the law governing special elections will apply. The voters who are qualified to vote and participate in such election are those who were on the last general election list who have not been subsequently disqualified. In addition to the above list, those whose names are on a special list as provided by Section 61 of Michie's Code are likewise eligible to vote.
ENTOMOLOGY-Veterans holding disability certificates subject to $5.00 license fee required of persons selling plants in this State.
June 6, 1933 Hon. M.S. Yeomans State Entomologist Dear Sir:
Your letter of the 5th requesting advice as to whether or not a person selling either nursery stock or sweet potato plants in this State, who is the holder of a World War Veteran's disability certificate, is,

185
under such certificate, exempt from paying the $5.00 license fee required of persons selling plants in this State, is acknowledged.
Under Code Section 1888, Michie's Code of 1910 (Sec. 84-2011, Code of 1933) disabled or indigent veterans are exempt from the payment of peddler's license of specific occupation or business licenses. Such disabled veterans are not permitted to engage in the peddling of certain specific articles mentioned in said section and neither are they exempt from the payment of certain business licenses and occupation taxes specified in said section.
Under the provisions of the General Tax Act there are also certain occupation taxes from which disabled veterans are not exempt. Some of the Paragraphs of the General Tax Act carry the provision that no person or persons shall be exempt from the payment of license tax imposed in those particular paragraphs.
Under the provisions of Section 1754(66) of the Code it is unlawful for persons to engage in or carry on the business of selling, dealing in, or importing into this State for sale or distribution, any nursery stock, etc., without first obtaining from the Board of Entomology a license to do so. This license is obtained by the filing of an application with references and after the same has been approved by the Board. The annual license fee for nursery stock is fixed at $5.00 and the fee for agents and solicitors is fixed at $1.00. The licenses are issued in the name of the person, firm, or corporation applying.
By the provisions of Section 1754(76) nursery stock is defined to include all field grown florist stock, fruit, nut and ornamental trees, shrubs, vines, cuttings, grafts, scions, buds, fruit pits, and other seeds of fruit and ornamental trees, when used for planting purposes, and shrubs and other plant products for propogation, except field, vegetable and flower seeds.
The above provisions were taken from the Code Sections referred to, which were a codification of the Act of 1922, beginning on page 136. From the caption of this Act it was clearly the intent of the Legislature to impose the registration or license fee referred to for the purpose of defraying the expenses of regulating the business of dealers in nursery stock and primarily for the benefit of the public. Such regulation on the part of the Legislature falls within the proper exercise of the police power of the State and will result in benefit to the public generally.
In my opinion, this is a regulatory measure having for its purpose the prevention of fraud and deception in the sale of fruit, nut, shade or ornamental trees, vines, shrubs, plants, etc. This purpose is expressed in the caption of the Act.
By the provisions of Section 2120 (Sec. 5-703, et. seq. Code of 1933) et. seq. of the Code, the Board of Entomology and the State Entomologist were given the power to enact such rules and regulations governing the inspection, certification, sale, transportation, and introduction, trees, shrubs, cuttings, shoots, vines, bulbs, and roots that they may deem necessary to prevent the introduction, increase and dissemination of insect pests and plant diseases.

186
By the provisions of the Act of 1931, page 41, the State Board of Entomology was abolished and all their powers, duties, and functions are transferred to and made encumbent upon the State Entomologist.
I think it is clear from the provisions of the Act itself that the fees imposed are required as a registration fee and are not properly to be classified as taxes.
Disabled and indigent veterans are exempt by the specific provisions of the section above referred to from the payment of taxes.
It has been held that taxes are the life-blood of the State and that "taxation is the rule and exemption is the exception" and that, therefore, statutes exempting the payment of taxes should be strictly construed in favor of the State or government.
In my opinion a strict construction of the Statute which exempts disabled veterans from the payment of certain license and business or occupation taxes would not be by the courts extended to apply to disabled veterans who are engaged in the business of dealing in nursery stock or sweet potato plants.
The very nature of the business requires that they be regulated, inspected, and that they come within the provisions of the regulatory measure in order to prevent the introduction, increase or dissemination of insect pests and plant diseases. The welfare of the public is at stake.
It was held in the case of Campbell v. City of Thomasville, 6 Ga. App. 2N, that indigent Confederate veterans, although they were exempt from the payment of municipal license fees imposed upon certain businesses conducted by them, were not exempt from the operation of such reasonable regulations as the municipality saw fit to impose upon those engaged in such business. Judge Powell, speaking for the Court of Appeals, on page 237, said:
"The writer, and, indeed, all the judges of this court, have the highest love and veneration for those veterans who served the State so unselfishly in perilous days gone by, and we have no desire to take away from them any exemptions or to limit any privilege extended to them by the laws of the State, but with all our love for them we must recognize that they are nevertheless subject to the laws and regulations enacted and adopted to preserve the health, peace, good order, and safety of the State and the various communities thereof." Therefore, regardless of my feeling toward the disabled soldiers, I am compelled to hold that they are subject to the regulations enacted and adopted to prevent the introduction, increase and dissemination of insect pests and plant diseases and, therefore, under my construction of the law they are not exempt from the payment of the regulatory or registration fee required of those who engage in the business of dealing in nursery stock, sweet potato plants, etc.

187
ENTOMOLOGY-Disabled veterans subject to license fee required of nurserymen August 21, 1988
Hon. M. S. Yeomans State Entomologist
Dear Mr. Yeomans: I have your letter of August 18th, requesting an opinion as to
whether or not a World War Veteran holding a certificate of disability is exempt from the payment of the $5.00 license fee required of all nurserymen doing business in this State.
The Act of 19~2 regulating the business of nurserymen, tree surgeons, landscape architects, etc., is a regulatory measure and not a tax law. It is provided that no license may be issued unless the nurseryman has an official certificate of inspection issued by the State Entomologist, as required by Section 2130 of the Civil Code, and nurserymen are required to obtain a license from the State Entomologist before engaging in the business.
Section 1888 of the Civil Code (Sec. 84-2011, Code of 1933) exempts certain soldiers therein enumerated from license taxes and provides that they may peddle or conduct business "without paying license for the privilege of so doing." This Section has been variously amended, the last amendment being in 1919, prior to the passage of the nurserymen's Act of 1922.
Since the nurserymen's Act of 1922 is a regulatory measure and not a revenue measure, it is my opinion that the exemption provided for by Section 1888 of the Code does not apply to the license fee required to be paid by nurserymen. This is especially true, in view of the fact that the Act of 1922 requiring nurserymen to pay this fee was enacted after the adoption of the Code of 1910, and after the passage of the Act of 1919 amending the exemption section..
The fact that under the law, these fees are required to be paid into the State Treasury and may not be used by the State Entomologist does not require a contrary holding. The Department of Entomology is supported by appropriations from the State Treasury, and the fact that the fees are paid into the Treasury would not defeat the evident purpose of the General Assembly to use them to enforce the regulatory provisions of the Act of 1922.
ENTOMOLOGY: College of Agriculture subject to nurserymen's license fee, but Georgia Forest Service not subject
August 26, 1988
Hon. M. S. Yeomans State Entomologist
Dear Mr. Yeomans: I have your letter of August 24th requesting that I advise you
whether the nursery of the College of Agriculture is exempt from the $5.00 license fee required of all nurserymen doing business in this State. You also request that I advise you whether the Georgia

188
Forest Service, which is operating a pine seedling nursery, is exempt from the payment of the license fee referred to.
With reference to the Georgia Forest Service I do not think that pine seedlings come within the definition of nursery stock provided by the Georgia law as contained in sub-section c of Section 1754(76) of Michie's Code of 1926. The term "nursery stock" seems to me to be limited to fruit, nut and ornamental trees, etc., but not to include ordinary forest trees. Even, however, if the term "nursery stock" as used by the Act could be said to include pine seedlings, under the facts narrated in your letter I do not think the Georgia Forest Service, which is engaged in growing these seedlings for reforestation purposes and for sale to farmers at the actual cost of production for reforestation purposes only could be said to be carrying on the business of selling or dealing in nursery stock within the meaning of the law. Accordingly, it is my opinion that the Georgia Forest Service should not be required to pay the license fee.
With reference to the College of Agriculture it is my opinion that it is not exempt from the provisions of the Act of 1922 referred to. As I understand your letter the College of Agriculture is engaged in producing and selling nursery stock as defined by the Act. This being true, it must comply with the regulatory provisions of the Act of 1922. I recognize the general rule that a tax levied against an agency of the State is in effect a tax levied upon the State itself and that on grounds of public policy an Act should never be construed to have such effect. However, the Nursery Act of 1922 is not a revenue measure but a regulatory measure designed to protect the public against the spread of diseases and against fraudulent practices, by nurserymen and persons engaged in tree surgery, etc. If an agency of the State desires to engage, under authority of the State, in a business which the State has regulated, it is my opinion that it should be required to comply with the regulatory measure. While an agency of the State as such would not be subject to prosecution for violating a regulatory measure, the individual officials or employees of such agency might be subject to prosecution.
In my opinion the College of Agriculture should be required to comply with this Act. However, as stated above I do not think the Georgia Forest Service is engaged in a business which the Act was designed to regulate . . . .
-----
CORPORATIONS: Foreign corporations may acquire no more than 5,000 acres of land in State except under specified conditions
November 8, 1934 Hon. B. M. Lufburrow State Forester Dear Mr. Lufburrow:
Your letter of October 30th addressed to Honorable John T. Goree, Assistant Attorney General, in which you state that you were advised a few days ago that no foreign corporation could acquire more than five thousand acres of land in Georgia, has been referred to me for attention.

189
By an Act approved February 28th, 1877, entitled "An Act to prescribe the conditions on which the State will assent to the holding of lands in this State by foreign corporations or corporations incorporated by the laws of other States", it was provided:
"Any foreign corporation, or any corporation incorporated by the laws of any other state, or claiming to own lands in Georgia, in quantities amounting to as much as five thousand acres, shall be incorporated by the laws of Georgia, within twelve months after the passage of this Act, and on their failing to do so, the State of Georgia will not consent to the said corporation owning the said lands, so located in her territory. Any foreign corporation, or corporation hereafter incorporated by the laws of other states, who shall claim to own lands in the State of Georgia in quantities amounting to five thousand acres or upward, shall become incorporated by the laws of Georgia, and in default thereof, Georgia will not consent that said foreign corporation, or corporations incorporated by the laws of any other State, shall own said lands in her territory. And no foreign corporation, or corporation incorporated by the laws of another state, shall own more than five thousand acres of land, except upon the conditions aforesaid of becoming a corporation under the laws of Georgia." (Georgia Laws 1877, p. 36. Civil Code Sec. 2206). (Sec. 22-1504, Code of 1933).
This Act of 1877 was codified in the Code of 1882 as Section 1675A. By an Act Approved December 18, 1893, Section 1675A of the Code of 1882, was amended by the addition of the following provisos: "This section shall not apply to any foreign corporation or any corporation incorporated by the laws of any other state, engaged in the business of lending money on real estate securities, nor to any such corporation which holding a lien upon real estate to secure the payment of any debt, when said corporation in order to prevent loss, is compelled to become the purchaser of lands covered by it on a mortgage to secure a loan; and provided further, that the provisions of this law shall not apply to any foreign corporation which loans money in this State at a greater rate of interest than 8% per annum, which 8% shall include not only the interest actually charged, but also commissions of agents or persons negotiating such loans; and provided further that the provisions of this Act shall only apply to loans made after the first of January, 1894."
By an Act approved December 13, 1895, (Georgia Laws, 1895, P. 24), the second proviso contained in the Act of 1893 was stricken and the following inserted in lieu thereof:
"Provided however, that the benefits and privileges of the foregoing proviso shall not apply to any foreign corporation which does or may lend money in this State at a greater rate of interest than 8% per annum. In estimating the amount of interest charged there shall be included any and all commissions or fees which may be paid to said company or its duly authorized agents."

190
It is interesting to note the origin and purpose of this statute. Just after the Civil War many foreign corporations, in the minds of the people, undertook to exploit our resources and by various devices and means obtained bogus titles to vast tracts of our rich timberlands, especially in South Georgia. When litigation arose the cases would be transferred to the Federal court for trial which was deeply resented and as a result this Act was passed requiring foreign corporations owning lands in this State, to obtain charters in the State so that they could be subjected to the jurisdiction and control of our Georgia courts and be amenable to the laws and processes of this State before they could own more than five thousand acres.
Another object of the Act was to give to the inhabitants of this State a preference in the acquisition of lands as between themselves and foreign corporations so that our vast natural resources could not be exploited by those who had no special interest in the State and could be preserved for the inhabitants of the State and their descendents.
The amendment to the Act of 1877 came about in the natural course of events, when it was seen that to require foreign corporations lending money in this State to incorporate herein, when through the course of dealings they may have acquired as much as five thousand acres of land, would be to destroy this source of financial assistance to the original owners of the land by causing such foreign corporations to withdraw their activities from this State.
There does not appear to have been any amendment of this law since 1895 and the law as it now stands is found under Civil Code Section fl~06. (Section flfl-1504 Code of 1933).
Trusting this is the information desired by you, I am

GENERAL ASSEMBLY-Split Session

January 24, 1983

Hon. E. D. Rivers Speaker House of Representatives State Capitol

Dear Mr. Speaker:



House Resolution No. IS, by Mr. Hartsfield of Fulton, recently

adopted, a copy of which has been transmitted to me, reads as fol-

lows:

"Be it resolved by the House of Representatives that the Attorney

General of this State be and he is hereby requested to make proper

investigation and submit at the earliest date possible a formal

opinion as to whether or not the General Assembly, after being

called into regular session, has power to adjourn said regular

session before the expiration of the period of sixty days, to some

other day certain."

Article three, Section four, Paragraph three of the Constitution

of Georgia as amended provides as follows:

191
''The General Assembly shall meet on the second Monday in January,1983, and biennially thereafter on the same date until the day shall be changed by law. Such session shall continue no longer than ten (10) days, and the only business which shall be transacted thereat shall be .... The General Assembly shall reconvene in regular session on the second Monday after the fourth of July, 1933, and biennially thereafter on the same date until the date shall be changed by law. No such regular session of the General Assembly shall continue longer than sixty (60) days. Provided, that if an impeachment trial is pending at the end of sixty (60) days, the session may be prolonged until completion of said trial. Provided further, that the General Assembly, by concurrent resolution adopted by the votes of a majority of a quorum of House and Senate during said special session above provided for, and approved by the Governor, is hereby authorized to fix a date for reconvening in regular session prior to date above provided for, in lieu of the date definitely fixed hereinabove." It is clear that when the ten-day special session provided for by the Constitution has ended, and the General Assembly has reconvened, either on the second 1.\<Ionday after the fourth of July, or earlier by a concurrent resolution, it is then in regular session. The portion of the Constitution relating to the length of such session is as follows: "No such regular session of the General Assembly shall continue longer than sixty (60) days." The Constitutional Amendment proposed at the 1931 session of the General Assembly, and ratified by the people at the election in November, 1932, made no change in the authority of the General Assembly to adjourn its regular or sixty day session before the expiration of the period prescribed by law to some other day certain. The provision of the Constitution before the amendment was identical in this respect with the Constitution as amended. Briefly, then, the question for determination is this: When the Constitution provides for the General Assembly to convene on a certain day, and further provides that the session shall continue no longer than a specified number of days, what is meant by the word "days"? Does it mean actual "legislative working days," or does the time begin to run from the day the General Assembly convenes and is every day thereafter counted, including Sundays, holidays, and recess days when the General Assembly is not in session? In other words, do the words "sixty days," mean sixty legislative days on which sessions of the General Assembly are actually had, or do they mean sixty consecutive calendar days?
Article three, Section seven, Paragraph twenty-four of the Constitution of Georgia (Code Section 6452) (Sec. 2-1824, Code of 1933), reads as follows:
"Neither house shall adjourn for more than three days, or to any other place, without the consent of the other; and in case of a disagreement between the two houses on a question of adjournment, the Governor may adjourn either or both of them."

192
We do not think the above provision of the Constitution has any bearing upon the question asked by your body. It simply prohibits the adjournment of either House for more than three days without the consent of the other house, but does not attempt to deal with the question of a recess or adjournment when both houses concur.
The question you propound has not been directly adjudicated by the Courts of Georgia. However, there is a strong intimation in the case of Gormley v. Taylor, 44 Ga. p. 76, that under the provisions of the Constitution of 1868 the word "days" should be construed to mean consecutive calendar days. The provision of the Constitution of 1868 relative to the length of session of the General Assembly was as follows:
"No session of the General Assembly, after the second, under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof." In Gormley v. Taylor, supra, the constitutionality of an Act passed more than forty days after the beginning of the 1870 session of the General Assembly was in question. The Court held that the Act was valid, but in doing so construed the constitutional provision that "no session of the General Assembly, after the second, under this Constitution, shall continue longer than forty days," to refer to regular sessions of the General Assembly. It held that extraordinary sessions of the General Assembly held prior to the session at which the Act was passed were not to be included in determining whether the particular session was a session "after the second, under this Constitution;" that the particular session was not a session "after the second," and that the limitation prescribed by the Constitution did not apply. In the Gormley case Justice Warner filed a strong dissenting opinion, which is set forth in the report, beginning at page 102. In this opinion, Judge Warner held that the limitation prescribed by the Constitution did apply to the particular session of the General Assembly referred to, and then said: "The limitation of the time of each session of the General Assembly, as prescribed in the Constitution, was a wise one, intended for the protection of the people against unnecessarily prolonged, expensive sessions of the General Assembly. 'No session of the General Assembly, after the second, under this Constitution, shall. continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof,' is the mandatory language of the Constitution. It necessarily follows, therefore, that all pretended laws purporting to have been passed by the General Assembly at its third session of 1870, after the expiration of forty days from the time of the commencement of that session are void, unless it is clearly shown that the session was prolonged for a longer period than forty days, by a vote of two-thirds of each branch thereof, which it was not pretended was done, and the Journals of the two Houses furnish no evidence of that fact."
The language used clearly states the opinion of Judge 'Varner that the term "forty days,'' as used in the Constitution of 1868, meant

198
forty consecutive calendar days. This construction was not contrary to the opinion of the majority of the Court, since under the majority opinion the case turned upon the question of whether the particular session of the General Assembly involved was one to which the limitation applied, and not upon a construction of the limitation. The majority opinion seems to concede, however, that if the session had been one to which the limitation applied, a decision against the validity of the statute involved would have followed.
Following the decision by the Supreme Court in Gormley v. Taylor, the questions there decided were dealt with in Macon and Augusta Railroad Co. v. Little, 45 Ga. 370. The majority of the court followed the prior decision in Gormley v. Taylor, but Judge Warner, then Chief Justice, again dissented, and restated the position taken by him in Gormley v. Taylor. In a later case, Holtzclar v. Russ, 49 Ga. 115, no question as to the validity of an Act passed at the session of 1871 was dealt with by the majority of opinion. However, Judge Warner again dissented, basing his action upon the reasons assigned by him in his dissent in Gormley v. Taylor.
The Constitution of Georgia of 1877 originally contained a provision as to the length of sessions of the General Assembly which was identical in purpose and effect with that contained in the Constitution of 1868. It provided that no session should continue longer than forty days, unless prolonged by a vote of two-thirds of each House. Under this provision of the Constitution of 1877, it was the usual practice for the General Assembly to meet in regular session on the date prescribed, and then by a two-thirds vote of both Houses take a recess until some future date, thereby extending the session for longer than forty days from the date it first convened. For example, the Senate Journal for 1878, page 195, discloses a resolution for a recess from Thursday, December 1~, until the first Wednesday in July. This resolution was adopted by a House substitute declaring a recess from Thursday, December 1~, 1878, until the first Wednesday in July, 1879, with a prolongation of the session as long as the best interest required. (See Senate Journal, 1878, pages ~13-~14).
The Acts of 1880-1881 on pages 693-694 disclose that the session was again split, and one reason for the recess was stated to be the necessity of legislative reapportionment of Representatives in Congress after the United States Census was completed. But all this was done under the express provisions of the Constitution.
Until the adoption of the constitutional amendment of 1891 providing for annual sessions, it was the regular custom to divide or adjourn the sessions of the General Assembly by a two-thirds vote of both houses as pointed out above. Such actions did not involve a legislative construction of the meaning of the term "forty days," as used in the Constitution with reference to the length of sessions of the General Assembly, since it was expressly provided in the then Constitution that sessions might be prolonged by a two-thirds vote of both Houses. There is no such provision in the present Constitution.

194
By a constitutional amendment proposed on October 21, 1891 (Acts 1890-91, p. 56), the length of the sessions of the General Assembly was extended to fifty days, and the provision whereby a session might be prolonged by a two-thirds vote of both Houses was stricken. As thus amended, the provision of the Constitution of 1877 regulating the length of sessions of the General Assembly, became identical with the provision now of force except
as to the number of days. It was provided that "no session oi the
General Assembly shall continue longer than fifty days." In construing the amendment of 1891, it would seem that con-
sideration should be given to conditions existing at the time of the adoption of the amendment. They were then having split sessions, which evidently were not satisfactory.
The decision of the Supreme Court in Gormley v. Taylor, supra, would appear to authorize a holding that the original provision of the Constitution of 1877 limited the sessions of the General Assembly to forty consecutive calendar days unless prolonged by a two-thirds vote of both Houses as then provided by the Constitution.
The constitutional amendment of 1891 expressly revoked the power of the General Assembly to prolong its sessions, and in lieu of the provision therefor increased the length of the sessions from forty days to fifty days. The action of the General Assembly in proposing and of the people in ratifying this amendment, clearly indicated an intention to limit the sessions of the General Assembly to fifty consecutive calendar days.
This construction seems to have been uniformly followed by the General Assembly itself since the adoption of the amendment of 1891.
In 1896, the General Assembly, by a joint resolution, did adjourn over from December 19, 1896, the fiftieth day of the session, until February 3, 1897. House Journal 1896, p. 925; Ga. Laws 1896, p. 355. This adjournment over was taken, however, for the purpose of investigating certain charges against two judges of the superior courts. The action taken might have been authorized under the constitutional provision for a prolongation of a session of the General Assembly until the completion of an impeachment trial. It did not involve a legislative construction of the constitutional limitation upon the length of the session.
Aside from this, the uniform construction given by the General Assembly to the Constitution has been that enunciated by Judge Warner in Gormley v. Taylor. This construction has been manifested by the uniform practice of the General Assembly to adjourn its session at the expiration of the prescribed number of consecutive calendar days after the date of convening; by its practice of including in the number of days Sundays, holidays, and all other days on which no sessions were held; and by the uniform practice of providing for the pay of members for each and every calendar day, including Sundays, holidays, and recess days, from the day it convened until the day it adjourned as limited by the Constitution. And by the fact that on one occasion, at least, it defeated a resolution providing

195
that certain days be declared dies non (House Journal, 1927, p. 506), and by the further fact that it defeated a resolution to request an opinion from the Attorney General on the validity of extending the session one day. (House Journal, 1922, p. 1114).
We have made a considerable and somewhat exhaustive examination of the decisions of the courts of other jurisdictions, with a view to determining if the precise question involved has been decided. The Constitution of Alabama of 1875, contained a provision with reference to the length of the sessions of the General Assembly of Alabama, substantially the same as the provision in our Constitution, and reading as follows:
"The General Assembly shall meet biennially, at the capitol, in the senate chamber and in the hall of the house of representatives (except in cases of destruction of the Capitol, or epidemics, when the Governor may convene them at such place in the State as he may deem best) on the day specified in this Constitution, or on such other day as may be prescribed by law; and shall not remain in session longer than sixty days at the first session held under this
SC.lOonn.s"titution, nor longer than fifty days at any subsequent ses-
Section 5, Article IV, 1875 Constitution of Alabama. (See Vol. 1, 1923 Code of Alabama, page 277.) While the provision of the Alabama Constitution quoted above was of force, the General Assembly of that State met on the 14th day of November, 1882, and remained in session until the 12th day of December, 1882, and then took a recess until the 24th day of January, 1883, and adjourned sine die on the 23rd day of February, 1883. During these periods, the Assembly held no session on any Sunday, nor on Thanksgiving Day nor on the 22nd day of February, but regularly adjourned over on each of these days as shown by the Journals of both Houses, and while the Assembly was not in actual session more than fifty legislative working days, it was one hundred one (101) days from the date it first convened until the date of final adjournment. In the case of Moog v. Randolph, 77 Ala. 597, the validity of an Act passed after the expiration of fifty calendar days from the date the General Assembly convened, was attacked. The decision of the Alabama Supreme Court on this question is stated briefly in the fourth headnote of that case, which reads as follows: "General Assembly; length of session under Constitutional provisions. The Constitutional provision limiting the sessions of the General Assembly to fifty days (Art. IV, Sec. V) has been construed by successive legislatures to mean fifty legislative working days, excluding Sunday, and other days on which, by concurrent resolution, the two houses do not sit; and the court adopts this construction."
In the body of the decision in this case, Justice Somerville, in delivering the opinion of the Court, said:
"I am satisfied that 'fifty days' means fifty legislative working days, exclusive of the Sundays, and other days upon which the Senate and House concur in refusing to sit by joint resolution of

196
adjournment. This question has been repeatedly considered by the,Judiciary Committees of the Senate and House of Representatives, at successive sessions of the General Assembly, since the adoption of the Constitution; and their reports, concurring in this view, have in each instance been adopted by those bodies. Even if we regarded the question a doubtful one, we would hesitate to depart from this settled legislative construction of the fundamental law, especially in view of the serious consequences which would necessarily flow from it. The right to adjourn ad libitum, upon certain week days, and the right to draw pay for such days, are questions not necessarily dependent, the one on the other. The power to adjourn may exist, without the right to draw pay, and they are not convertible or correlative powers, as has been argued before us at the bar." A similar question was again before the Supreme Court of Alabama in the case of Ex parte, Cowert, 92 Ala. 97. In that case the Court followed the previous ruling in Moog v. Randolph, supra, and held that the constitutional provision limiting each session of the General Assembly to fifty days meant fifty legislative working days, and that Sundays should be excluded from the computation. In 1927, the Governor of Alabama, pursuant to the statute of that State so authorizing, requested an advisory opinion from the Supreme Court in reference to the computation of legislative days; This opinion is reported in 216 Ala. 545. After quoting the applicable provisions of the Alabama Constitution, the Court said: "It seems clear that when a session of the Legislature is begun, it must proceed continuously for 50 days, not counting Sundays, unless by joint or concurring action of both houses adjournments over should be declared. Moog v. Randolph, 77 Ala. 597, 608. By such joint or concurring action the session may be extended until the time appointed by law for the meeting of the next Legislature, so long as 50 working days have not been used in actual session. Cushing's Law and Practice of Legislative Assemblies, p. 206, sections 509-515." The decisions of the Supreme Court of Alabama appear to be based more upon the fact that the Alabama Legislature had construed the limitation as to the number of days the session might continue to refer to "legislative days", excluding Sundays, holidays, and days on which no session was held, and upon the "serious consequences which would necessarily flow" from an adjudication to the contrary, than upon any conviction in the minds of the judges that such was the proper construction of the Constitution. Section 1852 of the Revised Statutes of the United States as amended, limiting the duration of sessions of the Legislative Assemblies of the several territories of the United States, provides as follows:
"The sessions of the Legislative Assemblies of the several territories of the United States shall be limited to sixty days duration." In Maricopi County v. Osborn, 4 Ariz. (40 Pac. 313), the Supreme Court of Arizona held that the term "sixty days duration" meant

197
"sixty consecutive days from the beginning of the session." This case expressly overruled an earlier decision by the Arizona Supreme Court in Cheyney v. Smith, 3 Ariz. (33 Pac. 680), holding that the term "sixty days duration," meant 60 Legislative working days, exclusive of Sundays, holidays and days of intermediate adjournment.
It will thus be seen that the decisions from other jurisdictions are not in harmony. They are, of course, not binding upon the courts of this State, but are persuasive only.
Section 4 of the Civil Code of Georgia (Sec. 102-102, Code of 1933) provides, in part, the following rules of construction of all statutory enactments in this State:
"1. The ordinary signification shall be applied to all words, except words of art, or connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subjectmatter."
"9. In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil and the remedy. Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands."
While the constitutional provision now under consideration is not a statutory enactment, it would seem that the general rules of construction set forth by the Code should be given application. Welborn v. Estes, 70 Ga. 390, 396. The ordinary signification of the words "no such regular session of the General Assembly shall continue longer than sixty days," is that such session shall not continue longer than sixty consecutive calendar days from the date of convening. Especially is this true when consideration is given to the provisions immediately following such language, that if an impeachment trial is pending "at the end of sixty days" the session may be prolonged until completion of such trial.
Construing the limitation referred to in the light of the ordinary meaning of the words used, and in the light of what was said by the Supreme Court in Gormley v. Taylor, supra, and especially in view of the uniform construction given to the Constitution by the General Assembly itself since the amendment of 1891, it is my opinion that the words "sixty days," as employed in the Constitution should be taken to mean sixty consecutive calendar days; that the General Assembly would not be authorized to extend its sessions beyond sixty calendar days from the date on which it convened; that any Act passed after the expiration of such time could be upheld only upon the theory that the action of the General Assembly in extending its session would amount to the judgment of a tribunal authorized by the Constitution to decide such question, and that the construction thus placed upon the Constitution by the General Assembly should be followed by the courts.

198
In the present General Assembly are some of the ablest lawyers not only in Georgia but in this nation. The mere fact that this query was propounded to the Attorney General shows that the answer is uncertain and shrouded in doubt.
The position of the Attorney General is very different from that of a Judge of the Supreme Court. A Judge of that court can in cases of first instance, as is this, speak with authority and his interpretation of any given proposition is the law of the land. The Attorney General in cases of first instance has no such authority. He can only give his interpretation of the law and that interpretation is not final but may under certain conditions be subject to review by the Supreme Court which may or may not agree with the conclusions of the Attorney General. For these reasons the Attorney General should proceed with great caution and in each and every case where there is doubt hold to that interpretation which prudence and sound common sense dictate.
The history of the General Assembly of this State is that a major portion of all important legislation is concluded during the last, and sometimes the very last days of its session. Should the General Assembly split its present sixty day regular session every Act, every Bill and every Resolution concluded during the adjourned session would be attacked by the ablest lawyers in every court in the land, with endless and expensive litigation and boundless confusion. Then, should our courts of last resort follow the interpretation of "legislative days" to mean calendar days as defined by the General Assembly by its practically uniform custom as did the Supreme Court of Alabama follow the custom of the Legislature of Alabama in defining "legislative days" to mean actual working days or follow the Supreme Court of Arizona which held that a regular session could not be split, our labors and our expense would go for naught and endless confusion would be worse confounded.
There can be no doubt of the legality of a continuous regular session. There is considerable doubt as to the legality of a split regular session. We should unquestionably take the safer course and hold a sixty day re!}ular session beginning on the second Monday after the 4th of July, or upon an earlier date fixed by the General Assembly as provided by the Constitution.
GENERAL ASSEMBLY-Law regarding distribution of hog cholera serum, etc.
February 6, 1988 Hon. Wilmer D. Lanier, Chairman Special Committee on Salaries House of Representatives State Capitol Dear Mr. Lanier:
In response to the request of your Committee that I furnish a statement of the law regarding the distribution of hog cholera serum, veterinary tuberculin, etc., I beg to advise as follows:

199
The Act of August 23, 1911, provided for the establishment at the State College of Agriculture of a plant for the production of hog cholera serum. It was provided that this serum be distributed under the direction of the State Veterinarian, and furnished to citizens of this State at the actual cost of production. An appropriation of $3,000 was made for the purpose of equipping this plant. By the Act approved August 19, 1912, provision was made for an annual appropriation of $6,000, $3,000 of which was to be expended for addi~ tional equipment and maintenance of the serum plant at Athens. By the Act of August 17, 1914, the provision requiring the use of $3,000 of the annual appropriation for the equipment of the plant at Athens was eliminated. Apparently this Act was designed to dis~ continue the operation of the plant at Athens. By the Act approved August 19, 1918, the annual appropriation was increased to $10,000. In this Act it was provided that "the sale or free distribution of hog cholera virus, Mallein, tuberculin or anthrax vaccine except through the office of the State Veterinarian is prohibited." The State Veter~ inarian was given authority to supervise the testing of serum made in serum plants, under regulations promulgated by him, and ap~ proved by the Commissioner of Agriculture, and to grant licenses to plants producing such serums, when the same were properly equipped. By an Act approved August 18, 1919, the annual appropriation for hog cholera control was increased to $20,000. This Act made it the duty of the State Veterinarian, upon the request of the proper authorities of any county to send an expert to such county to train not less than four persons in the administration of hog cholera serum; provided for the issuance of permits to such persons; for making of reports by them; and required them to keep on hand a reasonable supply of serum and virus "and supply same to farmers and swine growers at cost."
The Act approved August 20, 1927, providing for the control of tuberculosis in cattle, places the duty of enforcement upon the State Veterinarian. Provision is made for testing cattle for tuberculosis and destroying cattle found to be affected by tuberculosis. This Act provides that no one shall administer veterinary tuberculin except qualified veterinarians and that no person shall sell, or offer for sale or distribution, or keep on hand, any such tuberculin, except quali~ fied veterinarian or licensed druggists. There is no provision in this Act for the distribution of tuberculin at cost, but there is no requirement in the Act for the testing of cattle or the administration of serum except by the State Veterinarian or his duly authorized agent. There is no provision for making any charge against the owner for this service.
There seems to be no provision of law whereby the State Veter~ inarian is specifically required to sell and distribute hog cholera serum or other inoculating material at cost. The only specific provision to this effect is that contained in the Act of 1911, which requires that the hog cholera serum produced at the plant at Athens shall be distributed at cost. However, under the provision of the Act of 1919 that persons in the counties trained by the State Veter~

!tOO
inarian to administer hog cholera serum, shall supply it to farmers at cost, which Act seems to be the only provision of law regulating the administration of serum, it is the opinion of this Department that it was the legislative intent that such serum as the Department distributes should be sold to farmers at its cost to the Veterinary Department. This view is especially authorized by the Act of 1918 referred to, prohibiting the sale or distribution of hog cholera serum, etc., except through the office of the State Veterinarian. In my opinion it is the duty of the State Veterinarian to purchase such serum as may be necessary in the administration of these Acts, and to distribute the same to the farmers of this State at cost.
Under the provisions of Section 6566 of the Civil Code and Section 198 of the Penal Code no official of the State Government is authorized to make a personal profit out of any transaction in which State funds are employed. This provision would prohibit the State Veterinarian or any employee in that Department from making a personal profit out of any such transaction. This provision would not, however, prevent the Department itself from selling serums at more than cost, provided any such profit should become the State's profit and not the profit of any individual.
While the provisions of the various Acts regarding the control of hog cholera and other diseases of domestic animals place the duty of enforcing such laws upon the State Veterinarian, it is the opinion of this Department that these duties are to be performed by him as an official of the Department of Agriculture; and that in the administration of these laws he is subject to such general supervision by the Commissioner of Agriculture as the Commissioner is authorized to exercise in supervising the performance of the other duties of the State Veterinarian. See Talmadge v. Sutton, 175 Ga. 811.
I trust this gives you the information desired. If this Department can be of further service to your Committee please do not hesitate to call on us.
GENERAL ASSEMBLY-Authority of General Assembly to regulate employment of persons in State Highway Department, etc.
February 7, 1933 Hon. Wilmer D. Lanier, Chairman Special Com Acting under House Resolution #18-64b House of Representatives State Capitol Dear Mr. Lanier:
I am in receipt of your letter of February 7th, requesting an opinion as to the authority of the General Assembly to regulate the employment of persons in the State Highway Department, the compensation to be paid such employees, and as to the authority of the General Assembly to regulate the use of funds allocated to the Highway Department.
Generally, under Article 3, Section 7, Paragraph !t2, of the Consti-

201
tution, the General Assembly has power to make all laws and ordinances consistent with the Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper to the welfare of the State.
By the Act of 1919 (Michie's Code, Section 8~8, sub-division 14), provision is made for the allocation of a State Aid Road Fund, to be . controlled and expended by the State Highway Board, and to consist of the monies provided for by the Act of 1919 and such additional monies as might thereafter be appropriated or provided for road and highway work by the State. The Act of 1919 allocated the Motor Vehicle License fees as a part of the State Aid Road Fund. This allocation has been continued by subsequent enactments. By the Act of 1919,4 per gallon of the Motor Fuel Tax is allocated for the use in the construction of State Aid roads.
By the Act of 1919 (Michie's Code, Section 8~8, 18) the State Highway Board is authorized generally to employ clerical assistance and incur other expenses and to pay the compensation and expenses of all officials and employees of the State Highway Department. ,
In my opinion, the General Assembly has plenary power to make such regulations and pass such laws as it may deem proper for the control of the State Highway Board. In the exercise of this plenary power the General Assembly may regulate the employment of persons engaged in the performance of the duties imposed upon the State Highway Board, may fix the salaries of such employees, and may otherwise, in its discretion, regulate the use of the funds allocated to the Highway Department. In the absence of any such regulatory measures, the Highway Department is authorized by existing law, in its discretion, to disburse the funds allocated to it, but the action of the General Assembly in conferring such power and imposing such duty upon the State Highway Department, in no way exhausted the power of the General Assembly to make such further regulations concerning the disbursement of the funds allocated to the Highway Department as the General Assembly might deem proper. The General Assembly has, of course, as is stated in your letter, power to change the law governing the allocation of funds to the Highway Department. In my opinion, it also has the power, without changing such allocation, to place such limitations and restrictions upon the use of the funds allocated as it may deem proper.
I trust this gives you the information desired. If I can be of further service to your Committee, please do not hestitate to command me.

AGRICULTURE-Authority of Commissioner to apply appropriation to Veterinary Department to other purposes.

February 13, 1983

Bon. W. D. Lanier, Chairman

Special House Committee House of Representatives

Dear Mr. Lanier:

I have your letter of February 14th, requesting an opinion on the

following:

"Has the Commissioner of Agriculture any authority to spend,

except in the Veterinary Department, any money that was ap-

propriated to the Commissioner of Agriculture, but specifically al-

located to the Veterinary Department under the appropriations

of 1932 and 1933?"

By Section !l of the General Appropriations Act, approved Au-

gust 28, 1931, the sum of $300,000.00 is appropriated to the Depart-

ment of Agriculture for maintenance. There is no appropriation to

the State Veterinarian or to the Veterinary Department. It is

provided, however, by the section referred to, that:

"$75,000.00 of this appropriation be allocated to the State Veter-

inarian for the control of contagious, infectious and communicable

livestock diseases, etc."

The question submitted involves, to some extent at least, a de-

termination of the relation between the Department of Agriculture,

or the Commissioner of Agriculture, and the State Veterinarian.

In the case of Talmadge v. Sutton, 175 Ga. 811, recently decided

by the Supreme Court of Georgia, these matters were discussed at

some length. As is pointed out by Justice Bell in the opinion in this

case, the State Veterinarian is an employee of the Department of

Agriculture. It is further stated that the various Acts prescribing

the duties of the State Veterinarian do not

"Purport to confer absolute authority upon the State Veterinarian,

but the work in question is to be conducted under certain rules and

regulations previously adopted by the Commissioner of Agri-

culture."

.

In this opinion Justice Bell discussed the various appropriation Acts

containing appropriations for the work of the Veterinary Depart-

ment, and points out that in each of these Acts, including the one

now under consideration, the appropriations have been made, not

to the State Veterinarian, but to the Commissioner of Agriculture;

and that by the Act of 1918 the Commissioner is required to annually

furnish to the General Assembly a detailed itemized statement of the

expenditures of funds appropriated for carrying on the activities of

the Veterinary Department. The Court in that case, at page 822 of

the opinion, further discusses the Budget Law of 1931 requiring any

"spending agency" to make quarterly requisitions upon the Gover-

nor for funds with which to carry on the work of the agency during

the ensuing quarter, and that by the terms of the Reorganization

Act it was provided that the funds available for the support and

maintenance of the Department of Agriculture shall be the amounts

set forth in the appropriations bills from time to time.

~03
In summing up his conclusions with reference to the provisions of the various statutes governing the activities of the State Veter~ inarian and the Department of Agriculture, Justice Bell says:
"There is a plain inference that the Commissioner (of Agricul~ ture) should be considered as the head of the Department, to which even the allocated fztnds were appropriated, and also that such Department should be considered as the 'spending agency'." The general conclusion of the Court in that case is that the Commissioner of Agriculture is "More than a mere sub-treasurer or disbursing agent for the other officials assigned to different duties in his Department," and that the Commissioner of Agriculture must exercise some supervision and control over all of the activities of the State Veterinarian. Section 2 of the Appropriations Act of 1931, referred to, provides that of the $300,000.00 appropriated to the Department of Agriculture for maintenance, "There shall be expended sztms sztf!icient to carry out the duties of the Department, such as administration, collection of agricultural statistics, administration of pure food and drug Acts," etc. It is further provided by Section 8 of the Appropriations Act of 1931 that the funds appropriated shall be disbursed upon executive warrant in a lump sum to the official or officials of the Department or institution designated to receive and disburse such funds. Under the decision in Talmadge v. Sutton, supra, the Department of Agriculture is the "spending agency" for all funds appropriated to it, and under the uniform practice as referred to by Justice Bell in that decision, the Commissioner of Agriculture is the official to whom funds appropriated to the Department of Agriculture are to be paid for disbursement.
Section 8 of the Appropriations Act of 1931 further provides, in substance, that in the event of a deficiency in revenue the appropria~ tions not fixed by previous laws shall be reduced in the ratio that the amount of such appropriations bears to the amount of the deficit for either of the years 1932 or 1933. It is my information that under this provision there was a reduction of appropriations for 1932 of 1172%, which amounted, in the case of the Department of Agriculure, to approximately $34,000.00, and that this reduction was calculated upon the entire amount of $300,000.00 carried in the bill.
It is a cardinal rule of construction that the interpretation which will uphold a statute in whole and in every part is to be preferred to an interpretation which will avoid the statute in part. As stated, the appropriation carried in the 1931 Act is made to the Department of Agriculture and not to the State Veterinarian or the Veterinary Department. Thus the primary purpose of the appropriation was that the Department of Agriculture should have the amount appropriated for maintenance, with no restriction as to what particular amount of money should be used for any special activity of the Department. It is provided, however, as stated, that of the amount appropriated, sztms sztf!icient therefor should be expended to

204
carry on various enumerated activities of the Department. The Act must be given such interpretation as will uphold this language as well as the other provisions of Section 2, if such interpretation is possible. To hold that the purpose and intent of the Act was to appropriate $75,000.00 to the State Veterinarian and that that sum should be used for no purpose other than those enumerated in the allocation would necessarily destroy the meaning of the provision that sums sufficient to carry on the other activities of the Department of Agriculture should be expended from the amount appropriated. To construe Section 2 to mean that the amount of $75,000.00 should, at all events, be used by the Veterinary Department, and for no other purpose, would necessarily result in the Department of Agriculture receiving not the $300,000.00 which the General Assembly appropriated to it for maintenance, but $225,000.00 only. Under such a construction, the sum allocated to the State Veterinarian would not bear its proportionate part of any reduction of appropriations occasioned by a deficiency in revenue. This was manifestly not the Legislative intent. Such a construction would have resulted in the Department of Agriculture receiving for maintenance, for 1932, approximately $190,000.00 instead of the amount appropriated to it by the General Assembly.
There is nothing in the Appropriations Act from which it could be inferred that the General Assembly intended to reduce the gross amount of the appropriation to the Department of Agriculture below $300,000.00 unless a reduction should result from a deficiency in revenue.
Construing Section 2 in light of the entire Act, and of all the provisions of that section, and in the light of the decision of the Supreme Court in Talmadge v. Sutton, it is my opinion that the purpose and intent of the General Assembly was to appropriate $300,000.00 to be available for carrying on any and all of the activities of the Department of Agriculture; that the purpose and intent of the allocation referred to was not to reduce by $75,000.00 the amount appropriated to the Department of Agriculture for maintenance, but to authorize the expenditure of $75,000.00, or so much thereof as might be necessary, for carrying on the activities of the Veterinary Department, and that the allocation should be taken to limit the amount of money that might be expended by the State Veterinarian rather than to limit the appropriation to the Department of Agriculture.
It is my opinion, therefore, that any portion of such $75,000.00 not necessary to be expended in carrying on the activities of the State Veterinarian might legally be expended for carrying on other activities of the Department of Agriculture, and that in determining what sums were necessary to carry on the activities of the State Veterinarian the Commissioner of Agriculture would be authorized to exercise the right of supervision which was adjudicated by the decision in Talmadge v. Sutton to be vested in the Commissioner.

!Z05
REVENUE COMMISSION-Disposition of fees
February 20, 1933
Ron. w. D. Lanier, Chairman
Special House Committee State Capitol
Dear Mr. Lanier: I have your letter of February 16th requesting information as to
whether or not any fees collected by any of the Departments of the State Revenue Commission and not used for expenses would go into the general treasury.
With the exception of the Motor Vehicle Division, Fuel Oil Division, and Insurance Division, and the Cigar and Cigarette Division, the revenue collected by the various divisions listed in your letter all goes into the general fund of the treasury. There was a provision in the Sales Tax Act with reference to the use of a certain percentage of collections for expenses, but there was no allocation of that revenue, and of course any portion of the pcrcentum allowed for expenses not used for that purpose would go into the general treasury. .
The revenue arising from the cigar and cigarette tax is allocated for the payment of Confederate pensions. The Act provides that any surplus after the payment of the pensions shall go into the general treasury. There is no provision for the use of any portion of the collections for the payment of expenses.
The revenue arising under the Motor Vehicle Law is allocated to the State Highway Department. The Act as amended authorizes the use of not more than five per centum of the collections for administrative expenses. The General Appropriations Act of 1931 directed that the five per centum reserved by the Motor Vehicle Law for the payment of expenses should be paid into the general fund of the treasury. This provision has been construed by the State Auditor to mean that any portion of this five per centum paid into the general treasury, and not used for the expenses of administration of the Motor Vehicle Law, remains a part of the general fund of the treasury. His construction of the Act would seem to be the proper one, and I am informed that it has been acquiesced in by all the parties concerned.
With reference to the Fuel Oil Tax, the General Appropriations Act of 1931 directed the Comptroller General to pay into the general fund of the Treasury one-half of otie percentum of the gasoline and kerosene taxes collected, to cover the cost of collection, and the expenses of the Oil Inspection Bureau. The Oil Inspection Bureau is maintained from the lump sum appropriation made to the Comptroller General. The State Auditor has likewise construed this provision of the Appropriation Act to mean that the one-half of one per centum thus provided to be paid into the general treasury becomes a part of the general funds in the treasury, and I am informed that this construction has been acquiesced in by all the parties concerned.

206
The General Appropriations Act further provided that the tax of one-tenth of one percentum levied on premiums of fire insurance companies for the purpose of maintaining the State Fire Inspection Department should also go into the general treasury funds. The State Fire Inspection Department is likewise maintained from the general appropriation made to the Comptroller General's Department. This tax of one-tenth of one percentum is, as I understand it, in addition to the gross premium tax provided for by the General Tax Act of 19~7, and was intended to provide a fund for the purpose of fire inspection. This provision of the General Appropriations Act has likewise been construed by the State Auditor, with the acquiescence of the Departments concerned, to mean that this tax becomes a part of the general funds of the treasury.
You further request information with reference to the authority of the Governor to appoint delinquent tax agents or tax investigators. Section 159 of the Civil Code of 1910, (Sec. 40-305, Code of 1933) is as follows:
"And he has power to engage the services of any competent person for the discharge of any duty required by the laws, and essential to the interests of the State, or necessary, in an emergency, to preserve the property or funds of the State." Under this provision, the Governors of this State have, for years, in the exercise of their discretion employed agents to collect taxes, which otherwise might not have been collected.
ELEEMOSYNARY INSTITUTIONS-Authority of State to exact from any inmate compensation for the care and maintenance of such inmate.
February ~~. 1933 Hon. W. D. Lanier, Chairman Special House Committee Acting Under House Resolution #18-64b House of Representatives Dear Mr. Lanier:
I have your letter of February ~1st, making inquiry as to whether or not the State has authority to exact from any inmate in any of the eleemosynary institutions compensation for the care and maintenance of such inmate.
The provisions of Sections 1594, et seq. of the Civil Code of 1910, (Sees. 35-~~~ et seq., Code of 1933) relating to the admission, management and discharge of patients at the State Sanitarium seem to contemplate that patients able to do so shall pay the cost of their maintenance at the sanitarium. It is provided by Section 1605 that the Court committing a person to a sanitarium shall certify if the person be a pauper and that he shall not be certified a pauper unless in whole or in part supported by the county, or the county is bound for his support under the law. It is further provided by this Section that if there are persons who, by law, are bound and able to support such person so committed, their names shall be given; and

207
if the person committed has means sufficient to support himself in part, the amount of such means must be stated and must be paid toward his support. Patients to be admitted to the sanitarium are classified by Section 1596 in the following groups:
I. Pay or pauper patients, residents of this State. 2. Pay patients being non-residents. 3. Insane penitentiary convicts. 4. Insane negroes, in certain cases. There is a further provision that a pay patient, resident of this State, shall not be admitted unless accompanied by authentic evidence of lunacy. A similar provision is made with reference to the admission of pay patients who reside in other States. It is provided by Section 160~ that pay patients may be divided into different classes, according to the accommodation desired and their means of paying. It is provided by Section 1605 that a certificate of pauperism entitles a person to be supported at the expense of the State; that those for whose support others are bound must be furnished with suitable support by the State and the expense collected out of such other persons by the Trustees. It is provided by Section 1607 that if a person committed as a pauper becomes entitled to an estate, such estate is bound for his support according to its value, and whoever holds it may be compelled to secure to the sanitarium its proper charges, or to turn over to the trustees the property to be held for such purpose. It seems to me that the provisions of law referred to above afford to the Trustees of the State Sanitarium, or the Board of Control, ample authority of law to exact compensation for the support and maintenance of inmates who have property or estates, or for whose support and maintenance other persons are bound, and that they would be authorized, if necessary, to institute actions to recover therefor. As a practical matter, there seems to be no provision for going behind the certificate of pauperism required to be filed by the committing court, except in a case where an inmate thereafter becomes entitled to an estate. There seems to be no provision of law for requiring inmates of the Georgia Training School for lVIental Defectives, or other persons bound for the support of such inmates, to pay anything therefor. With reference to the Sanitarium for the treatment of tuberculosis patients, it is provided by the Act of 1922, (Michie's Code, 1926, Section 1623(4)) that the terms and conditions under which patients are to be accepted shall at all times be subject to such reasonable rules, regulations and control as may be prescribed by the State Board of Health. This would seem to authorize the State Board of Health to require patients able to do so to contribute toward the expense of maintaining and treating them.
With reference to the Academy for the Deaf and Dumb, it is specifically provided by Section 1426 of the Code, that admission shall be free of cost to the persons admitted.
The Trustees of the Academy for the Blind are authorized by

!lOS

Section 1403 of the Code, (Sec. 35-703, Code of 1933) to establish

rates of tuition. It is provided by Section 1404 that "all indigent

blind persons between the ages of seven and twenty-five" selected

. by the Trustees of the different counties and received at the Acade-

my, shall be supported and educated gratuitously, to the extent that

the funds will permit. Pupils other than indigents are to be re-

ceived upon such terms as the Trustees may impose.



The Training School for Boys, and the Training School for Girls

are Penal institutions, and I assume that your question has no

reference to them.

There is no provision of law for any charge to be imposed upon a

Confederate Soldier domiciled at the Soldiers' Home. It is pro-

vided, however, by Section 1518, of the Penal Code (Sec. 35-904,

Code of 1933) that no Confederate Soldier who accepts the benefits

of the Home shall at the same time draw any pension under the laws

of this State.

From what is said above, it would seem that there is already ample

authority of law for requiring inmates of the Sanitarium to pay for

the services rendered if able to do so.

However, if in your judgment a further legislative enactment

upon the subject is necessary or advisable, this Department will be

glad to co-operate with you in preparing the necessary bills. It may

be that a resolution along this line would have a salutary effect.

GENERAL ASSEMBLY-Where appropriation bill is passed by House, sent to Senate and Senate passes a "substitute", such bill, when and if finally passed by the General Assembly is valid.
March 16, 1933. Hon. W. W. Mundy, Chairman Committee on Appropriations House of Representatives Dear Mr. Mundy:
Reference is made to your request for an opinion as to validity of the substitute bill for the general appropriation bill, passed by the Senate, in view of the provisions of Article 3, Section 7, Paragraph 10 of the Constitution of Georgia.
The appropriation bill passed by the Senate was based on House Bill No. 403, which originated in the House and is, therefore, the same bill amended, and when and if finally passed by the General Assembly will comply with the provisions of Article 3, Section 7, Paragraph 10 of the Constitution which provides that all bills for raising revenue or appropriating money shall originate in the House of Representatives, and further providing that the Senate may propose or concur in amendments as in other bills.
The fact that the Senate calls it a "substitute" does not change the nature or character of the bill.

209
FISH-Only one license for county necessary regardless of number of places of business in county for selling fresh-water fish
April 11, 1933 Hon. PeterS. Twitty, Commissioner Department of Game and Fish Dear Mr. Twitty:
I have your letter of April 6th with reference to the recent Act of the General Assembly amending the game and fish laws so as to require
"That each peddler of fresh-water fish and each person, firm or corporation who shall sell or offer for sale fresh-water fish, shall first procure a license in each county which fresh-water fish are peddled, sold or offered for sale." You request an opinion as to whether or not companies operating a chain of grocery stores or markets would be required to pay "this tax" on each store or place of business where fresh-water fish are sold. This measure is not a revenue measure but is a regulatory measure passed to aid in the enforcement of the game and fish laws and in the conser:vation of fish. The revenue is to be used for enforcing the fish laws and for the establishment of fish hatcheries. It is not to be used, as in the case of taxes generally, for defraying the governmental expenses of the State. In my opinion this Act requires a person, firm or corporation engaged in selling fresh-water fish to procure a license in each county, and when such license is procured the licensee may sell fresh-water fish at any place of business such licensee may have in the county. It is not necessary to obtain licenses for each place of business.
GAME AND FISH-Agent liable for money collected from sale of hunting and fishing licenses deposited in bank, which becomes defunct
June 15, 1933 Hon. Peter S. Twitty, Commissioner Department of Game and Fish Dear Mr. Twitty:
I have your letter of June 15th, in which you request an opinion as to whether or not an Ordinary or other licensed agent designated under Section 5 of the Act approved August t.:J., 1931, as an agent to sell hunting and fishing licenses, and who deposits the proceeds of the sale of licenses in a State bank, which becomes defunct, is individually liable for the amount of such funds so deposited.
Section 5 of the Act referred to authorizes the Commissioner of Game and Fish to place licenses with the Ordinary of each county for sale. He is further authorized to place such licenses with any reputable individual or corporation, who shall be required to give bond conditioned for the prompt accounting for licenses received and sold. This Section makes it the duty of the Ordinary who receives such

~10
licenses to place them on sale and remit the proceeds to the State Commissioner of Game and Fish. Section 6 of the Act fixing the fees of Ordinaries and other persons selling licenses, provides that they are authorized to deduct the fees from the amount received for the licenses, and that they shall not later than the fifth of each month remit to the Commissioner of Game and Fish all monies received from the sale of licenses, less the amount of the fees as prescribed by this Section.
Neither of these Sections authorizes the Ordinary or other person selling such licenses to deposit the proceeds in a bank to the credit of Game and Fish Department, or direct same to be done. Since such an agent is required to remit the amount received, less the lawful fees, and since the matter of whether or not he deposits any such collections in the bank, is one wholly within the discretion of the agent, in my opinion, if he does so, it is at his own risk, and he cannot account for the monies received by him from the sale of licenses by showing that same were deposited in a bank and that the bank became defunct. I do not think the question of negligence or diligence enters into the matter.
GAME AND FISH-Authority of Game Warden to make physical arrest of violators of game laws
October 26, 1988
Hon. Peter Twitty, Commissioner Department of Game and Fish Dear Mr. Twitty:
Yours of the 24th instant has been received. Your desire an opinion upon whether a State Game Warden or a deputy State Game Warden, acting under the authority of the Act of 1981 as contained in Georgia Laws, 1981, page 174, has the power and authority to make a physical arrest of any person or persons violating any of the provisions of the Game and Fish Laws of this State. In your letter you show that you are familiar with Section 25 of the Act approved August 8, 1924, as contained in Georgia Laws, 1924, page 112, and also with the provisions of the laws of 1981, page 174. It is my oponion, based upon these provisions of our law, that a State Game Warden or a Deputy Game Warden may make a physical arrest of any person or persons violating any of the provisions of the Game and Fish laws of this State. However, unless such officer actually saw the crime committed or the same was done within his presence, then it would be necessary for him to have a warrant in order to make a legal arrest. Section 917 of the Penal Code (Section 27-207, Code of 1988) of our State provides as follows: "An arrest may be made for a crime by an officer, either on a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause

211
there is likely to be a failure of justice for want of an office to issue warrant." Thus, you can see from this section what the necessary qualifications or restrictions are for an arrest without a warrant.
VETERANs-Veterans holding disability certificates not exempt from license fees imposed under Sections 35 and 36, Ga. Laws 1924, pp. 116 and 117.
February 1, 1934
Mr. Louis Wright, Chief Clerk Department of Game and Fish Dear Mr. Wright:
Yours of the 29th ult., inclosing the letter of Mr. A. M. Smith, Secretary of the Tidewater Division, dated January 27, has been received.
You request an opinion whether a disabled veteran holding an Ordinary's certificate is exempt from the payment of the license fee as imposed under Sections 35 and 36, Georgia Laws 1924, pages 116 and 117.
The Act of 1924 creating the State Board of Game and Fish, and the Office of Tidewater Commissioner, places the supervision, protection and development of the fish and oyster industry, and game of this State, under the jurisdiction and authority of this body. Sections 35 and 36 of this Act provides:
"That all boats engaged in taking fish, oysters, or shrimp, or other sea-food, for the purpose of sale from any of the waters of this State, shall, before beginning operation, first secure from the Tidewater Commissioner a license, and for this purpose the owner of the vessel must present in writing an application setting forth the name and description of said vessel, the name and post office address of the owner and the Captain of said vessel, the number of the crew, and such other data or information as the said Commissioner shall deem necessary. Said application shall be made on blanks prescribed by the Commissioner and shall be made under oath and duly witnessed by the officer authorized by the law to administer oaths; thereupon said Commissioner shall register said vessel and issue license upon payment of cost thereof. The schedule of license for boats shall be the same as provided in Section 3 of House Bill No. 267, approved August 19, 1919. That any person desiring to take or catch fish from the salt-waters of this State, for commercial purposes shall first obtain from the Tidewater Commissioner a license therefor, and said license shall have effect for a period of twelve months from the first day of the month following the date of issue; the fee for such individual license shall be two ($2.00) dollars." In Section 31 of this Act it is provided: "All monies derived from boat licenses, salt water fishing, tax on sea-foods, fines, forfeitures, lessees, or other sources from Tide-

212
water Georgia shall be kept in a separate fund known as the coastal fisheries fund." Section 32, among other things, provides: "The coastal fisheries fund shall be used to defray the expenses of the State Board of Game and Fish in Tidewater, Georgia, and for the protection, propagation, and distribution of seafood during the first year in which received and the following fiscal year, and at the end of said fiscal year the surplus remaining shall be paid over to the State Treasurer for the benefit of the common school fund of Georgia." From a careful reading of this Act it is readily seen that the license fees charged are in the nature of regulatory fees. The whole law is aimed at the protection and preservation of the interest of the public in the natural resources consisting of the game and fish, shell food, and crustacea of this state. \Ve are forced to the conclusion, after reading Sections 31 and 32, of this law, that the license fees charged are primarily for the purpose of defraying the expenses of the administration of this law. The applicant for a license under Section 35 "Must present in writing an application setting forth the name and description of said vessel, the name and Post Office address of the owner, and Captain of said vessel, the number of the crew, and such other data or information as the said commissioner shall deem necessary." on blanks prescribed by the commissioner. Therefore, it is my opinion that since the license fee charged is in the nature of a regulatory fee as distinguished from a revenue raising measure, a person holding a certificate of an Ordinary granted under the provision of Section 1888 of Michie's Code of 1926 would not be exempt from the payment of a license fee. It was said by the Supreme Court of our state in the recent case of McKinney vs. Patten, 176 Ga., page 721 "In construing the law relative to a disabled veteran's exemption from the regulatory fees imposed by the Motor Carriers Act for hire of 1921; it appears that the statutes under consideration are regulatory in nature, and that all persons proposing to conduct the business of a motor carrier as defined thereby must submit themselves to the jurisdiction and control of the Public Service Commission. Since neither statute provides an exemption in favor of a veteran we are of the opinion that even tho a veteran may hold the certificate contemplated by the Civil Code Section 1888, he still may not conduct the business of a motor carrier without obtaining from the Public Service Commission a certificate of public convenience and necessity, as other persons are required to do." I feel it proper to apply these same principles to the regulatory measures of the game and fish laws found in Georgia Laws 1924, page 101 et. seq., and hold that a disabled veteran is not exempt from these provisions.

213
GAME AND FISH-Assignment of oyster bottom leases
February 24, 1934 Mr. Louis Wright, Chief Clerk Department of Game and Fish Dear Mr. Wright:
Yours of recent date inclosing the letter of l\Ir. L. A. Miller, of February 22nd, has been received.
Mr. Miller desires to be advised whether a lease to oyster bottoms may be legally transferred by the lessee to another party if the transfer is approved by the Department of Game and Fish, and if so, will the bottoms covered have to be advertised in the name of the new applicant or new lease made to him. Also, whether, after an application has been advertised in conformity to law and before the lease is executed, the lease may be made to another party other than the applicant as advertised, by consent of the first applicant without readvertising the same.
Under Section 2158 (13) of Michie's Code of 1926, the Tidewater Commissioner, under the general supervision of the Department of Game and Fish, is given charge, control and management of the protection, propagation and distribution of food and game fish, shell fish and crustacea in the tide water counties of Georgia, and the power to grant leases of lands for shell fish culture according to law.
It is therefore, my opinion that the power given to the Tidewater Commissioner, subject to the approval of the State Department of Game and Fish, to grant leases of lands for shell fish culture according to law, necessarily includes the power to assign such a lease with the consent of the original lessee and with the approval of the State Board of State Department. The greater power to grant the lease includes lesser power to permit an assignment of the same.
In answer to the question as to whether a new advertisement should be run before the lease is assigned to the new applicant, it is my opinion that this would not be necessary. Under Code Section 2158 (16), with reference to publication of the notice of the application for a lease, it is provided:
"Notice of such application shall be by publication once a week for four weeks in the official gazette in the county or counties in which such lands lie four weeks prior thereto. If no good cause be shown to the contrary, the Commissioner may have said ground surveyed and a plat made thereof and the grounds marked off, at the cost of the applicant, at the time the survey is made, and at the direction of the surveyor, with suitable stakes, smooth and free from snags and spurs, and suitable stakes shall be kept by the lessee in their proper places during the continuance of such lease so as to conform accurately to the survey." Section 2158 (18) provides: "Any person who has planted oysters in good faith on lands prior to the passage of this Act shall have the first option and refusal to have said land leased to him by the Tidewater Commissioner, who shall take the fact into consideration in fixing the lease fee to be charged."

214r
A reading of this latter section indicates to our mind the purpose of the publication of the notice of an application, for a lease of an oyster bottom. This advertisement is merely for the purpose of putting the general public upon notice that some one is applying for the privilege of leasing of certain lands as described in the advertisement, so that if any person who has planted oysters in good faith on the lands being advertised, said person may, after being put on notice by the advertisement, exercise the option as granted to him under Section 2158 (18).
Under Section 2158 (16) it is also provided: "The owners of lands having a water front thereon suitable for planting oysters shall have prior rights over all other applicants for assignment and lease of oyster planting grounds adjacent thereto." The purpose of the advertisement is also to put this class of people on notice that an application having been made for certain oyster bottoms, which might in some cases be the bottoms which are adjacent thereto and which they might desire to exercise their prior right to. In answer to the third question of Mr. Miller, it is my opinion that the lease would have to be executed to the person in whose name the application was made and the advertisement was run. Mter the lease is made to this party, it is my opinion, as stated above, that said party could assign the lease to another party without readvertising the same, provided the assignment is approved by the Department of Game and Fish.
GAME AND FISH-Summary of the law relating to shad fish licenses and batteau licenses
March 10, 1934 Hon. Z. D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
Your request for a summary of the law relative to shad fish licenses and batteau licenses has been received.
We are summarizing the law of our State on this subject hereinbelow:
By an Act approved February 29, 1876 (Ga. Laws 1876, pp. 20, 21), a closed season was prescribed for shad, this provision of the law being found in Civil Code of 1926 under Section 2088 and is as follows:
"There shall be a 'closed time' in all the rivers of Georgia, in which shad are caught, of forty-eight hours, commencing at sunrise on Saturday morning of each week, and ending at sunrise on Monday morning of the next week, during which 'closed time' no shad or other migratory fish shall be caught by nets, wires, pounds, or any other means whatever, nor shall such nets, wires, pounds or other apparatus be left set in said rivers during said 'closed time.' The meshes of the nets or other apparatus for catching said fish shall not be less than five inches."

215
In this Act no license fee was prescribed. However, the violation of this Act was made a misdemeanor.
By an Act approved August 17, 1918 (Ga. Laws 1918, pp. 270, ct. seq.) it was provided in Section Three of said Act as follows:
"That any person who shall take shad frmn the waters of this State for purposes of sale, without first procuring a license from the Commissioner of Game and Fish, as hereinafter provided, shall be guilty of a misdemeanor and punished as hereinafter provided." Civil Code Sec. 2089 (3). Under Section 4 of said Act it was provided: "The licenses as provided in the foregoing section shall be as follows: That persons having a residence within this State and being citizens of the United States, shall pay a fee of one ($1.00) dollar for such license, and that citizens of other states residing outside of this State, and who take shad from the waters of this State for the purposes of sale, shall first procure from the Commissioner of Game and Fish of this State a license, the fee for which shall be ten ($10.00) dollars, and that aliens whether residents of this State or other States, who engage in the taking of said fish for the purposes of sale from the waters of this State shall first procure a license from the Commissioner of Game and Fish of this State, the cost of which shall be ten ($10.00) dollars, and that all licenses provided for in this section of this Act shall be good for the term of one year from the first day of the month on which same was issued." (Civil Code Section 2089 (4)). Section six provides a penalty for the violation of any of the provisions of this Act by imposing a fine of not less than $10.00 and all costs in each case, nor more than $100.00 and costs, or serve upon the public works of the county for a term not less than thirty days nor more than ninety days. By an Act approved August 19, 1919 (Ga. Laws 1919, pp. 236, et. seq.), it was provided in Section 2 as follows: "That any person desiring to take or catch fish from the salt waters of this State for commercial purposes shall first obtain from the Game and Fish Commissioner a license therefor and said license shall have effect for the remainder of the calendar year in which issued. The fee for such individual license for a resident of the State of Georgia shall be $2.00, and for a non" resident or an alien this fee shall be $10.00. Said license shall contain the name and post-office address, height, weight, and race of the fisherman, and shall be issued either by the Department of Game and Fish or by the Coast Inspector in the district in which said fisherman is located." Civil Code 2158 (28). By Section Three of said Act, a uniform system of licenses for boats in this State was established, it being provided in said section that this license, "Shall be in lieu of all licenses heretofore charged." It was provided that: "No boat shall engage in commercial fishing in this State without being provided with a license, and shall take no individual fisherman upon said boat unless said fisherman be duly licensed."

216
The licenses provided for in this section were as follows:
"A license fee of $5.00 shall be levied on all Batteaux, and all boats propelled by sail or power of less than five tons shall pay a license fee of $10.00; all boats of over five tons shall pay a license fee of $2.00 per ton or fraction of ton thereof." Civil Code Section 2158 (27,Y2). Comparing the Act of 1918 and the Act of 1919, it will be noted that the shad fishing license as imposed under the Act of 1918 is in the amount of $1.00 for residents and must be obtained by "any person who shall take shad fish from the waters of this State for the purpose of sale." The Act of 1919 imposes a license fee of $2.00 on residents and requires "any person desiring to take or catch fish from the salt waters of this State for commercial purposes," to obtain the license. Construing these Acts together, it is our opinion that if the shad fish are caught in fresh waters, the license required is that of $1.00, whereas, if the same are fished for or caught in salt waters of this State, the fee required is $2.00. There is no apparent conflict in these provisions since one is applicable to the waters of this State without regard to the nature of the waters, whereas, the license fee as imposed under the Act of 1919 is applicable only to the salt waters of this State. It is our opinion further that a person obtaining a license under the provisions of the Act of 1918 relative to shad fishing would not be authorized under this license to fish for shad or any other fish in the salt waters of this State, without first procuring the salt water license as imposed under the Act of 1919. Neither would a person who obtains a salt water license under the provisions of the Act of 1919 be authorized to use the same in fishing for or catching shad in the fresh waters of this State. The provisions of neither license includes the privileges as provided under the other. Each license as provided for under the respective Acts is peculiarly adapted and applicable only to the nature of the waters in which it is to be used as a grant of fishing privileges. Each license is exclusive of the other, that is, a salt water license cannot be used in fresh water regions and a fresh water license cannot be used in salt water regions.
If there is a conflict between the Acts of 1918 and 1919 relative to these fishing licenses, the provisions of the Act of 1919 would prevail over the provisions of the Act of 1918 with which there is any conflict, the Act of 1919 having provided that all laws and parts of laws in conflict with this Act are hereby repealed. Therefore, if by the Act of 1918 which gave a person, upon obtaining the license as prescribed therein, a right to take shad fish from "the waters of this State for purposes of sale" was meant by the Legislature to apply to all waters, whether fresh water or salt water, the Act of 1919 by necessary implication, if not otherwise, repealed the provisions of the Act of 1919 in so far as the same extended to the salt waters of this State. In other words, since the passage of the Act of 1919 relative to salt water fishing, if there is a conflict between said Act and the Act of 1918 relative to fishing licenses then the Act of 1918 must now be construed as follows:

217
"Any person who shall take shad fish from the waters of this State, (except the salt waters of this State) for purposes of sale, must first obtain a license as prescribed under Section 2089 (4), and any person taking fish from the salt waters of this State must first procure a license as provided for in the Act of 1919 or under Civil Code Section 2158 (28)." It is our opinion that the batteaux licenses as provided for under Section 2158 (27Yz) apply to both fresh water and salt water fishing for commercial purposes or for the purposes of sale. It will be further noted that by an Act approved August 8, 1924 (Ga. Laws 1924, pp. 101, et. seq.), the provisions of Section 2158 (28) were re-eneacted by Section 36 of the Act of 1924, this section prescribing a license fee of $2.00 for persons desiring to take or catch fish from the salt waters of this State. Under Section 37 of this Act, which section makes it clear to our minds that the batteau license as formerly provided for under the Act of 1919 was notrepealed, provided: "Be it further enacted, that all boat and fishing licenses and other permits (except hunting licenses) heretofore issued by the Game and Fish Commissioner in tide waters of Georgia, shall be issued by the Tidewater Commissioner, after his appointment and qualification under this Act." A thorough investigation of this subject fails to disclose any decisions of our appellate courts upon the construction of these provisions of our law, however, I feel that the interpretation given herein is logical and sound and should be adopted as the only proper construction of the law on this subject.

GAME AND FISH-Definition of a private pond

April 28, 1934

Hon. Zack D. Cravey

Commissioner of Game and Fish

Dear Mr. Cravey:

.

I have your request for an opinion as to whether a pond formed by

the over-flow of a river at high water is a private pond within the

meaning of the game and fish law.

It is my understanding that the ponds to which you refer have no

outlets and are not regularly fed by any running stream but are

caused by the over-flow waters from rivers which at high water run

into the depressions in the earth and when the water of the rivers

recede a pond is thus left.

The law defines a private pond substantially as one lying entirely

within the boundaries of a single ownership.

It is my opinion that a pond such as herein described is a private

pond within the meaning of the statute.

!liS
GAME AND FISH-State Game Warden or Deputy may carry firearms without license June !l8, 1984
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
I have your letter of June 27th requesting my opinion as to whether or not a State Game Warden or Deputy Warden appointed by the Commissioner of Game and Fish may lawfully carry firearms.
Of course, there is no restriction in the law on the carrying of any sort of firearms except pistols. Any person can carry a pistol provided he does not conceal it and provided he first obtains a license from the Ordinary. Under the Act of 1910 no person is authorized to carry a pistol concealed.
The Act of 1910 (Michie's Penal Code, 848(1)) made it unlawful for any person to carry a pistol outside of his own home or place of business without first obtaining a license from the Ordinary, and it expressly provides that it shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed by law to carry revolvers.
The Game and Fish Act expressly provides that the Game and Fish Commissioner, wardens, deputy wardens, shall be authorized to serve all criminal processes for sheriffs of the game and fish laws which could be served by the sheriffs and constables of this State.
Under date of October 22nd, 1988, this Department rendered an opinion to Mr. Twitty to the effect that under the circumstances therein stated the Game Warden or Deputy Game Warden could make an arrest for violations of the Game and Fish laws.
Although provision has been made for these Game Wardens and Deputy Game Wardens since the passage of the Act of 1910, I am of the opinion that since they are expressly authorized to serve criminal process they come within the provisions of the Act of 1910 which authorizes arresting officers to carry revolvers without obtaining licenses. I am therefore of the opinion that a State Game Warden or Deputy Game Warden may legally carry a pistol without a license, provided he does not carry it concealed.
GAME-Licenses required to do any kind of hunting except on own land; non resident may hunt on his own land without license
August 5, 1984
Mr. Louis Wright, Chief Clerk Department of Game and Fish
Dear Mr. Wright: I have yours of the Srd instant requesting an opinion as to whether
'possum hunters and fox hunters can hunt with somebody else's dogs or hunting with a party who owns the dogs, are liable for a license, and whether a non-resident owning land in the State of Georgia may hunt on this land without paying a hunting license.

219
Section 1 of the Act of 19~5 (Ga. Laws 1925, p. 802), provides in part,
"A license shall be required to hunt in Georgia,'' and prescribes the manner in which said licenses are obtainable and the cost thereof. Under this section.
"A license may be issued to a person in his resident county upon the payment of a fee of $1.00; if such application is accompanied by a fee of $3.00, the license shall authorize the applicant to hunt throughout the State." This Section was changed by the Act of 1931 (Georgia Laws, 1931, p. 176), changing the fee to $3.25. A non-resident of Georgia may procure a license to hunt throughout the State upon the payment of a fee of $25.00. It is further provided in this section as follows: "That nothing herein shall prevent a land owner or his tenants and their families, with the land owner's consent, from hunting on his own land without a license." See also Georgia Laws 1931, p. 176. Thus it is seen that a license is required to do any kind of hunting in the State of Georgia. No kind or character of game, whether designated by the Acts of 1925 and 1931 or not, is to be hunted without complying with the requirements as to license and without first obtaining the permission of the land owner, with the exception that a land owner hunting with the land owner's consent on the land owner's land are not required to purchase a license. Therefore, the answer to your first question seems to turn on the definition of the word "hunting". The Acts of 1925 and 1931 do not specifically define what shall constitute "hunting". However, we find that the Supreme Court of Appeals of Virginia, in the case of Commonwealth v. Bailey 97 S. E., 774, in construing an Act of the General Assembly creating a State Department of Game and Inland Fisheries, which Act is very similar to our own, and which act made it a misdemeanor to hunt without a license, adopted the definition as contained in Bouriers Law Dictionary, page 967 as follows: "The Act of pursuing and taking wild animals; the chase." The Court also quoted the definition from the New Webster's International Dictionary as follows: "To chase or follow after, as game and wild animals; to chase; to pursue for the purpose of catching or killing; to follow with dogs or guns for sport or exercise; as, to hunt a deer. To follow the chase; to go out and pursue the game; to course with hounds." Also the definition in the New Standard Dictionary as follows: "To pursue for the purpose of killing or catching; as to hunt the lion; to take part in the chase for sport or exercise; as to hunt with fox; to go in pursuit of wild animals for food or feather."
It is therefore, my opinion that any person who takes part in the chase, follows the dogs, or in any manner goes in pursuit of the game is hunting within the meaning of the Acts of 1925 and 1931, and is

220
required to obtain a license for so doing, irrespective of whether such person owns the dogs or is hunting with dogs belonging to some one else. This is true, provided the person doing the hunting does not fall within the provision or exception made by Section!l''as to the obtaining of license, that is, the land owner hunting on his own land, or his tenants and their families hunting on a land owner's land with the owner's consent.
As to the question of whether a non-resident of this State may hunt on lands owned by him in the State of Georgia without paying a license, it is my opinion that such a person may do so. The exemption of land owners from the requirement of obtaining a license is not based upon residence. It is based purely upon ownership, and although the State has such an interest in the game and fish of the State as to prescribe regulations in the interest of the public, nevertheless, the owner of the land has a right to take fish and wild game upon his own land by reason of his ownership of the game. It is a property right as much as any other distinct right incident to his ownership of the soil, this right being qualified in the respect that it must always be held subject to the State's ownership and title in such game and fish, either for the purpose of regulation or preservation for the public use. However, the State could not discriminate between land owners in regard to their property rights in the game and fish located upon the lands on account of non-residence. It occurs to me that the exception in the Act of 1925, Section 1, which exempts land owners from the requirement of obtaining a license to hunt on his own land, makes no such discrimination between residents and non-residents. Furthermore, if such discrimination was intended, the same would be unconstitutional in that it would violate the 14th amendment to the Federal Constitution by denying the equal protection of the law, as it would prevent the same enjoyment of the property right in game or fish by a non-resident land owner. The taking of this property right in any such manner would be without due process of law. See,
State v. Mallory 83 S. W., p. 955. It is therefore my opinion that a non-resident of this State, owning property in Georgia, may hunt upon this land without paying a license, provided such hunting is done in season and the other provisions of the game laws are complied with.

221
GAME AND FISH-Trapping in marsh lands adjacent to property leased for oyster purposes
August 28, 1934 Hon. Zack D. Cravey Commissioner of Game and Fish Dear J\IIr. Cravey:
I have your request for an opinion upon the facts stated in the letter of Mr. S. Hadley Brown of Brunswick, Georgia, of the seventeenth instant relative to whether the law of Georgia would prohibit anyone from trapping in the marsh lands adjacent to property leased for oyster purposes.
In reply I refer you to Section 1 of the Act of 197l9 (Georgia Laws, 1929, p. 335) which makes it unlawful for any person to use a steel trap or other like device in trapping or catching any bird, game or animal in any of the counties of the State and which contains this exception:
"But this Act shall not apply to the salt water marshes and the islands along the coast of Georgia; provided, however, that the Commissioner of Game and Fish may issue special permits to game wardens, deputies, or other responsible persons, authorizing the taking by means of steel traps, of vermin and predatory animals in localities where such vermin or predatory animals are a menace to quail or other game birds, and each steel trap used for this purpose shall have securely fastened thereto a tag issued by the department of Game and Fish, showing authority for its use." As you will note, this law prohibits trapping in marsh lands unless a special permit is obtained from your department under certain conditions. The Act of 1931 amending Section 12 of the Act of 1925 (Georgia Laws 1931, p. 167) exempts persons living in counties of a population of not more than 8,406 or less than 8,400 according to the official census of 1920, and persons living in counties of a population of not more than 12,970 and not less than 12,968 according to the 1930 census from the requirements of purchasing a license for the trapping of fur bearing animals for the purpose of their hides. The former exemption applies only to Gilmer County, which under the 1920 Census was the only county which had a population of not more than 8,406 and not less than 8,400; and the latter exemption applies only to Fannin County, which was the only county having a population of 12,969 under the 1930 Census.

GAME AND FISH-Sale of fur bearing animals not prohibited; restaurants not liable for fresh-water fish license
September 28, 1984 Mr. H. A. Carter Staff Zoologist Department of Game and Fish Dear Mr. Carter:
I have yours of September 25th, requesting an opinion upon the following questions: 1. Is the sale of fur bearing animals, as defined by law, forbidden under the same law which prohibits the sale of game animals or may they be sold in view of the fact that such sale is not expressly forbidden? Answer: Penal Code, Section 594 (6) provides:
"The following shall be deemed fur bearing animals; mink, otter, bear, wild cat, muskrat, skunk, raccoon, o'possum and fox."
Game birds and animals are classified under Section 594 (17) of the Penal Code as follows:
"Quail, commonly known as Bob White partridges, doves, snipe, wood-cock, curlews, wild turkeys, grouse, deer, squirrels, ducks and marsh hens."
Under Penal Code, Section 594 (18), it is made a misdemeanor for "any person to purchase, or sell, or export for sale, or offer to sell, any of the game birds or animals named in Section 594 (17), except for certain specified purposes as outlined in this section.
There is no statute prohibiting the sale of fur bearing animals as defined by law. However, Section 594 (7) provides an open season for the taking or possessing of these fur bearing animals and it is provided:
"At any and all other times it shall be unlawful to take in any manner, to possess, to kill or in any manner to destroy any of said animals." In effect, this section does prevent the sale of fur bearing animals during the closed season, for it is difficult to conceive of a sale of such fur bearing animals in which either the seller or the purchaser would not come into possession of such animals sold. These sections, with respect to fur bearing animals, are found in the Act of 1925, as Sections 7 and 8 (Georgia Laws, 1925, page 304). In Section 7 of this same Act, it is provided: "Any person violating any of the provisions of this Act shall be guilty of a misdemeanor, unless other punishment is specifically provided herein, he shall be fined not less than $25.00 and not more than $200.00 and all costs of Court, or sentenced to work on the public works for not less than 30 days or more than 90 days, or by imprisonment in the common jail for not less than 30 days or not more than 90 days, either or all of said punishments in the discretion of the court." As you see, therefore, it is a misdemeanor to possess any fur bearing animal within the closed season, whether such possession arises through a purchase or otherwise.

2. Are persons operating restaurants, buying, cooking, and serving fresh-water fish to the public required to have the license to sell fresh-water fish? .d.nswer: Section 6 of the Act of 1931 (Georgia Laws 1931, p. 171) prescribed a license fee of $10.50 for each peddler of fresh-water fish, but exempted from the operation of this law those who operated "a regular place of business." Section Six of this Act was amended by the Act of 1933 (Georgia Laws 1933, p. 152) and the provision which exempted those operating a regular place of business was omitted. However, it is my opinion that neither the Act of 1931 nor the Act of 1933 contemplated the imposition of this tax upon a restaurant which buys fresh-water fish, cooks them and sells them to the public in such form. After a fresh-water fish is cooked, it becomes food, and a restaurant or cafe which has paid the license tax on cafes and restaurants would be entitled to sell such food without the payment of the license fee as imposed under the Act of 1933 on peddlers of fresh-water fish. Especially is this true, if the person selling the fresh-water fish to the restaurant in their raw and uncooked form has paid the license tax.
GAME AND FISH-Distribution of fines and forfeitures imposed for "violation of game and fish laws
October 11, 1934
Hon. Zack D. Cravey Commissioner, Game and Fish Dear Mr. Cravey:
I have your request for an opinion construing Section 36 of the Act of 1896 (Georgia Laws, 1896, p. 296) relating to the distribution of fines and forfeitures, and Section 4 of the Act of 1!)31 (Georgia Laws, 1931, p. 175) relative to the disposition of fines imposed for the violation of the Game and Fish Laws.
In Section 36 of the Act of 1896 creating the City Court of Elberton, it was provided:
"The judges of the City Court shall, before paying insolvent bills, approve the same and order them entered on the minutes of said court, and such bills for insolvent costs shall be a lien on said insolvent fund superior to all other liens." The question arises as to whether the solicitor and other officers of the City Court of Elberton have a lien upon the fines collected under the Game and Fish Laws above referred to, which provide: "Half of all money arising from such fines shall be remitted by the Clerk of the Court in which said case is disposed of, to the Commissioner of Game and Fish, for credit to the Game Protection Fund. The other half shall be paid by said clerk into the County Treasury. The clerk of the court in which each case is disposed of shall promptly disburse such fine or fines as herein set out and shall make a written report to the Game and Fish Commissioner showing the disposition of each case."

224
It is my opinion that the Act o 1931 relating to the disposition of fines arising under said Act approximates the provison of the Act , of 1896 insofar as it relates to fines or forfeitures imposed under the Game and Fish Laws, and that the Act of 1931, being a general law, governs as to the disposition of such fines.
GAME AND FISH-Game wardens have no authority to search automobiles to determine the presence of game without a warrant
November 19, 1934 Ron. Zack D. Cravey Commissioner of Game and Fish My dear Mr. Cravey:
This will acknowledge receipt of letter signed by your secretary, Mr. Geppert, under date of November 15th requesting an opinion as to the legality of a game warden searching automobiles to determine the presence of game for sale or illegally killed.
It is my opinion that such searches would be illegal unless the warden has a search warrant issued under the provisions of Penal Code Section 903. (Sec. 27-102, Code of 1933).
Paragraph 16, Section 1, Article 1 of our Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unlawful 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 persons or things to be seized." I feel that no search would be legal without first obtaining a warrant in compliance with this provision of the Constitution.
GAME AND FISH-Definition of "citizen" as applied to an applicant for an oyster lease or a commercial salt water fishing license
November 19, 1934 Hon. Zack D. Cravey, Commissioner Department of Game and Fish Dear Mr. Cravey:
This will acknowledge receipt of a letter under date of November 17th, signed by your secretary, Pat Geppert, enclosing the letter of Mr. A. M. Smith, Secretary, dated October 26th, 1934. Mr. Smith requests an opinion as to the proper construction of Paragraph 25, Section I, Article I of the Constitution of Georgia, and Civil Code Section 216I, with particular reference as to the term "citizen" and the proper interpretation of this term as applied to an applicant for an oyster lease or a commercial salt water fishing license.
Paragraph 25, Section I of Article 1 of the Constitution provides: "Citizens of the United States, resident in this State are hereby declared citizens of this State; and it shall be the duty of the

General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges and immunities due to such citizens." Civil Cede Section 2161 (Sec. 79-201 of 1933) provides: "All citizens of the United States resident in this State, are hereby declared citizens of this State." Civil Code Section 2158 (16) provides in part as follows: "It shall be lawful for the Tidewater Commission (Now the Commissioner of Game and Fish) to lease to any citizen of this State, . . . . portions of the oyster beds or bottoms, etc:" The Commissioner is given authority by this section to require all applications to be made "on blanks to be prescribed by the board," and sworn to by the applicant. Code Section 2158 (28) provides for the issuing of a license to fish in the salt waters of this State for commercial purposes and declares "No such license shall be issued to any person not a citizen of this State." Under this section, the Commissioner of Game and Fish is also given the authority to prescribe the form of the application blank which the applicant must sign under oath that he is a citizen of this State, if he applies for a resident license. It is my opinion that an applicant for an oyster lease or a salt water fishing license for commercial purposes must be a "citizen," possessing the same qualifications as to time of residence in this State as is required by law in the case of a person who seeks to qualify as a voter in a general election within the State. That is, the term "citizen" as used in these sections means a person who is a citizen of the United States and has resided within the State of Georgia at least one year next preceding the application for such license and in the county in which the application is made at least six months next preceding the date of the application. I think that it would be proper for the Commissioner of Game and Fish to prescribe a form and require an oath to be taken by the applicant which would show these facts before it would be incumbent upon the Commissioner to issue an oyster lease or a resident salt water fishing license to any applicant.
OFFICERS-Legality and effect of officers bond bill
April 11, 1933 Ron. Eugene Talmadge, Governor State Capitol My dear Governor:
I have your letter of April 6th requesting a ruling as to the legality and effect of Senate Bill No. 128, known as the bill regulating the liability and amounts of officers' bonds.
You state it has come t'o your attention that Senate Bill No. 128 contains no enacting clause; that no mention is made of the State of Georgia; that it contains no effective date; and has on its face no indication that the General Assembly of Georgia has passed such a measure.

The purpose of an enacting clause is to establish the Act and afford evidence of its legislative, statutory nature. The enacting clause is not necessarily only that phrase which purports to be the enacting clause, but comprehends each part of the Act which should be stated in order to define the subject of the enactment with clearness and certainty. Thus the phrase "enacting clause" may be said to have two meanings: (1) the part of the Act which sets forth the substantive provisions intended to be enacted in the law, and gives evidence of such legislative intent; (2) the form or style of the title which must be used, under constitutional requirements in the enactment of laws. The form of enacting clause in the latter sense is commonly in the words "be it enacted by the General Assembly of Georgia," or 'YOrds of similar import.
In this State there is no constitutional provision prescribing the form or style which must be used in the enactment of laws. The method of identifying the enactments of the General Assembly of .this State is prescribed in Article 3, Section 7, Paragraph 13 of the Constitution where it is required that
"all Acts shall be signed by the President of the Senate and the Speaker of the House of Representatives." It has been many times held by the courts of this State that where a duly enrolled Act, properly authenticated by the regular presiding officers of both houses of the General Assembly, is approved by the Governor and deposited with the Secretary of State as an existing law, it will be presumed that such an Act was enacted in accordance with the requirements of the Constitution. In such a case it is not permissible to show by the Legislative Journals, or other records, that the bill did not receive on its passage the requisite constitutional majority in each House or that there was any irregularity in its enactment.
Atlantic Coast LineR. R. Co. v.The State, 135 Georgia 545; DeLoach v. Newton, 134 Georgia, 739; Whitley v. State, 134 Georgia, 758. These rulings are but an extension of the doctrine enunciated by the Supreme Court of this State in the first case ever decided by that tribunal, Trulock v. Peeples, I Georgia, 3, in which it was held that every person is presumed to obey the mandates of the law and perform all of his official and social duties.
The courts will take judicial notice of who are the public officers of the State. Bailey v. McAlpin, 122 Georgia 616; Pollak Bros. v. Niall-Herin Co., 137 Georgia 23, 25; Abrams v. The State, 121 Georgia 170.
Senate Bill 128 to which you refer is signed by the Honorable Hamilton McWhorter, President of the Senate; by Honorable John T. Boifeuillet, Secretary of the Senate; Honorable E. D. Rivers, Speaker of the House, and Honorable Andrew J. Kingery, Clerk of the House. It also bears the signature of Your Excellency with the. date of the executive approval entered thereon. On its face it shows that it was read three times in the Senate on three separate days and passed by a vote of twenty-eight ayes to no nays; that it was read three times in the House on three separate days and passed by a

vote of one hundred three ayes to no nays; that it was received in the Executive Department by Honorable T. M. Linder, Secretary of that Department, on March 15, 1933. Under the authority above cited the courts would take judicial notice that the persons signing this bill were on the dates of the respective readings of the bill and on the date of the approval of the bill, officers of the General Assembly of Georgia, and of the State of Georgia, serving in their respective capacities. The courts will also take judicial notice that on the date of the approval of the bill Your Excellency was Governor of this State.
In my opinion these facts sufficiently identify the bill in compliance with the manner and method provided by the Constitution of this State for such identifications, as an enactment by the General Assembly of Georgia.
While the Bill contains no provision reciting "Be it enacted by the General Assembly of Georgia," and in this sense may be said to contain no enacting clause, the caption thereof does recite that it is an Act designed to accomplish the purposes therein set forth. Section I recites that "This Act is intended" to relate to certain subjects; Section 2 provides that words and phrases "used in this Act" shall have certain meanings; Section 18 provides that "The general provisions of this Act" shall have application as therein directed; Section 19 provides that "the provisions of this Act shall apply to existing bonds." Each of these quoted provisions gives evidence of the intent and purpose of the legislative body to enact a law, and in that sense may each be said to constitute an enacting clause.
The question here involved has never been adjudicated by the courts of this State. In Walden v. Town of Whigham, 120 Ga. 646, the court had under consideration an amendment to the charter of the Town of Whigham, authorizing the maintenance and operation of a dispensary. The amendatory act contained simply a caption and one section. That section was in the following language: "Be it further enacted that all laws and parts of laws in conflict with this Act are hereby repealed." The Supreme Court held that the Act in question did not authorize the Town of Whigham to construct and maintain a dispensary, although the caption of the act expressed. such an intention. The reason for this ruling, as stated by the Supreme Court, was that the proposed amendment amended nothing. This was because the amendatory act did not purport to state or declare anything to be law. This is the sense in which that act was without an enacting clause. The Whigham case has no application to Senate Bill No. 128 since that Bill is not without an enacting clause in the sense that the Whigham Bill was without an enacting clause. In the case of Flower v. Stone, 148 Georgia 125, the Whigham case was discussed and distinguished from the case then under consideration. It was there held that an enacting clause reading "be it enacted by the General Assembly" was sufficient. It will be noted that the enacting clause there made no reference to the State of Georgia.

There are a number of cases from other jurisdictions relating to the subject. Most of these cases deal with constitutional provisions prescribing the form and style of enacting laws and specifically setting forth what shall be contained in an enacting clause. In some jurisdictions it is held that these requirements are not mandatory but merely directory and that a failure to comply with such a requirement does not render a statute void. In most States in which it is held that such a constitutional requirement is mandatory, a substantial compliance with the Constitution is deemed sufficient.
In Watson v. Corey, 6 Utah 150, the Supreme Court of Utah had under consideration an act almost identical with Senate Bill No. 128 in so far as the form of the enactment is concerned. The court held:
"In the absence of a constitutional requirement, a law passed without any enacting clause is valid." The court, in stating the contentions of the parties, said: "The Act of the Legislature above referred to contains no enacting clause whatever, and the defendant insists that this invalidates the Act. They claim in that it does not appear upon its face to have been enacted by any authority. The original Act on file in the office of the Secretary of the Territory is signed by the presiding officers of the two houses and the Governor in the usual way."
Senate Bill 128 does not expressly state on its face that it is an enactment of the General Assembly of Georgia. It is, however, signed by the presiding officers of the two houses of the General Assembly of Georgia and approved by the Governor in the usual way. Although it contains no such enacting clause as is commonly inserted in bills, it does give ample evidence of the intent of a legislative body to enact a law, and is signed by the officers whom the courts will judicially recognize, as being at the time the President of the Senate and the Speaker of the House of the General Assembly of Georgia, and by the Secretary of the Senate and Clerk of the House of the General Assembly of Georgia. It is approved by Your Excellency, whom the courts judicially know was on that date the Governor of Georgia.
In 25 Ruling Case Law 776, the following general rule is laid down:
"Where there can be no doubt as to the authority by which a statute has been enacted, or as to the fact that it was intended by the Legislature to be a law, it can scarcely be the province of the courts to declare it invalid because of the absence of an enacting clause, if there is no constitutional requirement of such a clause." Under the ruling in the Utah case cited and under the general rule as laid down in Ruling Case Law, I am of the opinion that Senate Bill No. 128 was constitutionally and properly enacted by the General Asseinbly of Georgia, that these facts appear from the face of the bill as shown by the enrolled Act in the office of the Secretary of State, which has been approved by the Governor, and that it is a valid enactment and would be upheld by the courts.

Furthermore, subsequent to the passage and approval of Senate Bill 128 the General Assembly passed another Act, House Bill No. 100, entitled:
"To adopt and make of force the code of laws approved by the code commission appointed under resolution approved August (}.7, 1929; to provide for the inclusion in said code of all laws and resolutions of a general nature adopted since the completion of the manuscript of said code; to authorize the code commission to contract for the publication of said code and for the furnishing of copies thereof for the use of the officers of the State and for distribution thereof; and for other purposes." This Act was approved by the Governor on March 24, 1983, eight days after the approval of Senate Bill 128. By Section 1 of the Code Act, the Code of laws prepared under the direction of the Code Commission created by joint resolution approved August 27, 1929, is adopted and made of force as the Code of Georgia, having the effect of statutes enacted by the General Assembly of this State. Sections 2 and 3 of the Code Bill provide as follows: "Be it further enacted by the authority aforesaid that the said Code shall contain all acts and resolutions of a general nature and approved since the approval of the manuscript of said Code by the Code Commission, including all Acts and Resolutions of a general nature which have been or may be adopted and approved at the present session, all of said Acts and Resolutions to be properly placed and classified under the supervision of the Code Commission, said Commission being hereby given authority to place the same in the Code and to make whatever changes may be rendered necessary in the existing laws by the passage of any of said Acts and Resolutions." "Section 3. Be it further enacted by the authority aforesaid that the said Code of Laws shall go into effect on the proclamation of the Governor, made upon the completion of the publication and delivery of copies thereof as hereinafter provided to the State Librarian, and that it shall be known as the Code of Georgia of 1933." In my opinion the Code Bill expressly restates the purpose and intent of the General Assembly to enact all Acts and Resolutions of a general nature which had been approved subsequent to the ap~ proval of the manuscript of the Code by the Code Commission, including all such Acts and Resolutions which had been adopted at the 1933 Session of the General Assembly and approved by the Governor prior to the passage and approval of the Code Bill. See in this connection Water Commissioners v. Curtis, 87 Conn. 506. In my opinion, even if it could be held that Senate Bill 128 was itself invalid for lack of an enacting clause, the passage and approval of the Code Bill supplied any such deficiency and rendered Senate Bill 128 a valid statute.
It is further my opinion that Senate Bill 128 became effective from and after its approval by the Governor and that it is now a valid law of this State.

280
GENERAL ASSEMBLY-Senate not authorized to confirm nominations of executive appointees during ten-day session.
January 18, 1988
Ron. Eugene Talmadge, Governor Dear Governor Talmadge:
Your letter of January 17 requests an opinion upon the following questions:
Question 1. Under the provisions of the constitutional amendment proposed by the General Assembly and ratified by the votes of the people at the election of November, 1982, providing for a meeting of the General Assembly to convene on the second Monday in January, 1983, and biennially thereafter, and to continue no longer than ten days, can the Governor legally submit to the Senate for confirmation, during such ten-day session, nominations of executive appointees?
Answer. The Constitutional amendment referred to above provides that in the special ten-day session "the only business which shall be transacted thereat shall be the election of officers of the General Assembly and the organization of same; the inauguration of the Governor-elect, and other State-house officers, whose terms of office run concurrently with that of the Governor; the election or appointment of committees of each House; the election of the Governor and other State-house officers, in the event of no election by the people as under the present provisions of this Constitution; the decision of contested elections for Governor and other officers as under present provisions of the Constitution, and the introduction and first reading of bills and resolutions; the impeachment of public officers and trial thereof.
It is the opinion of this Department that the language quoted above restricts the General Assembly to the business therein specifically set forth. The consideration of executive nominations for confirmation is not specifically provided for by the amendment, and, therefore, the Governor would not be authorized to submit nominations during the ten-day session.
Question 2. Can the Senate legally receive such nominations at said special ten-day session?
Answer. In view of the construction of the amendment as above set forth, the Senate would not be authorized to receive executive nominations at the special ten-day session.
Question 3. Can the Senate legally act upon such nominations at said special ten-day session?
Answer. It is the opinion of this Department that the reception or consideration of executive nominations for confirmation by the Senate at the special ten-day session would be the transaction of business other than that specifically provided for by the amendment, and would be unauthorized.
Question 4. Has the Governor authority to withdraw a nomination submitted to the Senate for confirmation at any time before it is acted upon by the Senate?

231
Answer. It is the opinion of this Department that the Governor has authority to withdraw any nomination submitted to the Senate for confirmation at any time before it is acted upon by the Senate. Such is the reasonable construction of the language employed by the Supreme Court in l\Iilton v. Mitchell, 139 Ga. 614. Where any appointment is made as the result of a nomination by one authority and confirmation by another, the appointment is not complete until the action of all bodies concerned has been had, 46 C. J. 953, par. 68. Consequently, the nominating authority could withdraw any nomination prior to action being taken thereon by the confirming authority. This is true whether the nomination be made by the executive withdrawing it or by his predecessor in office, since the executive power of the Governor is a continuing power, knowing neither names nor persons, never ending, and not broken by succession. Milton v. Mitchell, 139 Ga. 614(4), 621.
Question 5. If such nominations are sent to the Senate by the Governor during the ten-day session, can the Senate take up such nominations subsequently during the regular session?
Answer. It is the opinion of this Department that any executive nomination submitted to the Senate during the ten-day session would not be properly before that body for consideration at the regular session following such special session. If, however, any such nomination should remain before the Senate, and should be confirmed by the Senate at the regular session, it is the opinion of this Department that such action on the part of the Senate would give rise to a presumption that at the time it was acted upon the nomination was legally before that body.
APPROPRIATIONS-Unpaid appropriations for 1928 to 1931 inclusive.
January 31, 1933
Hon. Eugene Talmadge, Governor My dear Governor Talmadge:
Your recent letter inclosing a communication from Hon. Hooper Alexander with reference to the unpaid appropriations for the years 1928, 1929, 1930 and 1931, is received.
The provision of the Civil Code to which Mr. Alexander refers is found in Section 228 (Sec. 4D-1101, Code of 1933) which prescribes the duties of the State Treasurer. This section provides, in part, in paragraph one, that State funds shall be paid out "only upon warrants of the Governor, when countersigned by the Comptroller General," excepting the drafts of the presiding officers of the two Houses of the General Assembly for sums due to the members and officers of their respective bodies. The section also provides, in part, in paragraph three, that the Treasurer shall keep a ledger of accounts, and "shall open in said ledger an account with each appropriation made by the General Assembly, and with each salaried officer of the State, in which he shall credit the object for which the

appropriation was made with the amount appropriated to the object, and shall charge such appropriation with the payments made
by him upon the same." Paragraph fifteen of this section, referred to by Mr. Alexander, is as follows:
"He shall not pay any appropriation due and not called for within six months after the expiration of the fiscal year for which it is appropriated, but it reverts to the general fund in the treasury." Paragraph 15 of Section 228 has never been the subject of judicial construction. It seems, however, to impose a limitation upon the authority of the .Treasurer. The question arises as to when an appropriation is "due" within the meaning of this paragraph. None of the provisions of Section 228 contemplates an appropriation in excess of revenue. The Treasurer is not authorized, except in the case specifically excepted by paragraph one of Section 228, to pay out any State funds unless the Governor issues his warrant therefor, and the warrant is countersigned by the Comptroller General. In Fletcher v. Renfroe, 56 Ga. 674, 677, the Supreme Court, speaking through Judge Blec1dey, said: "Appropriation casts no duty upon the treasurer to pay. His duty arises from the conjunct operation of the appropriation and the warrant. One is as indispensable as the other." In Gurnee & Co. v. Speer, Treasurer, 68 Ga. 711, it was held: "It does not become a ministerial duty on his (the Treasurer's) part to pay bonds of the State until an appropriation shall have been made for that purpose, an executive warrant issued and countersigned by the Comptroller General; and these are conditions precedent to the grant of a mandamus to compel payment by
him." Under these decisions an institution or agency of the State in
whose favor an appropriation has been made cannot, by mandamus, compel the Treasurer to pay the appropriation until the proper warrant has been issued by the Governor and countersigned by the Comptroller General. It might well be said, therefore, that an appropriation does not become "due" so far as the Treasurer is concerned, so that it can be "called for", until the Governor issues his warrant, and the warrant is duly countersigned.
Paragraph three of Section 228, so far as it relates to appropriations made to institutions, etc., simply provides a method of bookkeeping to be followed by the Treasurer. He is required to open an account with each person, institution, or agency, in whose favor an appropriation is made, crediting such institution or agency with the amount of the appropriation, and charging it with the amounts paid. Upon the expiration of six months from the end of the fiscal year for which the appropriation was made, any amount which remains on this ledger to the credit of such institution or agency, which has become "due" and has not been "called for" reverts to the general fund. Since the only way in which an appropriation can be "called for" is by the presentation to the Treasurer of a properly executed executive warrant, a reasonable construction of this clause might seem to be that the appropriation does not become "due" until such warrant is issued.

233
H such should be the proper construction of paragraph 15 of Section 228, then the unpaid appropriations for the years referred to, for which no executive warrants have been issued, are not lapsed under that provision.
As stated, there has been no judicial construction of this section, and any interpretation given to it in its application to the situation now existing must necessarily be based upon a state of facts which was never in the minds of the lawmakers, since it was never contemplated that there would be an excess of appropriations over revenue. We are now confronted with a condition never before existing. The six months clause manifestly was designed primarily to cover sufficient time to permit the collection of taxes for the fiscal year for which the appropriation was made.
At the 1929 session of the General Assembly, a resolution approved August 28, 1929, was passed by both Houses, upon a call of the yeas and nays in each House, and by the requisite constitutional majority. This resolution provides as follows:
"That the Governor and the Treasurer of said State be and they are hereby authorized and empowered to issue and pay warrants covering appropriations heretofore made by the General Assembly for the years 1928 and 1929 in full. That no limitations or lapsed appropriations shall exist against any unpaid balance of said appropriations. ''The Governor of this State and the Treasurer are hereby authorized, empowered, and directed to pay such unpaid balances in full of such appropriations for the years 1928 and 1929 out of any funds available in the Treasury from revenue now or hereafter provided by law." If the construction indicated above is the proper construction of Section 228, Par. 15 of the Code, this resolution was unnecessary. If the limitation imposed upon the State Treasurer by Section 228, Par. 15 of the Code should apply to appropriations made to institutions or agencies of the State which remained unpaid for lack of funds with which to pay them, a construction of this resolution would then be necessary. It may be that this resolution was designed to repeal Section 228, Par. 15 of the Code, in so far as it applied to appropriations for 1928 and 1929; or, the resolution might be construed, since it was passed by the requisite constitutional majority, and on an aye and nay vote in each House, to reappropriate such unpaid appropriations; or, (as Mr. Alexander suggests), it might be that this resolution had no effect whatever upon the unpaid appropriations for the year 1928, which may have already lapsed under the limitations embodied in Code Section 228. The appropriation bills enacted in 1929 for the years 1930 and 1931, and in 1931 for the years 1932 and 1933, each contain the provision quoted by Mr. Alexander, as follows:
"All appropriations made herein which shall become due and are not called for in writing or by requisition in writing upon the proper authorities within two months after the expiration of the fiscal year for which said appropriations were made, shall not be

paid by the State Treasurer, but shall revert to the general fund in the treasury." This provision refers to appropriations "not called for in writing or by requisition in writing upon the proper authorities within two months after expiration of the fiscal year." It is my understanding that it is the practice of the various departments to call upon the Governor, by requisitions in writing, for warrants upon the State Treasury to cover funds appropriated to them: The quoted provision of the appropriations bills enacted in 1929 and 1931 evidently relates to requisitions of this sort, and was not intended to affect the limitation of Section 228, Par. 15 of the Code, but to cause all appropriations to lapse at the end of two months after the close of the fiscal year, unless the institutions or agency to which the appropriation was made had filed with the Executive Department a requisition for the amount appropriated. If such requisitions were presented, and were not honored because of a lack of funds, such action would seem to meet the requirements of the limitation contained in the appropriation acts of 1929 and 1931. As I construe this limitation, it is directed against the agencies in whose favor appropriations were made, and is not a limitation upon the State Treasurer; it takes nothing from the limitation embodied in Section 228, but merely limits the time within which a department or agency of the State must make requisition for a warrant against the appropriation made to it. If requisitions were presented in conformity with this provision, it seems to me the situation would be the same as if such provision had not been enacted, and the question of whether the appropriation had lapsed under Section 228, Par. 15 would again be presented. With reference to the appropriations bill passed in 1931, for the years 1932 and 1933, there was a further provision, with which you are doubtless familiar, which in substance provided that the appropriations therein made which might be in excess of the revenue for the year for which such appropriations were made should abate to the extent that the appropriation exceeded the revenue. Under this provision, there is and can be, no deficit for 1932 or 1933. It seems to me that to hold that an appropriation which there was no revenue to pay, and which could not be "called for" at the Treasury because of that fact, would lapse under the provision of Section 228, Par. 15 of the Code, upon the expiration of six months after the end of the fiscal year for which the appropriation was made, would be a harsh construction of the law. Especially is this true when consideration is given to the fact that the institution in whose favor the appropriation was made had no remedy whatever by which it might seek to collect the amount appropriated. I seriously doubt if such a construction would be the proper one, and I feel sure no such construction was in the minds of the lawmakers when this section of the Code was adopted.
The legal status of these unpaid appropriations does not seem to me to be open to argument. They certainly do not constitute debts of the State. Whether they constitute moral obligations of the State

235
would depend entirely, in my opinion, upon whether the institution in whose favor any such appropriations were made had itself contracted obligations upon the faith of the appropriation.
The matter is one which, in any view, is highly doubtful. It is also one about which there has been, and doubtless will continue to be, much agitation. There is so much doubt upon the subject that, in my opinion, the only way to ever finally settle the matter is for the General Assembly, if it should deem it proper to do so, to specifically re-appropriate such of these sums as may be deemed necessary and proper, and expressly cancel the remaining unpaid appropriations.
AGRICULTURE-"Irrigation" is agricultural purpose within meaning of Emergency Relief and Construction Act of 1932.
February 3, 1933 Hon. Eugene Talmadge, Governor Dear Governor Talmadge:
I acknowledge receipt of your letter of January 31st, in which you make inquiry as to whether or not regional agricultural credit corporations may include in loans to farmers funds needed for irrigation for making crops.
The Emergency Relief and Construction Act of 1932, Title II, Section 201 (e), provides that the Reconstruction Finance Corporation is authorized to create regional agricultural credit corporations, and that "such corporations are hereby authorized and empowered to make loans or advances to farmers and stockmen, the proceeds of which are to be used for an agricultural purpose (including crop production), or for the raising, breeding, fattening or marketing of livestock, ...."
You inquire as to whether or not needed irrigation is an "agricultural purpose" within the meaning of the statute above quoted. In my opinion, where needed for the purpose of producing crops, suitable artificial irrigation is as much an agricultural purpose as fertilizer or cultivation.
The question is analagous to the question which often arises under statutes providing a lien for necessary supplies furnished to make crops, and the Courts have uniformly held that such things as are in their nature appropriate and necessary to the successful cultivation of crops are necessary supplies. Thus it has been held that groceries, fertilizers, stock, tools, and other things of this character necessary for successful crop production come within such a statute. A large number of cases on this point are collected in Volume 2, Corpus Juris, page 1007. 'Vhere reasonably necessary, and where it may be obtained at a reasonable cost, not out of proportion to the value of the crop which may be expected to be produced, I think clearly artificial irrigation would come within the term "agricultural purpose", as used in the statute referred to.

286
APPROPRIATION-General Assembly may constitutionally appropriate funds to defray cost of a Georgia Exhibit at Exposition to be held in Chicago, Illinois.
March 9, 1938
Hon. Eugene Talmadge Governor
Dear Governor Talmadge: Referring to your request for an opinion as to whether or not the
General Assembly may constitutionally appropriate funds for the purpose of defraying the cost of a Georgia Exhibit at A Century of Progress International Exposition to be held in Chicago, Illinois, June 1, 1933, I beg to advise as follows:
The Constitution of this State by Article 7, Section 1, Paragraph 1, provides that:
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only: For the support of the State Government and the public institutions; For educational purposes, and instructing children in the elementary branches of an English education only; To pay the interest on the public debt; To pay the principal of the public debt; To suppress insurrection, to repel invasion, and defend the State in time of war." This paragraph further provides for the levying of taxes to pay pensions, etc. It is provided by Article 3, Section 7, Paragraph 22, of the Constitution that: "The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State." In my opinion, under the last quoted provision of the Constitution the General Assembly may appropriate funds belonging to the State for the purpose indicated, provided the funds thus appropriated are not paid from taxes. In my opinion, the expense incurred in preparing and transporting an exhibit to the exposition at Chicago, is not a purpose for which the General Assembly may constitutionally levy a tax. However, there is no inhibition against the General Assembly making an appropriation for such purpose, and if provision is made for payment of the appropriation out of funds derived from sources other than taxation, in my opinion, the appropriation will be legal and valid. The inspection fees derived from the sale of fertilizer tags and inspection fees derived from other similar sources, which are not taxes, might lawfully be used for this purpose. In this connection, it may be noted that by a resolution approved December 12, 1894 (Ga. L. 1894) an appropriation of $17,500.00 was made for an exhibit at the Cotton States and International Exposition held at Atlanta during September, October, November

and December, 1895. By a resolution approved August 17, 1903, (Ga. L. 1903, p. 697) $30,000.00 was appropriated for an exhibit at the Louisiana Purchase Exposition at St. Louis, Missouri. By resolution approved August 16, 1906, (Ga. L. 1906, p. 1138) an appropriation of $30,000.00 was made for an exhibit at the Jamestown Ter-centennial Exposition at Hampton Roads, Virginia. These appropriations were made out of general funds.
GOVERNOR-Constitutionality of House Bill No. 59 providing for scale of mileage, etc. for State officials and employees
April 4, 1933 Hon. Eugene Talmadge, Governor My dear Governor:
I have your letter of April 3rd requesting an opinion as to the constitutionality of Section 9,%' of House Bill No. 59 which said section reads as follows:
"All officials and employees of State and departments thereof shall not under any condition be paid any subsistence and hotel or board allowance in excess of $2.50 per day when actually away from his place of abode and when in actual service of the State." The caption of this Act reads as follows: "To prohibit the purchase of any passenger automobile by any department, institution, bureau or agency of this State; to provide for disposition of State-owned automobiles; to provide for payment of mileage for officers, officials and employees of the State and of various departments thereof for the operation on official business of automobiles belonging to such officers, officials or employees; to provide for the fixing of such mileage rate; to provide penalties for violation of this act and for other purposes." Article 3, Section 7, Paragraph 8 of the Constitution of Georgia provides that: "No law or ordinance shall pass which refers to more than one subject-matter or containes matter different to what is expressed in the title thereof." It will be noted that the caption of House Bill No. 59 contains at the end thereof, the words "and for other purposes." In Storey v. Town of Summerville, 158 Ga. 182, 186, the Supreme Court had under consideration the foregoing provisions of the Constitution and held as follows: "This court has repeatedly held that where the caption of an Act contains the words 'and for other purposes', this language will authorize any legislation which is germane to the general purpose of the Act." The question, therefore, is whether Section 9,%' is germane to the general purpose of the Act. The general purpose of the Act as expressed by the General Assembly in the caption was (1) to prohibit the purchase of passenger automobiles by the State; (2) to provide for the disposition of

!!SS
State-owned automobiles; (3) to provide for the payment of mileage to employees of the State for the operation on official business of automobiles belonging to such employees; (4) to provide for fixing such mileage rates; (5) to provide penalties for violation of the Act.
Neither of these expressed purposes makes any reference to the subsistence of employees and officials while traveling on business for the State. The express purpose of providing mileage for employees and officials is limited to such mileage "for the operation on official business of automobiles." This clause of the caption does not express a purpose to provide for the traveling expenses of the employees and officials, but expresses the purpose to provide for mileage for the operation of automobiles on official business.
Section 9~ of the Act is not limited by its terms to employees or officials traveling in automobiles, but by its terms applies to all officials and employees, however they may travel, when actually away from their place of abode and when in actual service of the State.
In my opinion Section 9~ of this Act is not germane to the general purpose of the Act as expressed in the title, and is not germane to any purpose of the Act as expressed in the title, but is wholly foreign to the general purpose of the Act which relates only to prohibiting the purchase of automobiles, to selling those now owned, and to providing for mileage for employees operating their own automobiles in the State's service.
For these reasons Section 9~ of this bill is in my opinion in violation of the provisions of the Constitution above quoted. See in this connection: Smith v. State, 161 Georgia, 103; McDuffie v. State, 87 Georgia, 687; National Bank of Augusta v. South!!rn Porcelain Manufacturing Company, 55 Georgia, 36; Crab v. State, 88 Georgia, 584; Elliott v. State, 91 Georgia, 694.
I agree fully with your interpretation of this Act, and like you, am of the opinion that Section 9~ is unconstitutional.
I am sending a copy of this ruling to Honorable Tom Wisdom, State Auditor, as you requested.
GOVERNOR-Disposition of rentals of Western and Atlantic Railroad.
April 4, 1933. Hon. Eugene Talmadge, Governor My dear Governor:
In reply to your letter of yesterday, in which you request me to give you a ruling on the proper distribution of the $540,000.00 that was paid over from the Highway Department on April 1st into the treasury, and in which you state that you are of the opinion that this goes for the payment of the Confederate Pensions and past due unpaid appropriations pro rata after writing off all unapplied appropriations in accordance with the General Appropriation bill passed at the recent session of the Legislature, I wish to advise as follows:

I. I concur with you in your construction and interpretation of the law as to the proper distribution of this money.
2. The Act of the General Assembly of 1931 which authorized, empowered and directed the Governor to assign and set apart the rentals of the Western & Atlantic Railroad for certain periods therein named as special treasury funds and which provided for placing the proceeds arising from the sale of all of said warrants in the treasury, also specifically providing for the expenditure of said proceeds.
Section 6 of the Act (Acts 1931, p. 264), is as follows: "The Governor is further authorized, empowered, and directed to place within the general treasury and to use and expend the entire proceeds arising from the sale of said warrants to the State Highway Board, as said proceeds are received by the Governor, in paying and discharging, in so far as the entire amount of said proceeds will permit, the unpaid balances of all appropriations made by the General Assembly during the regular sessions of said Assembly for the years 1927 and 1929 and during the extraordinary session of 1931. The said unpaid balances of the said appropriations shall be paid on a pro rata basis as determined at the times payments of said proceeds are made by the Governor." Section 26-a of the General Appropriation Bill of 1933 is as follows: "All unpaid appropriations for the years prior to 1932 made under the General Appropriations Acts, approved August 23, 1927, August 30, 1929, August 28, 1931, and the Acts approved August 28, 1929, appropriated for a new building for the Milledgeville State Hospital are hereby repealed, in the amount of the excess of such unpaid appropriations to any department or institution over the amount of the indebtedness on December 31, 1932 of such department or in!)titution, and provided that the appropriations for common schools and for the payment of pensions shall not be affected by the provisions of this Section."
In order to arrive at the proper method of distributing the $540,000.00 paid by the Highway Department on April 1st into the Treasury under the authority of Section 5 of the Act of 1931 referred to, (Acts 1931, p. 263), Section 6 of said Act and Section 26-a of the General Appropriations Bill of 1933, above quoted, will necessarily have to be construed together.
Section 6 of said Act provides: "The unpaid balances of the said appropriations shall be paid on a pro rata basis as determined at the times payments of said proceeds are made by the Governor."
By the provisions of Section 26-a of the General Appropriations Bill, above quoted, all unpaid appropriations for the years prior to 1932 made under the General Appropriations Acts of 1927, 1929, and 1931, referred to in said section were repealed in the amount of the excess of such unpaid appropriations, over the amount of indebtedness of any department or institution on December 31, 1932. The appropriations for common schools and for the payment

!!40
of pensions are not affected by the provisions of said Section 26-a. Therefore, the fund referred to, to wit, $540,000.00, should, in my
opinion, be applied pro rata to the payment of (1) unpaid appropriations for common schools; (2) on the payment of unpaid appropriations for pensions; (3) on payment of indebtedness as of December 31, 1932, of any department or institution where such indebtedness is less than the balance of the unpaid appropriation due to any department or institution. The indebtedness to be the basis on which the fund would be appropriated where the indebtedness is less than the balance of the unpaid appropriation to such department or institution; (4) where such indebtedness of such department or institution exceeds the amount of the unpaid appropriation, then, in that event, the basis on which said fund is to be ~pro rated would be the unpaid appropriation rather than the indebtedness of such department or institution.
In my opinion, the said sum should be so distributed, pro rata on the basis set forth in the preceding paragraph and in the proportion that said items above numbered, of any department or institution, bears to the total amount of $540,000.00, the sum to be pro rated and paid.

GOVERNOR-Ducktown Chemical and Iron Company

May 11, 1933

Hon. Eugene Talmadge, Governor

My dear Governor:

I have your letter of the lOth inclosing a report filed with you by

the Ducktown Chemical and Iron Company submitting tabulation

of data setting forth daily emissions of sulphur from their plant

during the period from April lOth to April 30th, 1933, and you ask

what disposition to make of the matter.

As a matter of history, the State of Georgia, a good many years

ago, brought original suits in equity in the Supreme Court of the

United States against the Tennessee Copper Company and against

the Ducktown Chemical and Iron Company, or the Ducktown Sul-

phur, Copper and Iron Company, Ltd., as it was then known, which

suits sought to enjoin these companies from discharging sulphur

dioxide gases into the State of Georgia. The operations of these

companies had resulted in a vast amount of damage to the people

in the North Georgia Counties near their plants.

.

The Supreme Court of the United States sustained the State's

right to an injunction, and following the judgment of that Court

certain contracts were entered upon between the State and these

companies whereby the' damages which resulted to Georgia citizens

from the operations of the plants were to be arbitrated and the two

companies were to pay in so much money each year to pay these

damages. This contract has been renewed from time to time. By a

resolution approved July 27, 1921, (Georgia Laws 1921, page 1206),

provision was made for a new contract for a period of five years.

This resolution provides that the daily escapage of sulphur dioxide

241
gases from the plant of the Tennessee Copper Company shall be not in excess of 88 tons and from the plant of Ducktown Company not in excess of 40 tons, during the growing season, provided for in the contracts, being from April lOth to October 1st of each year. This contract expired and was renewed under a resolution approved July 24, 1925. Under the contract and under the resolution there is an arbitrator on behalf of the State who receives a salary not exceeding $100.00 a month, to be audited and allowed by the Governor, while actually engaged in the work. All of the expense is paid by the two companies involved. I am advised that from time to time claims are submitted to the Governor and are referred to the State's arbitrator and the arbitrator of the companies for adjustment. I am also advised that no claims were allowed during the year 1932. I have not access to the contracts, but they are of file in your office. I presume they contain a condition requiring these companies to submit monthly statements showing the daily escapage of sulphur dioxide gases during the growing season from April lOth to October 1st of each year.
The statement forwarded to me seems to cover the month of April so far as the Ducktown Company is concerned. These statements should be filed in your office for the use of the arbitrators in considering any claims which may be filed.
In this connection I might also state that the contract executed in pursuance of a resolution of July 24, 1925, ran for five years, but contained a provision whereby it was to continue in operation after its expiration until at least six months previous notice in writing by either party of its intention to terminate was given. The contract is now operative under this provision.
In this connection I will state that the Clerk of the United States Supreme Court called on me for information about this matter, stating that the Court is desirous of having the case stricken from the docket if it is not now active. I have informed the Clerk of the present status of the matter and he has advised me that the case has been continued until the next term of the Supreme Court of the United States. At the next session of the General Assembly some provision should be made whereby a permanent contract can be entered upon so that this case may be discharged by the Supreme Court of the United States. It is my purpose to undertake to hold the case in its present status, if possible, until the General Assembly can make some such disposition of the matter. If the Supreme Court of the United States should dismiss this case, I seriously doubt if it would be possible to again obtain an injunction, since the facts upon which the original suit was based no longer exist. So far as I am advised, the damage which has resulted to citizens of Georgia from the operations of these plants during the past several years has been very slight.
I have given you the above history in order that you may be fully acquainted with the matter. You will find a complete record of all the proceedings in the files of the Executive Department. As stated, I think this statement from the Ducktown Company should simply be filed for future reference.

242
SOLICITOR GENERAL-Fees for appearing in Supreme Court where certiorari from Court of Appeals pending
May 15, 1933
Hon. Eugene Talmadge, Governor
My dear Governor: I have your letter of the 12th instant, enclosing a communication
from Honorable Chas. H. Garrett, Solicitor General, Macon Judicial Circuit, in which he requested payment of a fee for his services in appearing before the Supreme Court on the hearing of questions certified to that Court by the Court of Appeals in the case of Blanton T. Webb v. The State, pending in the Court of Appeals.
You request an opinion as to whether or not the Governor is authorized to compensate the Solicitor General for his service.
The fees of Solicitors General are fixed by Section 328 of the Civil Code, (Sec. 24-2904, Code of 1933), and by Section 1126 of the Penal Code, (Sec. 92-7109, Code of 1933). The section of the Penal Code referred to provides for fees in all of the cases enumerated by Section 328 of the Civil Code. The Penal Code section fixes a schedule of fees for Solicitors General, including per centum for plain collections for the State, and a per centum for litigated collections for the State. It then provides "for services in cases not mentioned, where the State is an interested party, at the discretion of the Governor, not exceeding $50.00."
This section further provides a schedule of fees for the services of a Solicitor General in the Supreme Court. The schedule fixed for the Supreme Court applies also to cases in the Court of Appeals.
I am enclosing copy of a letter written to Mr. Garrett on the date of April 4th, in which I furnished him my opinion that he was not entitled as a matter of right to a fee for his services before the Supreme Court on questions certified to that court by the Court of Appeals in a criminal case pending in the Court of Appeals. This opinion was based on the facts as stated in a letter to Mr. Garrett, that when questions are certified to the Supreme Court by the Court of Appeals, the case does not go to the Supreme Court by virtue of any action of the parties but solely _by reason of a desire of the Court of Appeals for instruction upon a question or questions involved in the case; that it does not constitute a separate case from the case in the Court of Appeals, but the proceeding in the Supreme Court is merely ancillary to the case pending in the Court of Appeals, which continues to be a pending case in the Court of Appeals during the time the Supreme Court is considering the questions certified to it. As a matter of practice when a case is certified to the Supreme Court by the Court of Appeals the briefs which have been filed in the Court of Appeals are transmitted to the Supreme Court with the record and the certified questions. The case is then assigned for argument in accordance with the constitutional provision that when cases are so certified the Supreme Court shall afford the parties an opportunity to be heard. It is not necessary for either party to appear before the Supreme Court and it is not necessary for either party to file

248
briefs in the Supreme Court. The case is not subject to dismissal by the Supreme Court on account of any failure to file briefs and counsel are not subject to citation for contempt in case they fail to appear.
For these reasons it was my opinion that in appearing before the Supreme Court on such certified questions a Solicitor General is not engaged in prosecuting a case before the Supreme Court within the meaning of the section of the Code prescribing fees for such services.
However, the opinion furnished Mr. Garrett did not deal with the question of whether or not the Governor might, in his discretion, compensate a Solicitor General for services rendered in appearing before the Supreme Court on the hearing of certified questions.
It will be noted that the quoted provision of Section 1126 of the Penal Code is a part of a Code section which fixes a schedule of fees, both for litigated cases and for matters which may or may not be litigated, such as plain collections for the State. In my opinion, therefore, the meaning of this quoted provision is that the Governor may, in his discretion, require a Solicitor General to render services in connection with any legal matter in which the State is an interested party, whether an actual case pending in court or not, and may, in his discretion, compensate the Solicitor General in a sum not exceeding $50.00 for such services.
When a Solicitor General appears before the Court of Appeals in a case carried to that court from a trial court, and files a brief, he has performed, so far as that case is concerned, all of the duties required of him by law, and is thereupon entitled to the fee prescribed by law in such cases to be paid by the State in the event the defendant is insolvent. If the Court of Appeals certifies the case to the Supreme Court the Solicitor General is not required to appear before the Supreme Court on the hearing of the certified questions. If it should be necessary for him to so appear, the services thereby rendered, in my opinion, would be an extraordinary service over and beyond the service required of him in order to earn the fee prescribed by law for his appearance in the Court of Appeals. If such extraordinary service is rendered, in my opinion, such service would be "services not mentioned" as contemplated by Section 1126 of the Penal Code, and the Governor would be authorized, in his discretion, to compensate the Solicitor General for such additional and extraordinary services to an amount not exceeding $50.00. However, it is further my opinion that the phrase "services not mentioned" contemplates services which the Solicitor General is required or directed by the Governor to perform, and not merely those services which he is not required, either by law or by executive direction, to perform, and which he may or may not perform in the exercise of his own discretion. In other words, it is my opinion that before the quoted provision of Section 1126 can have application, there should be some authorization in advance from the Governor to the Solicitor General for the rendering of such services, or the circumstances should be such as the Governor might afterwards determine were sufficient to require immediate action by the Solici-

tor General in advance of securing such authorization. In other words, I think the discretion to be exercised by the Governor in these matters relates to whether or not the service shall be rendered as well as to the amount of compensation to be paid.
I am not familiar with the practice which has obtained in the past with reference to these matters. However, I do not think it was contemplated by the statute that a Solicitor General should as a matter of right be entitled to such sum as the Governor, in his discretion, might deem adequate for appearing before the Supreme Court on the hearing of certified questions. It might in many cases be wholly unnecessary for the State to be represented before the Supreme Court in such matters. On the other hand, the gravity of the case or the importance of the questions involved might be sufficient to require such representation.
EDUCATION-Qualifications of members of County Board of Education
May 26, 1988
Hon. Eugene Talmadge, Governor
Dear Governor: I am in receipt of your communication of the 20th inclosing a letter
from Mr. W. W. Cooper of Flowery Branch, Georgia, and a letter from Dr. M. D. Collins, State Superintendent of Schools.
Mr. Cooper wrote you with reference to the possible disqualification of a member of the County Board of Education of Hall County recently nominated by the grand jury. He states that this gentleman is a teacher in the public schools of the county and that some question has arisen as to whether or not he is qualified to serve as a member of the Board of Education.
The Act of 1919 (Michie's Code, Sections 1551 (82) and 1551 (88)) provides the method of selecting members of the County Board of Education and their qualifications. These sections are as follows:
"The grand jury of each county (except those counties which are under a local system) in this State shall, from time to time, select from the citizens of their respective counties five free holders, who shall constitute the County Board of Education. Said members shall be elected for the term of four years, and shall hold their offices until their successors are elected and qualified, provided however, that no publisher of school books, nor any agent of such publisher, nor any person who shall be pecuniarily interested in the sale of school books, shall be eligible for election as members of any Board of Education or as County School Superintendent; provided further, that whenever there is in a portion of any county a local system having a Board of Education of its own, and receiving its pro rata of the public school fund directly from the State School Superintendent, and having no dealings whatever with the County Board of Education, then the members of the County Board of Education of such county shall be selected from

that portion of the county not embraced within the territory covered by such local system. "The County Board of Education shall consist of five (5) members as now provided by law and selected by the grand jury as now provided by law, except that the grand jury in selecting such members shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality, nor shall they select any person who resides within the limits of a local school system operated independent of the County Board of Education but shall apportion members of the Board as far as practicable over the county; they shall select men of good moral character, who shall have at least a fair knowledge of the elementary branches of an English education and be favorable to the common school system. Whenever a member of the Board of Education moves his residence into a militia district where another member of the Board resides, or into a district or municipality that has an independent local school system, the member changing his residence shall immediately cease to be on the Board and the vacancy shall be filled as required by law." Neither of these sections renders a person who is a teacher in the public schools of a county ineligible for election to the Board of Education. I know of no other provision of law or public policy which would render a teacher in the common schools ineligible for membership on the County Board of Education. As I see it, there is no question of dual agency involved, and a teacher in the public schools is not a county officer or public officer. The only possible conflict would arise in case the Board of Education should desire to contract with the teacher for a continuance of his services as teacher. In any such event, of course, the member of the County Board could not vote or otherwise participate in the making of the contract with himself. A teacher in the common schools is not an agent of the County Board of Education. The power of removal of the County Board of Education is vested in the Judge of the Superior Court, and not in the Governor. The Judge of the Superior Court is authorized to remove any member of the board "on the address of two-thirds of the grand jury" for certain causes defined by the Act of 1919 (Michie's Code, Section 1551 (85) ).
I am sending copies of this letter to Dr. Collins and Mr. Cooper.
SOLICITORS-GENERAL-Bonds
May 81, 1988 Ron. T. M. Linder, Secretary Executive Department Dear Mr. Linder:
Referring to your conversation of yesterday with Mr. Murphy with reference to the bonds of solicitors general, I beg to advise as follows:

Section 4922 of the Civil Code of 1910, (Sec. 24-2902, Code of 1988) with which you are doubtless familiar, requires solicitors general to:
"Give bond and surety as is required of the solicitor, who, by virtue of his office, is Attorney General." This section of the Code seems to have been embodied for the first time in the Code of 1861, which became effective January 1, 1868. I have made some investigation and have been unable to find an Act of the Legislature on the subject. However, the Code of 1861 was an adopted code, and this provision had the force and effect of an Act of the General Assembly. At that time the State had no regularly elected Attorney General but it was provided by Section 841 of the Code of 1861 that the solicitor general of the circuit which embraced the seat of the State government should be Attorney General. Section 842 'of the Code of 1861 required the solicitor general of the circuit in which the Capitol was located, and who was ex officio Attorney General, to give bond in the sum of $10,000.00. Section 847 of the Code of 1861 is identical with Section 4922 of the Code of 1910 and requires each solicitor general to give such bond and surety "as is required of the solicitor, who, by virtue of his office is Attorney General." The same section is contained in the Code of 1878 as Section 878; in the Code of 1822 as Section 878; and in the Code of 1895 as Section 4888. Prior to the adoption of the Code of 1861, there was statutory provision for an Attorney General and for solicitors general. By the Act of December 20, 1828 the Attorney General and the solicitors general were required to give bond. This Act is contained in Cobb's Digest of 1851 at page 1027. The Constitution of 1868 created the office of Attorney General as a constitutional office. This constitutional provision repealed Section 841 and 842 of the Code of 1861. The Constitution of 1868 did not require the Attorney General to make bond. There was no such requirement in the Constitution of 1877 and the law does not now require the Attorney General to make bond. It seems, therefore, that all of the provisions of law relating to a bond of the Attorney General have been superseded by the Constitution of 1868 and the Constitution of 1877. The only provision of law with which I am familiar which relates to bonds of solicitors general is Section 4922 of the present Code quoted above. Since that section requires the solicitors general to give such bond as is required of the solicitor, "who, by virtue of his office, is Attorney General," and since there is now no such officer, it seems that the law no longer requires that the Attorney shall give any bond at all, and since Section 4922 of the Code has been superseded by the Constitution of 1877, it is no longer of force. Certainly there is no longer of force any provision of law fixing the amount of the bond of solicitors general.
If the solicitors general desire to make bond, and are willing to do so, certainly no harm could result from allowing them to make bond as required by Section 4922 and the retention of Section 4922 in the

247
Code of 1910 might seem to evidence the legislative intent that solicitors general should give bond. However, since there is no longer of force any provision of law fixing the amount of the bond I believe the Governor would have the right to reduce the amount below $10,000.00.
SOLICITOR'S FEES-Where case transferred from one county to another
June 2, 1988 Hon. Eugene Talmadge, Governor My dear Governor:
This letter is in reply to yours of May 80th requesting that I give you my opinion as to whether the certificate signed by the Clerk of the Superior Court of Randolph County covering solicitors' fees in cases transferred under date of May 16th from Randolph to Terrell County is properly signed by the Clerk of the Superior Court of Randolph County or whether it should be signed by the Clerk of the Superior Court of Terrell County.
The law relative to this matter is found in Penal Code Section 1128, (Sec. 24-2906, Code of 1983), and the provisions of that section dealing with certificates of this kind are as follows:
"The fees of the solicitors, for services rendered in the Supreme Court, shall be paid by the State, on the warrant of the Governor, in all cases when the solicitor shall present the certificate of the clerk of the Supreme Court as to services; and of the clerk of the superior court to the fact that the defendant was acquitted, or was unable to pay the costs." In the case of Johnston v. State, 118 Ga. 310, it was held: "After the transfer the clerk of the court of the county to which the case is sent performs all the duties required of the clerk in such a case." And in the case of In Re Kenan, Solicitor General, 109 Ga. 819, it was held, in the fourth headnote: "Unless a solicitor general presents to the proper officer a certificate of the Clerk of the trial court, that each plaintiff in error in a bill of exceptions is insolvent, he is not entitled to receive compensation from the state for services performed in this court (Supreme Court), in connection with such bill of exceptions." And on page 109 Justice Fish said: "If a defendant is convicted, no fee can be paid the solicitor unless he presents a certificate from the Clerk of the trial court that the defendant is insolvent . . . . He should present a certificate from the Clerk of the trial court that each plaintiff in error in the bill of exceptions is insolvent." The words ''trial court" as used in the above decisions, in my opinion, refer to the court where the defendant was tried. In the case now under consideration, had the defendant been acquitted, of course, the Clerk of the Superior Court of Terrell County would be the only clerk who could certify to that fact. The

~48
defendant in this case was not acquitted and the purpose of the certificate is primarily to show insolvency. The pauper's affidavit was filed with the court papers, which now remain in the clerk's office in Terrell County. The Clerk there may not be in position to certify as to the insolvency of the defendant unless and until the fact of insolvency has been made to appear to him.
Should the Clerk of Terrell Superior Court not be satisfied of the insolvency of the defendant, he can issue a fi. fa. and turn the same over to the sheriff for collection. If the sheriff fails to collect, he could require the entry of nulla bona on the fi. fa., and would have the right to. require the solicitor to submit other proof of the insolvency of this defendant and after he had been satisfied it would be his duty to certify it.
After a case is transferred, all further proceedings shall be conducted as if said cause were originally commenced in the court to which the same was transferred.
After the transfer of this case from Randolph Superior Court to Terrell Superior Court, I am of the opinion that the Clerk of Randolph Superior Court could not thereafter perform any of the duties in connection with the entire matter. Therefore, I think that the certificate referred to should be signed by the Clerk of the Superior Court of Terrell County. I think that this is the clear and expressed intention of the law.
I am returning herewith the certificate of the Clerk .of the Court of Appeals, together with the certificate of the Clerk of the Superior Court of Randolph County.
TAXATION-Commissions of retiring tax collector in uncollected taxes
July 19, 1988
Hon. Eugene Talmadge, Governor
My dear Governor: Your letter of July lith, with reference to Mr. M.A. Evans, re-
tiring Tax Collector of Jefferson County, is acknowledged. You request that I give you an opinion as to the rights of Mr.
Evans as retiring Tax Collector, with reference to the uncollected taxes.
Prior to the recent Act of the Legislature in approving and enacting Senate Bill No. 128, which is now found in the Acts of the General Assembly 1933, page 78, et seq., the law of this State relative to the rights of outgoing Tax Collectors was as is embodied in Code Section 112, (Sec. 92-4703, Code of 1933) the pertinent provisions of which are as follows:
"Provided, that where the Tax Collector of any county is succeeded by another, the outgoing Collector shall make final settlement with the State and County for the taxes levied and chargeable for the year for which he was elected, and for the collection of which he has given bond; the incoming Collector being charged

249
and responsible only with the collection of taxes due for the years for which he is chosen and bonded." . The above quoted provisions apply only where the Tax Collector of any county is succeeded by another and has no application, of course, where the Tax Collector is succeeded by himself. This was held in the case of Fidelity and Deposit Company of Maryland v. State of Georgia, et al, 148 Ga. 545. The case was in the Supreme Court upon certified questions from the Court- of Appeals, and the decision of that Court will be found in the case of Fidelity and Deposit Company of Maryland v. State of Georgia, et al, 23 Ga. App. 132. In the course of the opinion, Justice George, speaking for the Supreme Court said: "The liability of his (the Tax Collector's) sureties was in all respects the same as the liability of the Tax Collector himself . . . . The liability of the sureties is limited to a breach of official duty by the principal. It was not, prior to the passage of the Act of 1898, any part of the official duty of the Tax Collector, after his term of office had expired and after his successor had qualified, to collect the taxes due the State and County, which had been levied, and which had accrued before the expiration of his term of office. The Act of 1898 made it the duty of the Tax Collector only where he is succeeded by another, to make final settlement with the State and County for the taxes levied and chargeable for the year for which he was elected, and for the collection of which he has given bond. The incoming Tax Collector is by that Act relieved of this duty of collecting such taxes only where he succeeds another.''
It will, therefore, be seen from the above that the law of this State prior to the Act of 1933 clearly imposed upon the Tax Collector the legal duty to collect and make final settlement with the State and county thereon all taxes levied and chargeable for the years for which he was elected, and for the collection of which he had given bond.
I will now consider the Act of the General Assembly of 1933 for the purpose of ascertaining just what changes were made in this law by that Act.
The Act of 1933 will be found beginning on page 78 and ending on page 97. The pertinent provisions of this Act bearing on the question here involved are as follows:
Quoting from Section 2, page 79: "The words 'collecting officer' shall include not only State and County Tax Collectors and Revenue Agents, but also each and every other person who shall be either generally or specifically elected, appointed or employed, in whole or in part, to collect on behalf of the State or any of its political subdivisions, or any Board, commission, bureau or department thereof, any tax, revenue or other monies." Quoting from Section 10, page 90: "Annually, on or before April 20th of each year, unless other time be extended by the Comptroller General for cause which

!l50
said Comptroller General shall deem to be sufficient, each Tax Collector shall make and file an accounting with the Comptroller General as to State taxes, and with the County Authority of his County as to the County taxes for the preceding year in which the accounts of said Tax Collector are fully stated, and uncollected items on the digest of such preceding year shall be listed in detail." The further provisions of said Section 10 are to the effect that in such accounting, County Authorities and the Comptroller General may require such further information as they deem necessary, as to why the uncollected items have not been collected, and as to whether or not the collected items have been properly accounted for, etc. This Section also provides that such Tax Collectors as have defaulted shall be promptly cited to make good such default. Quoting from sub-section (a) of Section 10: "If the Tax Collector fails to submit his account for settlement by April ~Oth, or within such further time, not exceeding four months, as shall be allowed by the Comptroller General, or if, on examination of the account, defaults are ascertained which are not promptly cured by the Tax Collector, the Comptroller General or the County Authorities shall report the same to the Governor, who, after giving the Tax Collector opportunity to be heard, shall have the power to suspend him or remove him from office; the Comptroller General and/or the County authorities shall proceed to cite the delinquent Tax Collector and his sureties." Quoting further from sub-section (c) of Section 10: "In case a Tax Collector has been succeeded in office by another person, a list of the uncollected items of tax appearing in the account of the out-going Tax Collector at the time of the accounting as stated above, shall be furnished by the Comptroller General or the County Authority to the Tax Collector then in office, and it shall thenceforth be his duty, as the taxes are collected, to pay to the outgoing Tax Collector one-half of the commissions and to retain for his services one-half, the commissions to be calculated as if the amounts had been collected by the outgoing Tax Collector, and the outgoing Tax Collector shall no longer have the right or the duty to collect the taxes or to enforce the execution issued therefor, but all uncompleted duties in respect thereof shall pass to the successor."
Under the further provisions of sub-section (c), it is provided that the outgoing Tax Collector and the sureties on his bond, after he has delivered the books and papers relating to uncollected taxes to his successor, shall be discharged of liability except as relates to defaults existing prior to that time. Therefore, in my opinion, it would be the duty of Mr. Evans to account to the Comptroller General and to the County Authority as required by the above quoted provision of Section 10, for all taxes for the preceding year or years during which he has served as Tax Collector. This accounting is required to be made by April lOth, or within such further time, not to exceed four months, as has been allowed by the Comptroller

251
General. At this accounting, he, of course, must account for all collected taxes, as well as for all uncollected taxes which he lists in detail, item by item, together with his reasons for not having collected same, etc. After this accounting has been made by Mr. Evans, it then becomes the duty of the Comptroller General and of the County Authorities to furnish to the incoming Tax Collector complete details as to all uncollected tax items appearing in the account of the outgoing Tax Collector. It then becomes the duty of the then Tax Collector (incoming Tax Collector) to collect such taxes as are uncollected, and to pay to the outgoing Tax Collector one-half of the commissions, retaining for his services the other half. These commissions are to be calculated in the same manner as if the amounts had been collected by the outgoing Tax Collector.
After the accounting by the outgoing Tax Collector, Mr. Evans in this case, by the specific provisions of subsection (c) of Section 10, of the Act above referred to, he no longer has the legal right to collect the taxes or to enforce the executions issued therefor. These uncompleted duties in respect to this matter pass to his successor.
COUNTY SURVEYOR-Appointment of
August 11, 1933
Hon. T. M. Linder Secretary Executive Department State Capitol
Dear Mr. Linder: This will acknowledge receipt of your letter of yesterday enclosing
a communication from Mr. H. G. Bell of Bainbridge, Georgia, relating to the appointment of a surveyor in that county under the conditions recited in Mr. Bell's letter and in the resolution of the County Board of Commissioners.
I am of the opinion that the office of surveyor in that county was vacant at the time of the passage of the resolution. It appears that the surveyor elected at the last general election in November, 193~, has failed to qualify by taking the oath and giving the bond as required by law, and it also appears that he has not called for his commission, which had been forwarded to the Ordinary of that county in due course.
The question presented is as to the procedure to be followed in that county in the filling of this vacancy.
The constitutional provision giving to the Courts of Ordinary such powers in relation to county officers as may be conferred on them by law will be found in Code Section 65~1.
Pursuant to the constitutional authority vested in the general assembly by the above mentioned provision of the Constitution, a law was enacted with respect to the filling of vacancies of the office of county surveyor. This law is embodied in Code Section 59~ (Sec. ~3-110~, Code of 1933), of the present Code. It gives to the

Ordinary the right to fill vacancies in the office of county surveyor by appointment. This appointment will hold until the vacancy is filled according to law.
The General Assembly went further and enacted a law which is now embodied in Code Section 4796, (Sec. 23-701, Code of 1933). Under the provisions of this Section, the Ordinary, when sitting for county purposes, was given original and exclusive jurisdiction over the matters mentioned in said Section, one of these being the filling of vacancies in county offices by appointment and in ordering elections.
It is to be noted that the Section of the Constitution above referred to was dealing with the powers of the Courts of Ordinary in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds and other county matters. It will also be noted that the General Assembly was dealing with these same matters in Code Section 4796.
I further call your attention to Section 6520 of the Code, (Sec. 2-3401, Code of 1933) which contains the constitutional provision vesting in the Ordinary of each county the powers of the Court of Ordinary and of Probate.
I have referred to the various provisions of the law dealing with the powers and duties of Ordinaries, in order to make myself clear with respect to the statements of law and the conclusions to be drawn therefrom which immediately follow herein.
In Code Section 6548 (Sec. 2-4601, Code of 1933), the Constitution of this State confers upon the General Assembly the power to provide for the creation of county commissioners in such county as may require them, and to define their duties.
There is another constitutional provision which deals with uniformity in county offices and which specifically excepts therefrom the appointment of Commissioners of Roads and Revenues in any county. I refer you to Code Section 6600, (Sec. 2-8401, Code of 1933), the pertinent portion of which is as follows:
"Whatever tribunal, or offices, may hereafter be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the appointment of Commissioners of Roads and Revenues in any county . . . .'~
In construing Sections 6548 and 6600, the Supreme Court of Georgia has held that these Sections do not require the passage of a general or uniform law defining the duties of County Commissioners.
In County of Pulaski v. Thompson & Company, 83 Ga. 270, (4), the Supreme Court said:
"The Legislature has the power to pass separate and distinct acts for any counties which require County Commissioners; and it is not necessary that these acts shall be uniform in their operation in all such counties. The intimation in Connelly v. Poole, 67 Ga. 254, to the contrary, was obiter."

253
In discussing this matter, on page 274, Justice Simmons, of the Supreme Court, said:
"When Commissioners are required by a county, we think that the Constitution does not require that the Acts creating them shall be uniform. In order to make the Acts uniform, the Legislature will have to pass a general law applicable to all counties which require County Commissioners, and this, we have seen, the Constitution does not require." The above principle of law was again laid down by the Supreme Court in the case of Sayer v. Brown, 119 Ga. 539. The following quotation was taken from page 545: "There is no general law, upon the subject of powers, duties, and jurisdiction of county commissioners, and as was said by the present Chief Justice, in County of Pulaski v. Thompson, 83 Ga. 274, the Constitution does not require the Legislature to pass a general law defining the duties and powers of county commissioners." In the case of Smith v. Dublin, 153 Ga. 463, the Supreme Court again speaking through Justice Gilbert, on page 465, said: "It must be borne in mind that the Constitution provides that the Legislature has power to provide separate and distinct acts for any counties which require county commissioners and does not require these Acts to be uniform in operation." The Court then cited Civil Code 6548 and Sayer v. Brown, 119 Ga. 545, and County of Pulaski v. Thompson, 83 Ga. 270(4). Again, in Rhodes v. Jernigan, 155 Ga. 528, this same principle of law was again applied. The next question for consideration deals with the extent of the power vested in the General Assembly with reference to the creation of County Boards of Commissioners, especially when considering the fact that these Acts do not have to be uniform. In this connection the Supreme Court, in the case of Waller v. Perkins, 52 Ga. 234, quoting from page 240, said: ''The Constitution of 1868 expressly authorizes the Legislature to provide for the creation of County Commissioners in such counties as may require this, and to define their duties. There is no limit on this power."
In the case of Churchill et. al. v. Walker et. al., 68 Ga., 686, the Supreme Court, in dealing with the power of the Legislature in connection with the creation of a Board of Commissioners from McIntosh County, said:
"The legislative authority is supreme, except where limitations have been placed upon it, either by the Constitution of the State or of the United States. If, therefore, it cannot be shown that the Legislature is forbidden to pass such acts as these they must stand valid and it must not only be shown, but clearly and manifestly shown. If the matter is the least doubtful, the Courts will uphold the constitutionality of the Acts . . . . There is no limit on the power of the Legislature to create commissioners and define their duties."

The Supreme Court of this State, in the case of Decatur County v. Roberts, 159 Ga. 5!28, had under consideration the Act of the General Assembly of 1904, page 252, which created the Board of
Commissioners of that county. In that case the Court was construing the powers vested in the Board of Commissioners with respect to the collection of taxes and was dealing with Section 8 of
the Act which is as follows: "Be it further enacted that said Board shall have power to assess, levy and collect such taxes, as may be necessary to defray the current expenses, and build and repair the public property of said
county; provided, however, that said tax shall not exceed .7 of 1% per annum." On page 530, Justice Hines, speaking for the Supreme Court, said: "We think it was the purpose of this provision to vest these commissioners with the powers given the Ordinaries to levy the special and extra taxes specified in Sections 504, 506, and 507, of the Code of 1910; to raise the general tax for county purposes provided in Section 508; the power, Section 513, to assess the county taxes for the purposes named in this section; the power, section 522, to compel all persons who have in their hands any county
money to pay the same over; the power, Section 523, to issue executions against such persons; and the power, Section 528, to suspend a defaulting tax collector, and to appoint some competent person in his stead to collect the county tax pending such suspension. It was the purpose of this Act to confer upon these commissioners the above and similar powers touching the levying, assessing and collecting of the county taxes; and not to supersede
the method of collection of these taxes in force at the time of the passage of this Act. We cannot conceive from the meager language of the above provision of this Act, that it was the purpose of this Act to make so revolutionary a change in the general method of collecting taxes in Decatur County . . . . " I am therefore of the opinion that the General Assembly of this State has the power to create County Boards of Commissioners, and to define their duties. That it has the power to give to the Commissioners the powers given the Ordinaries when sitting for county purposes. One of these powers was conferred upon the Board of Commissioners of Decatur County by Section 8 of the Act of 1904, creating the Board of Commissioners for Decatur County. The Supreme Court said, in the 159th Ga. supra, that the General Assembly could take that power from the Ordinary and confer it upon the Board of Commissioners. Section 9 of the Act creating this board (Acts 1904, p. 254) is as follows: "Be it further enacted by authority aforesaid that the said board shall have the power to supply by appointment all vacancies in county offices and in ordering elections to fill them in the same manner as said powers are now given to the Ordinaries of Counties." The transferring of this power from the Ordinary to the County Board of Commissioners, was in my opinion, within the power of the

~55
General Assembly of this State. This power is simply another one of the powers vested in the Ordinaries under Code Sections 4796 and 592, (Sees. 23-701 and 23-1102, Code of 1933.)
That body has as much power and authority to transfer to the County Board of Commissioners this particular right as it did to transfer from the Ordinary to said County Commissioners the powers with respect to taxation, which powers are likewise found in Section 4796.
Section 615 (4) of the Code, (Sec. 21-201, Code of 1933), is an illustration of where the General Assembly has transferred to the Board of County Commissioners of Roads and Revenues in counties having a County Manager form of government, the powers heretofore exercised by the Ordinary when sitting for county purposes.
I am therefore of the opinion that the opinion that the resolution of the County Board of Commissioners of Decatur County, declaring the office of County Surveyor of that county vacant, and in appointing W. G. Rich to fill that vacancy, is valid and binding.
I am also of the opinion that it would be the duties of the County Commissioners of Decatur County to immediately order a special election for the purpose of filling the existing vacancy, and that it is not necessary or contemplated that the Governor shall commission the person appointed to act as surveyor until after the special election held to fill the vacancy. The person so elected should, of course, be commissioned for the remainder of the regular term.
The entry of the resolution upon the minutes of the Board is all that is required to make the acts of Rich legal, until after the special election.
I am returning to you herewith Mr. Bell's original letter, together with the certified copies of the resolution attached.
SOLICITOR-Appointment of Solicitor for County Court of Echols County
October 18, 1933 Ron. Eugene Talmadge, Governor Dear Governor:
Your request for an opinion relative to the appointment of a Solicitor for the County Court of Echols County has been received.
This matter is governed by Code Section 4775 (19) of Michie's Code of 1926, (Sec. 24-401, Code of 1933), the provision being as follows:
"The Governor of this State, with the advice and consent of the Senate, shall appoint a Solicitor of the County Court for each County in this State where a County Court now is or may hereafter be established for a term of two years or until their successors are appointed and qualified, if the grand jnry of the Connty in which the Conrt is located, shall by two-thirds vote, so recommend." It is my opinion that under this Section, the recommendation of the grand jury is necessary before the appointment of the Solicitor

~56
by the Governor is in order. I have received from Mr. T. D. Herndon, Clerk of Superior Court of Echols County, certain excerpts from the minutes of the Superior Court of the County of Echols relative to the past history of appointments of Solicitors and recommendations of grand juries for the same. It seems that some of the Solicitors were appointed only after the grand jury had specifically recommended that the same be done. In other instances, the minutes of the Superior Court are silent with reference to the recommendations of grand juries, relative to other appointments of Solicitors. The first Solicitor, E. K. Wilcox of Valdosta, Georgia, who was appointed to the position as County Solicitor of Echols County, received his appointment only after the grand jury had unanimously recommended to the Governor his appointment, this occurring at the September Term, 1900. He was subsequently reappointed after a recommendation of the grand jury was made at the September Term, 1902. Also, at the March Term, 1910, it is shown by the minutes of the Superior Court that the grand jury recommended that one R. G. Tyson be reappointed as Solicitor of the County Court to succeed himself in that official capacity. The minutes did not show that a recommendation was made when the said Tyson was first appointed.
Our interpretation of the language of Section 4775 (19) is that the Governor shall appoint a Solicitor for the County Court of Echols County only if and when "the grand jury of the County in' which the Court is located shall, by two-thirds vote, so recommend." This seems to be a very reasonable provision of the law since the grand jury is in better position to know whether such a Solicitor is needed in said County than other outside authorities. The members of the grand jury are there in the County, know the conditions of the County treasury, the conditions and needs of the Courts of the County, and it seems that since the law reads as it does, it is the specific intent of the law to have the Governor appoint a Solicitor for the County Court only when the grand jury makes such a request.
As I interpret this law, it is not encumbent upon the Governor to appoint the person that the grand jury might recommend for appointment as Solicitor of the County Court, but the Governor has the power to appoint anyone whom he sees fit after the grand jury has recommended that someone be appointed.
TAXATION-Fees of collecting officers for collecting tax fi. fas.
November 1, 1933
Ron. Eugene Talmadge, Governor Dear Governor:
Yours of the 31st ultimo, enclosing a letter from Mr. J. C. Odum, Newton, Georgia, has been received.
You request an opinion relative to the proper fees to be charged by the Sheriffs or other collecting officers for collecting tax fi. fas.
Under date of October 24th, this Department furnished Mr.

~57
Odum with an opinion relative to this matter. The request coming from him, however, the opinion was not an official one.
Mr. Odum states in his letter that the sheriff in his county is charging $3.00 for the levy of tax fi. fas., and $2.00 for settlements. It is my opinion that the proper fees to be charged by a sheriff or other officer of the county collecting tax fi. fas., are set out under Code Section 1161, Michie's Code of 1926, (Sec. 92-8001, Code of 1933), which said Section provides:
"Whenever the sheriff or other officer of any county shall collect any tax fi. fa. over $100.00, he shall be entitled to $1.00 for cost; and for collecting any tax fi. fa. of $100.00 or under, 50 for cost. Acts 1880-1, p. 83." However, there is a further provision in our law as contained in Code Section 5997, (Sec. 24-2823, Code of 1933), which probably causes the confusion relative to the fees charged. It is provided in this section that the "sheriffs of this State shall be entitled to charge and collect the following fees for official duties performed by them, to wit: for each levy on fi. fa. $3.00; for settling each execution in his hands, settled without sale, $2.00." Offhand, these two sections seem to be in direct conflict. It will be noted, however, that
Section 1161 is very specific in its application to tax fi. fas., and it is
my opinion, therefore, that this section applies to tax fi. fas. rather than Code Section 5997, and that the proper fees are those which are specified in said Code Section 1161. There are no decisions upon this question from our courts that I have been able to find, but I notice that in the case of In re: Wyley Company, decided October 18, 1923, as contained in 292 Fed. 900-902, which was a case in the Federal Court for the Northern District of Georgia, Judge Sibley in his opinion referred to Code Section 1161 in dealing with the question of fees to be charged on tax fi. fa. collections.
It is my opinion that Code Section 5997 deals with the fees allowable to a sheriff on any fi. fas. except tax fi. fas., and that Code Section 1161 deals only with the fees due a sheriff or county officer with respect to the collection of tax fi. fas.
There is also a provision of the law as contained in Code Section 1121, Michie's Code of 1926, (Sec. 92-7105, Code of 1933), which provides as follows:
"When the collector (tax collector) shall have his insolvent list credited, it shall be the duty of the tribunal allowing it to retain a copy of such list and direct the collector to issue executions for the same and place them in the hands of some constable of the county for collection, who shall be entitled to the same fees as he is entitled to for other executions, and 2Yz%, and the balance shall be paid by the constable to the Ordinary, whose duty it shall be to submit the same to the treasury."
It is further provided in Code Section 1165, (Sec. 92-7406, Code of 1933) as follows:
."Executions may be levied by either of the officers to whom directed or other officer who by law may be authorized in their place, but a constable cannot levy a tax fi. fa., when the principal

~58
amount exceeds $100.00. And if a tax fi. fa. for less than
$100.00 be levied by a sheriff, his fee for said levy shall be that now allowed constables, and if the levy be made upon personalty, the same shall be advertised and sold as is now provided for justice court fi. fas. If the constable levies on land, it must be returned to and sold by the sheriff of the county. Acts 1876, p. 30." Code Section 6004, (Sec. ~4-820, Code of 1933), provides as follows: "The fees of constables shall be as follows:-For levying fi. fas. and advertising, 35; for settlement of fi. fas. when property is not sold, 30." Thus, it is my opinion that when the sheriff makes levy on any tax fi. fa. under $100.00, the proper fees to be charged are those given in Section 6004, and Code Section 1161. For example, if a sheriff collects a fi. fa. under $100.00 by making a levy, he would be entitled to 50 for collecting same, and 35 for the levy. If he collects the same without a levy, he is entitled to 50 for cost. If a sheriff collects a tax fi. fa. of over $100.00, he is entitled to $3.00 for the levy if the same is made and the property advertised, etc. If he collects a fi. fa. over $100.00 without a levy being made, then he is entitled to only $1.00 for cost.
GOVERNOR-Authority of Governor to use money in the treasury otherwise allocated to pay teachers or to repay loan where funds used to pay teachers
December 19, 1933 Hon. Eugene Talmadge, Governor My dear Governor:
Honorable Tom Wisdom, State Auditor, has referred to the Department of Law with the request that you be furnished an opinion on the subject, the question of whether or not State Highway Department funds and the income tax reserve fund now in the State Treasury aggregating $1,000,000.00 may be used to repay a loan of the same amount maturing January Q, 1934, and heretofore negotiated for the purpose of paying school teachers.
The Act of 1927, Georgia Laws 1927, page 168, authorizing the Governor in pursuance of the amendment to Article 7, Section 3, Paragraph 1 of the Constitution, to borrow money for the purpose of paying the public school teachers of the State further authorizes and empowers the Governor:
"At any time in his discretion, to impress, use, and employ for the payment of public school teachers of the State, and without payment of interest thereon, any funds in the Treasury which may have been allocated for any special fund or purpose so as to obviate the necessity of increasing the public debt of the State and the payment of interest thereon." The Act further provides that it shall be the duty of the Governor to replace the funds so impressed by borrowing the same, if necessary,

259
at such time as will not interfere with the expenditure for the purpose for which such funds were allocated.
It is my opinion that under this express authority the Governor is empowered to use any funds in the Treasury allocated to the State Highway Department which in his discretion are not presently needed for use by the State Highway Department for the purpose of paying school teachers. The Act expressly provides for impressing funds allocated for "any special fund or purpose." Therefore, it is my opinion that the income tax reserve fund may also be impressed for the purpose of paying school teachers, if, in the discretion of the Governor, such fund is not presently needed for the purpose for which it was specially set aside by the Act of the General Assembly.
I note that the purpose for which these funds are now needed is to pay a note heretofore executed for money borrowed to pay school teachers. In my opinion, the use of these funds for this purpose will be in conformity with the Act of 1927, since although the funds impressed will not be used directly to pay teachers they will be used to repay funds already used to pay teachers.
TAXATION-Costs to be paid where poll taxes segregated and paid
March 29, 1934 Hon. Eugene Talmadge, Governor Dear Governor:
Yours of the 27th instant inclosing the letter of Mr. Clark Garfunkel dated March 15, 1934, and requesting an opinion as to the legal authority of the Sheriff of Chatham County to accept payment of $1.00 poll tax, where the same is delinquent, without the additional payment of $1.50, which sum includes 50 for fi. fa., 50 sheriff's fee for collection, and 50 for segregation, has been received.
Relative to the charge of 50 for the segregation, it is my opinion that there is no provision of law whereby this charge may be made. The Act of 1931 (Ga. Laws 1931, p. 122), as amended by the Act of 1933 (Ga. Laws 1933, p. 50), relative to the release on payment of tax liens of separate parcels of property and authorizing a charge of 50 to be paid to the officer or transferee accepting said payments and releasing said property, has application only to property taxes and not to poll or other taxes.
The question as to the legality of the charge of 50 for the fi. fa. and 50 for sheriff's fee is one which is not at all free from difficulty. Under Section 1228 of the Civil Code of 1926 (Sec. 92-:-5101, Code of 1933), requiring the several tax collectors of the State to keep a stub book of tax receipts, and to enter on the receipt and the stub attached thereto, the name of each tax payer in their respective counties, the amount of taxes assessed against him and itemize the same, stating the amount due the State, county, poll tax or any other professional or special tax, it seems to me the law contemplates only one tax execution for the various taxes assessed against a taxpayer,

260
this execution to be issued in accordance with the provisions of Civil Code Section 1229, (Sec. 92-5102, Code of 1933). When such an execution is issued, it is provided by Section 1162 of the Civil Code, (Sec. 92-8002, Code of 1933):
"That tax collectors shall be allowed a fee of 50 for issuing tax fi. fas.; but no tax collector, sheriff or constable shall receive costs on said fi. fas. unless the same be collected from the defendant." Civil Code Section 1161, (Sec. 92-8001, Code of 1933) provides: "Whenever the sheriff or other officer of any county shall collect any tax fi. fa. over $100.00, he shall be entitled to $1.00 for costs; and for collecting any tax fi. fa. of $100.00 or under, 50 for costs." However, despite these provisions relative to costs on a tax fi. fa., when we consider the intent and purpose of the Legislature in proposing the amendment to Paragraph 3, Section 1, Article 2 of the Constitution (Georgia Laws 1931, p. 102) which was subsequently ratified by the people of the State at the last general election, it seems clear that the payment of "all poll taxes" in accordance with the provisions of this amendment was the only tribute which the State is authorized to exact from a taxpayer in order to qualify said taxpayer as a voter. To construe this law otherwise would be to render the spirit and letter of the law nugatory. Certainly the imposition of the entire costs upon a taxpayer seeking to pay only his poll taxes under the authority of the amendment as above cited, where his poll taxes are intermingled or assessed along with property or other taxes, would be to burden his right to exercise the franchise by exacting a tribute from which the Legislature sought to free him. Such a taxpayer should not be made to pay the entire costs for the issuance of the fi. fa. which covers other taxes and for which property is liable. Neither should such a taxpayer, seeking to pay only his poll tax, be made to bear the entire costs of the sheriff's fee for collecting said fi. fa. when the law contemplates the payment of such costs to the sheriff only "whenever the sheriff or other officer of any county shall collect" the entire fi. fa. There is ground for exception in the ruling stated above in the case where the taxpayer is subject only for poll taxes and the fi. fa. issued by the tax collector and collected by the sheriff represents only poll taxes. In such an event, it is my opinion that the tax collector would be entitled to a fee of 50 for issuing such a fi. fa. for poll taxes and the sheriff or other officer authorized by law to collect the fi. fa. for poll taxes would be authorized to charge a fee of 50 for costs. The statutes relative to the partial payment of taxes do not seem to provide for any proration of the costs of the fi. fa. and fees for collecting the same. The statutes authorizing the fees for issuing and collecting tax fi. fas. seem to contemplate that all of the costs are to be collected when all of the taxes are paid.
Section 1161 above cited does not provide for a 50 fee for collecting any part of a tax fi. fa. There being no provision for a proration of the costs and fees for collecting fi. fas., where the same cover different property and subjects of taxation, and the law contemplating the payment of costs and fees for the collection of the entire

261
fi. fa., it is therefore my opinion that the tax collector and the sheriff would not be entitled to charge a taxpayer costs who is seeking to pay his poll tax separate and distinct from his other taxes included in the same fi. fa. Such fees and costs are collectible, however, on fi. fa. issued against a taxpayer where the fi. fa. includes nothing but the poll tax.
I am herewith returning Mr. Garfunkel's letter as requested.
GOVERNOR-Governor without authority to order cancellation of bond of tax collector
March 31, 1934 Hon. Eugene Talmadge, Governor Dear Governor Talmadge:
I have your memorandum inclosing a letter from l\Ir. Frank ,V. Bell, Attorney, of Milledgeville, Georgia, in which he requests that you order the cancellation of certain bonds executed by Mr. L. D. Smith, now deceased, but formerly tax collector of Baldwin County.
It appears that Mr. Smith was surety on the bond of C. I. Newton, Coronor of Baldwin County, which was dated December 14, 1914. It also appears that Mr. Smith was principal on certain bonds executed to the State and to Baldwin County conditioned for the faithful performance of his duties as tax collector of Baldwin County and all bearing date of May 9, 1928, or later dates.
Section 301 of the Civil Code, (Sec. 89-424, Code of 1933) authorizes the Governor upon the application in writing of the surety of any official to require the principal on the bond to execute a new bond with new sureties.
This statute provides a method whereby the surety on an official bond may be relieved of future liability thereon. There is no provision of law whereby either the principal or the surety on an official bond can be relieved of liability which has already accrued. In other words, if the Governor were to now pass an official order cancelling these bonds, which, in my opinion, the Governor is not authorized to do, the effect would be simply to relieve against any liability which might hereafter accrue on the bonds.
So far as the bond on which Mr. Smith was surety, given by the coroner of Baldwin County is concerned, I am sure that bond is no longer of force, because the term of office on account of which it was given has long since expired and it could not be supposed that the same man has since continued to hold office as coroner without giving a new bond. Any action toward cancelling this bond would, of course, serve only to relieve against any future liability thereon and since the bond is not functus officio it could serve no possible useful purpose.
With reference to the bond signed by Mr. Smith as principal and conditioned for the faithful discharge of his duties as tax collector, there is no statutory provision of any sort which would authorize his being relieved of liability either past or future. Section 301 of

~62
the Civil Code applies only to sureties; it does not apply to the principal on a bond.
I have no doubt Mr. Smith properly accounted for all funds collected by him until the time of his death. If this be true, I see no reason why a certificate of the Ordinary or County Commissioners of Baldwin County as to county taxes and a certificate from the Comptroller General as to State taxes, each certificate showing a proper accounting and final settlement, ought not to satisfy the Federal Land Bank. . If it should in fact hereafter develop that there was an actual shortage during Mr. Smith's encumbency as tax collector and at the time of his death he was indebted to the State or the county on account of taxes collected by him but not accounted for, then the State and the county respectively would have liens on his property for the amount of any such default. If it should in fact develop that the State has such a lien, there is no official or officer of the State who has authority to waive it. If the State in fact has no such lien, of course, there is nothing to waive.
I regret to advise that I know of nothing the Governor can do under the law to relieve the situation described by Mr. Bell. The only thing that can be done to this end is for the Comptroller General and the County Authorities to furnish the certificates referred to.
GOVERNOR-Extradition of prisoners
April 11, 1934 Honorable Eugene Talmadge Governor My dear Governor:
You have requested an opinion as to whether or not H. S. Bell, now confined in the Fulton County Jail, is subject to be extradited by the State of Arkansas.
The facts with reference to the presence of Mr. Bell in the State of Georgia, as I understand them, are as follows:
He was arrested in Arkansas in January of 1933 for the offense of robbery. He was already under a suspended sentence imposed by the Federal District Court in the State of Arkansas. After being arrested by the State authorities on a State offense, he was indicted for _the offense of robbery by the grand jury of Pulaski County, Arkansas. Thereupon the Federal District Judge revoked the order of suspension and directed that Bell serve his Federal sentence. The State authorities then voluntarily released him to the Federal authorities and he was brought to the Federal Prison in Atlanta, Georgia, to serve his Federal sentence. He has just been discharged and is being held at the request of the authorities of the State of Arkansas. Extradition proceedings appear to be in regular order.
The question involved is whether Bell is a fugitive from justice in the State of Arkansas within the meaning of Article 4, Section 2, Clause 2 of the Constitution of the United States, and within the meaning of Section 5278 of the revised statutes of the United States.

263
The constitutional provision is as follows: "A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." It is the contention of Bell that he is not a fugitive from justice in the State of Arkansas for the reason that he did not voluntarily leave the State of Arkansas but was removed from that State, with the consent of the State authorities, by Federal officers, against his will, for the purpose of serving a Federal sentence. It seems to be well settled that when a person commits a crime in one State and voluntarily leaves that State and is found in another State, he is a fugitive from justice within the meaning of Section 5~78 of the United States revised statutes, and has fled from justice within the meaning of Article 4, Section 2, Clause 2 of the Constitution of the United States, no matter what may have been his motive in leaving the State in which he committed the crime. It has been held that such a person is a fugitive from justice, although he may not have known at the time he left the State that such a crime had been committed. It has also been held that a prisoner paroled by one State and given permission to leave the State is nevertheless a fugitive from justice in another State to which he removes himself, upon the parole being revoked because of a crime committed in the State to which he has removed.. It has been held by the Supreme Court of Georgia that on habeas corpus proceedings an alleged fugitive whose extradition is sought may show that he was not in the demanding State at the time the alleged crime was committed and is, therefore, not a fugitive from justice within the meaning of the Federal statute. Dawson v. Smith, 150 Georgia, 350. No such question is involved in the instant case, since Bell does not deny that he was in the State of Arkansas at the time the alleged crime was committed and has since absented himself from the State. He contends merely that his absence from the State of Arkansas is due to no voluntary act of his own and that he is, therefore, not a fugitive from justice. In the case of McNichols v.. Pease, 52 L. Ed. 121, the Supreme Court of the United States laid down this rule:
"A person charged with crime against the laws of a state and who flees from justice, that is, after committing the crime leaves the state, in whatever way or for whatever reason, and is found in another state, may, under the authority of the Constitution and laws of the United States, be brought back to the state in which he stands charged with the crime, to be there dealt with according to law."
In the case of Shapiro v. Wall, 244 N. W. 811, decided in 1932, the Supreme Court of the State of Minnesota had under consideration the exact question here involved. In that case a man was indicted in the State of Illinois. He was later indicted in the Federal Court

~64
in that State, tried and convicted and sent to the Federal Prison at Leavenworth, Kansas. While he was serving the sentence the Federal authorities removed him to Illinois to stand trial for the State offense. He was convicted in the State Court and was then returned to Leavenworth to complete the Federal sentence. Upon his discharge from the Federal Prison he was arrested by the Kansas authorities at the request of the Governor of Illinois. He sued out a writ of habeas corpus and was discharged from custody on the ground that he was not a fugitive from Illinois. He then left the State of Kansas and went to :Minnesota. He was arrested there upon an extradition warrant and brought another habeas corpus proceeding in which he raised the same question that he was not a fugitive from justice from Illinois for the reason that he had never voluntarily left that State, but on both occasions was carried out of the State by Federal authorities against his own will. The Supreme Court of Minnesota held that this contention was without merit, citing the case of Roberts v. Reilly, 116 U.S. 80, 29 L. Ed. 544, where it was held that one is a fugitive from justice who has committed a crime within a State and
"when he is sought to be subjected to its criminal process to answer for his offense, has left its jurisdiction, and is found within the territory of another." In the case of State v. Richter, 37 Minnesota, 436, 438, the Supreme Court of that State said: "The meaning of this language is unmistakable, viz: That the motives or purposes of the party in leaving the state where the crime was committed are entirely immaterial; that all that is necessary to constitute him a fugitive from justice is (1) that, being within a state, he there committed a crime against its laws, and (2) when required to answer its criminal process, he has left its jurisdiction, and is found in the territory of another state. "This construction fully accords with our own views. The sole purpose of this statute, and of the constitutional provision which it was designed to carry into effect, was to secure the return of persons who had committed crime within one state, and had left it before answering the demands of justice. The important thing is not their purpose in leaving, but the fact that they had left, and hence were beyond the reach of the process of the state where the crime was committed. \Vhether the motive for leaving was to escape prosecution or something else, their return to answer the charges against them is equally within the spirit and purpose of the statute; and the simple fact that they are not within the state to answer its criminal process when required, renders them, in legal intendment, fugitives from justice, regardless of their purpose in leaving."
In the case of Shapiro the Minnesota Court said: "We think the manifest purpose of th~ constitutional provision and of the acts of Congress in furtherance thereof is to effect the return of the absentee criminals or those charged with crime and

265
that these provisions should receive a liberal construction to carry out that manifest purpose which in our view includes a design to prevent the frustration of criminal procedure by the departure of a person in any manner from the jurisdiction where he is charged with crime." The rule enunciated in the Minnesota case was also followed by the New York courts in American Surety Company v. Benham, 128 New York, 610. In the case of Hart v. Mangham, 146 Georgia, 497, the Supreme Court of this State decided the exact question here involved, and held that a man under indictment in the State of Tennessee who had been voluntarily surrendered by the Tennessee authorities to the Marshall of the United States, for trial in Federal courts, and who had been sentenced to a term of service in the Federal Penitentiary in Atlanta, was a fugitive from justice in Tennessee when he was discharged from the Federal Penitentiary. In the case of In Re Whittington, 34 California Appeals, 344, 167 Pacific, 404, a somewhat different rule was announced. In that c~se it was held that a person who had been extradited by California from Texas could not be extradited by the State of Texas from California. The California court, however, cited no authority to sustain the conclusion reached and the court rendering the opinion was not the court of last resort in that State but merely a district court of Appeals. In the case of In Re Todd, 81 N. W., 637, the Supreme Court of South Dakota held that where a person charged with an offense involving fraud had left the State at the special request and with the knowledge of the parties alleged to have been defrauded, was not a fugitive from justice and could not be extradited from the State of South Dakota to which he had removed himself. An exactly contrary ruling was made by the Supreme Court of South Dakota in the case of Grogan v. Webb, 227 N. W., 74, and in the latter case the previous decision in the Todd case was expressly overruled as being unsound upon principle.
In the case of Thaw v. Drew, 214 Federal, 423, the district court of the United States sustained a writ of habeas corpus brought by Harry K. Thaw, who was confined in the State Hospital for the Criminal Insane in New York and who escaped therefrom and fled to the State of New Hampshire. The offense on account of which Thaw was sought to be extradited consisted of thus escaping. The District Court of the United States held that under these circumstances he was not a fugitive from justice since he had not left the State to avoid trial or punishment for any previous crime, but the only crime committed consisted of his escape.
An appeal was taken by the New Hampshire authorities to the Supreme Court of the United States and the Supreme Court of the United States reversed the lower court in remanding Thaw to the New York authorities, holding that his motive in leaving the State of New York was wholly immaterial.
I have carefully examined all of the authorities cited by opposing

266
counsel in the instant case. I have also carefully examined the various digests available. I am unable to find any decision of the United States Supreme Court dealing with the exact state of facts here involved. The only State cases I find dealing with the exact state of facts are the Minnesota cases and the Georgia c&ses herein cited. The only case holding anything to the contrary of what was held by the Minnesota Courts and the Georgia Courts is the California case referred to. That case seems to be based upon its own peculiar facts and is not supported either by cited authorities or by cogent reasoning.
I know that when a man is carried out of a State by Federal authorities to serve a sentence in the Federal Penitentiary in another State, it seems difficult to say that he should be treated as a fugitive from justice in the State from which he was taken without his consent. On the other hand, it necessarily appears from such facts that his removal to serve a Federal sentence is by reason of his conviction of crime, that in a legal sense such removal is of his own volition, since it is a necessary consequence of a crime voluntarily committed by him.
It has been suggested that under the facts in the instant case, Bell may have been deprived of some constitutional right in that he was entitled to a speedy trial in the State of Arkansas for the alleged violation of the laws of that State and has not been accorded such a speedy trial. II this be true, the question is one which should properly be submitted to the courts of Arkansas for determination, and one which, in my opinion, does not lie within the province of the Executive of this State to pass upon.
It has also been suggested that the State of Arkansas has voluntarily relinquished its jurisdiction by permitting Bell to be removed from the State by Federal authorities. In the case of Grogan v. Webb cited, the defendant had absented himself from the State with the knowledge and consent of the prosecuting officials and I find no case holding that action such as was taken in the instant case by the Arkansas authorities operates to deprive a State of jurisdiction to try an offender against its laws or can be construed to result in fixing for such offender a perpetual haven of refuge beyond the territorial limits of the State.
I feel bound by the ruling of the Supreme Court of the United States in McNichols v. Pease, supra, and by the ruling of the Supreme Court of this State in Hart v. Mangham. In view of these decisions, I am constrained to rule that Bell is a fugitive from justice in the State of Arkansas within the meaning of the Constitution of the United States and of the statutes of the United States, and that your Excellency should honor the requisition for him which has been presented by the Arkansas authorities.

267
GOVERNOR-Leasing of overhead rights on W&A right of way
April 12, 1934 Honorable Eugene Talmadge Governor Dear Governor Talmadge:
Pursuant to your request, I have examined the proposed lease agreement between the Nashville, Chattanooga and St. Louis Railway and B. F. Joel of Fulton County, Georgia, and have likewise examined the lease contract between the State of Georgia and the Nashville, Chattanooga and St. Louis Railway under date of May 11, 1917, and submit you herewith my report as follows:
The General Assembly of this State in 1915 passed what is known as the Western & Atlantic Railroad Leasing Act. This Act was passed at an Extraordinary Session of the General Assembly in November, 1915, being approved on November 30, 1915. (Acts Extraordinary Session 1915, p. 119).
Under the specific provisions of the Act a commission was constituted and authorized to proceed as it might deem most expedient to the end in view, subject to such limitations and directions imposed by that act.
.BY Section 3 of this Act the Commission was required to determme
"what, if any, property is owned by the Western and Atlantic Railroad, not useful for railroad purposes, that could be properly and advantageously disposed of separately from the lease of the road . . . . Whether or not it would be wise and expedient to reserve from any of said properties, either at the terminals or elsewhere upon the line, overhead or ztnder~round rights, looking to their subsequent use separate from railroad purposes, with specifications and recommendations thereof." Under the provisions of Section 5 of the Act, the Commission was charged with the duty of preparing or causing to be prepared complete and accurate surveys, maps, profiles and estimates, showing: .... "The extent and character of every use or occupation of the right of way, tracks and other property of the road by any person or corporation other than the lessee, and the authority therefor." Under Section 6 of the Act, the Commission was also fully authorized and empowered to lease and contract for the leasing of the railroad properties known as the "Western and Atlantic Railroad, including the terminals thereof, and its property other than its railroad property, not connected with either of its terminals; and the same may be leased, either in its entirety or as a part, whether surface, underground or overhead rights." It was further provided in said Section 6: "All the terms and conditions upon which said property may be leased shall be determined and prescribed by the Commission except as may be limited by the provisions of this Act." Under Section 11-A of the Act it was provided that:

268
"The said lessee shall not sublet or re-lease the said Western and Atlantic Railroad, or any part thereof, without the approval in writing of the Governor of the State; provided, however, that the commission herein created shall have the power and authority to prescribe the terms and conditions under which the tracks may be used by other railroads in cases of emergency." (See below for amendment to this paragraph.) By the provision of Section 11-B of the Original Act, the lease was required to reserve to the State the power to authorize the laying out, building and construction of such ways, streets, roads, bridges, and viaducts, across and along the properties leased, as may be deemed to be to the interest of the people of Georgia, without let or hindrance, and without liability over to the lessee by abatement of lease, money or otherwise. The General Assembly in August, 1916, amended Section 11-A of the Original Act, above referred to, and said section as amended reads as follows: "11-A. The said lessee shall not sub-let or re-lease the said Western and Atlantic Railroad, or any part thereof, except such as is not needed for railroad purposes, without the approval in writing of the Governor of the State, provided, where any property shall be re-leased under this section, it shall be reported to the office of the Railroad Commission and a record made thereof in a book to be kept for that purpose in order to complete the same. All improvements, betterments or additions to, in or upon the said road, or any part thereof, or any part leased thereunder, made by the lessee or its tenants shall become, upon the expiration of the lease the property of and belong to the State of Georgia." Acts 1916, pages 148, 149. The original lease executed in May 1917 covered: "The said Western and Atlantic Railroad, a railroad running from the City of Atlanta in the State of Georgia to the City of Chattanooga in the State of Tennessee, including the terminals thereof, and its property other than its railroad property not connected with either of its terrr:.inals, together with all its houses, workshops, rolling stock, depots and appurtenances of every kind and character belonging and appertaining to said railroad, except the following pieces and parcels of land, to wit: (Here was set out the lots and parcels lying or being in the City of Chattanooga, Hamilton County, Tennessee.)"
The provisions of Paragraph 11 of the lease, here appurtenant ~re as follows:
"The granting by the party of the second rntrt of trackage rights to other carriers over the western & Atlnntic Railroad or any part thereof, shall not be construed as a sub-lctting of the property, such as is forbidden by Section 11-A of the Act \Yit.hout the written consent of the Governor of the State, provided, however, that such use of the tracks and property of the "Western & Atlantic Railroad shall always be had and exercised subject and subsidiary to the domination and control of the party of the second part, and

269
further subject to all the duties, obligations and liabilities of the party of the second part to the State of Georgia, under the Acts of the General Assembly of Georgia and this contract of lease; and it is further understood and agreed that no contract or agreement for any servient use of the tracks or railway facilities of the Western & Atlantic Railroad, granted by the party of the second part to any other person shall be construed as introducing a new party to the contract between the party of the second part and the State of Georgia; and every such servient use shall be subject in all respects to this contract of lease, and as between the State and the party of the second part such servient use shall be regarded as being the use by the party of the second part, through its agent or tenant."
Under the lease between the Nashville, Chattanooga and St. Louis Railway and B. F. Joel, it is proposed by the Nashville, Chattanooga and St. Louis Railway to lease to B. F. Joel for a term of twenty-five years from the first day of May, 1934, subject to the terms and provisions of said Act of Georgia approved November 30, 1915, and all amendments and supplements thereto, and subject to the lease contract dated May 11, 1917,
"All the air rights over the following described property, to wit: (describing the property) .... Such air rights over the property shall begin at a plane twenty-one feet above the top of rail of the main tracks of the Railway and extend upward, but the Realty Company shall have the right, subject to the approval of the Railway Company, to construct on the realty above described supports for any development of the air rights herein leased, together with the right to lay and maintain water, sewer, gas lines and other appurtenant connections as may be required for the full development of said air rights. The Railway agrees to co-operate with the Realty Company in working out a plan for such supporting columns, water, sewer, gas lines, and/or such other appurtenant connections, which will be mutually satisfactory to the end that such location, construction and maintenance shall not interfere with the safe and efficient operation of the railway."
It, therefore, appears from the foregoing as follows:
1. That the General Assembly conferred upon the Commission the right to determine and pass judgment upon the question as to the reservations of overhead and underground rights in the lease.
2. That the Commission was authorized and empowered to determine the extent and character of every use and occupation of the property leased.
3. That the Commission was authorized to lease the property either in its entirety or as a part, whether surface, underground or overhead rights.
4. That the lessee cannot sub-let or re-lease said property, or any part thereof, except such as is not needed for railroad purposes, without the approval in writing of the Governor.

270
5. That in executing the lease the property was conveyed without a reservation of the surface, underground or overhead rights.
6. That the lease conveys to the Nashville, Chattanooga and St. Louis Railway, the right to sub-let any part of the property not useful for railroad purposes, subject to the terms, conditions, obligations and requirements of the Acts of the General Assembly and of the lease contract.
7. That the use of the property conveyed is required to be exercised subject to all of the terms, obligations and liabilities of the Nashviile, Chattanooga and St. Louis Railway to the State of Georgia under the acts of the General Assembly and under the contract of lease.
Therefore, if the property rights proposed to be leased under the lease contract between the Nashviiie, Chattanooga and St. Louis Railway and B. F. Joel, the lessee, is not needed for railroad purposes, the Nashviile, Chattanooga and St. Louis Railroad would have a right to enter into the lease contract and sub-let the property proposed to be leased without the approval in writing of the Governor. On the other hand, if the property proposed to be leased is needed for railroad purposes, it has no right to sub-let or re-lease the property without the approval in writing by the Governor.
Looking to the proposed lease, we find that the rights proposed to be conveyed are:
"all the air rights over the following described property, to wit: (Describing the property . . . . . . Such air rights . . . . . . . . . beginning at a plane 21 feet above the top of railroad of the main tracks of the Railway and extending upward . . . . . . the right . . . . . . . to construct on the realty above described supports for any development of the air rights herein leased, together with the right to lay and maintain water, sewer, gas lines, or such other appurtenant connections as may be required for the full development of said air rights."
If that property, or property right, proposed to be conveyed is not needed for railroad purposes, and will not interfere with the use of said property in the safe and efficient operation of the Railway, then there would be no necessity for the approval of the contract by the Governor. On the other hand, if the property is needed for railroad purposes, or if the ordinary use or exercise of the property right thus conveyed would interfere with the safe and efficient operation of the railroad property, then it would be necessary that the Governor approve the lease in writing.
In considering this matter, it is reasonable to assume that a proper exercise of this right so conveyed might not at this time in any way interfere with the safe and efficient operation of the Railway property, and might be such property as is not now needed for railroad purposes. In the future, nevertheless, such property might be needful for railroad purposes and the exercise of the right might in some measure interfere with the safe and efficient operation of the Railway, under such conditions as might exist in the future.

271
In view of the doubt as to whether or not the property right proposed to be conveyed might or might not constitute property needed for railroad purposes, and in view of the doubt as to whether or not the exercise of the right thus conveyed might or might not interfere, at least to some degree, with the efficient operation of the Railway, I think it would be entirely appropriate for the Governor to exercise the discretion vested in him in approving or disapproving in writing the proposed lease.
GOVERNOR-Discussion of authority of Governor to direct the filing of proceedings to oust a public service corporation from alleged usurpation of power
May 21,1934 Honorable Eugene Talmadge, Governor 1\Iy dear Governor:
I have your recent letter inclosing nine petitions which have been filed with you requesting that you direct the Attorney General to file a quo warranto and such other proceedings at law and in equity as may be necessary to oust the Georgia Power Company from an alleged usurpation of powers.
You request my opinion as to the authority and discretion of the Governor in this matter.
It appears from the averments of the petitions filed with you that certain manufacturers of electrical refrigerators have entered upon an agreement with the Tennessee Valley Authority created by Act of Congress for the development of Muscle Shoals and with the Electric Home and Farm authority, a subsidiary corporation organized under the laws of Delaware, whereby these manufacturers propose to put on the market an electrical refrigerator known as the TVA Refrigerator to be sold at a price much lower than the price at which such refrigerators are now selling. I am informed that the price to the user will be $79.96 and that substantially the same refrigerator is now being sold for $116.00. These refrigerators are to be sold on terms and the paper taken therefor is to be handled by the EH&FA at a very low rate of interest by the use of RFC funds. I am also informed, and the petitions filed with you and the suit now pending in court so indicate, that the Georgia Power Company will not, under the agreement, have the exclusive agency for this refrigerator but that any reputable merchant engaged in handling electrical appliances may sell them on the same terms and conditions as those on which the Georgia Power Company will sell them.
It is alleged in substance by the documents presented to you that the Georgia Power Company is without charter power to engage in the sale of these refrigerators and especially without charter power to collect the instalment notes to be taken therefor by the Power Company and other agencies selling the refrigerators. It is also averred that if the agreement proposed is consummated it will be impossible for the petitioners to compete with the Georgia Power Company for the reason that they must necessarily sell these refrigerators at a

loss and cannot recoup their losses as the Georgia Power Company will be enabled to do, due to increased consumption of electricity. The various petitioners are engaged in business in this State and in the sale of electrical refrigerators and electrical appliances.
As Governor of this State you are authorized and charged by the Constitution with the duty of seeing that the laws are faithfully executed. To the end that the power thus granted, and the duty thus imposed, may be effectually executed the Attorney General of the State is required to represent the State "in all civil and criminal cases in any court when required by the Governor." Civil Code 1910, Section 254(4); Section 4Q-1602, Code of 1933. The Attorney General is also required to attend on the part of the State "to all . . . civil cases to which the State is a party." In addition to the duty imposed by the Code section quoted upon the Attorney General it is provided by Section 92 of the Reorganization Act of 1931 that:
"The Governor shall have power to direct the department of law, through the Attorney General as head thereof, to constitute and prosecute in the name of the State such matters, proceedings and litigations as he shall deem to the best interests of the people of the State." I do not think that the section of the Reorganization Act just quoted operates to broaden the discretion already vested in the Governor by the Constitution and laws of this State. The words "people of the State" must be construed to mean the whole body of the people and to be synonymous with the State itself in its sovereign or governmental capacity and to authorize the Governor to require the prosecution by the Attorney General and the Department of Law of such matters only as, in the discretion of the Governor, shall be in the public interest. It is my opinion that the Governor of this State has the authority, whenever in his discretion the public interest may so require, to direct the Attorney General to institute such actions as may be required, against such defendants as may be necessary, to protect and secure the sovereignty of the State and subserve the interest of the people of the State as a whole. I do not think the Governor is authorized to require the institution of a suit where only private interests are involved. The matter or thing in controversy must involve the public interest to the extent of affecting the State in its sovereign or governmental capacity.
With reference to the particular matter and thing now under consideration my examination of the documents referred to me and my consideration of such other facts as have been brought to my attention constrain me to the opinion that only private interests are involved. It is true that the petitioners charge in general terms that the action taken by the parties complained of, if carried to its logical conclusion, will result in the creation of a monopoly. It is impossible, of course, for me to forecast the result of any business combination or transaction. However, the only action actually taken so far as these papers indicate, and so far as I have been able to

273
ascertain, is the execution of an agreement whereby the people of this State will be enabled to buy an electrical refrigerator at approximately two-thirds of the price they are now paying for the same article. The distribution of these machines at the price set is not restricted to the Georgia Power Company but any dealer who desires to do so is to be accorded the privilege of engaging in their sale and distribution. It would seem, therefore, that it would be prema:ture at this stage for the State to seek by legal proceedings to restrain the enforcement of the agreement referred to on the idea that it tends to the creation of a monopoly. If such a result should later become apparent the State could take such action as the Governor might deem necessary to protect the public interest.
The petitioners further aver that the Georgia Power Company is violating its charter and acting ultra vires in entering upon this contract. This letter is written on the assumption that this averment of the petition is true. I do not think it necessary to place any construction upon the charter of the corporation at this time.
It is the general rule that a State may, by quo warranto or injunction, oust any corporation created by it from the exercise of any franchise not conferred by its charter. Before there can be an ouster, however, there must be a usurpation by the corporation, not merely of some power not granted but of some franchise which the State alone can grant and which does not inhere in citizens generally. An Act of such a corporation which is ultra vires merely does not amount to the usurpation of a franchise. It is a well reorganized rule that. before a corporation can be ousted from its charter there must be a continuance of ultra vires Acts so substantial as to constitute a misuser of the franchise and which so derange or destroy the business of the corporation that it no longer fulfils the end for which it was created. 22 R. C. L. p. 677, Section 14. In other words, before quo warranto or other appropriate proceedings may be instituted by the State against a corporation of its creation there must be either a usurpation of a franchise not granted or a misuser of the franchise actually granted to the extent that the condition upon which it is granted is violated and the public interest thus affected.
What has been said has no reference to actions which may be instituted by private individuals or stockholders of any such corporation.
It does not seem to me that the matter now under consideration has progressed to the extent that the public interest is involved. The only interests which seem involved are private interests on behalf of which the State cannot litigate. While the action complained of may be hurtful to the individual citizens who are complaining, it does not seem that an agreement looking to a substantial reduction in the price of a household commodity could be accounted a public wrong. Furthermore, the petitions filed with you show that a suit to restrain and enjoin the Acts complained of has been filed, and I am advised that this action is now pending in the District Court of the United States for the Northern District of Georgia. I am of the opinion that it would be proper in the present state of this matter to leave the parties to the enforcement of their private rights by whatever process they may deem proper.

274
EDUCATION-Distribution of Federal and State funds.
May 23, 1934
Hon. Eugene Talmadge, Governor
Dear Governor: I have your letter of this date in which you state certain counties
of Georgia have received Federal funds for the payment of salaries to school teachers but that approximately 24 county school systems and 28 city school systems did not participate in the distribution of these funds.
You desire to know whether or not the State Board of Education, under the equalization authority granted it by the legislature has the right to authorize the payment of extra amounts from the State fund to the systems which were not permitted to participate in the Federal fund.
The distribution of the common school fund of the State is controlled by the Act of 1919 (Michie's Code, Section 1551(68)) which provides as follows:
"It shall be the duty of the State School Superintendent to disburse the common school fund in the following manner: He shall, annually, apportion equitably, the State school revenue to the different counties, and independent local systems of the State, upon the basis of the aggregate of' children between six and eighteen years of age inclusive in each county." It will be noted that the school population is made the basis for apportioning the common school fund. This applies, however. only to the general common school appropriation. The Act of 1926, known as the Common School Fund Equalization Act, authorizes the General Assembly to provide an equalization fund, "Which shall be disbursed by the State Board of Education for the purpose of more nearly equalizing the educational opportunities of the children of the several counties of the State." The Act further provides that the State Board of Education in distributing the equalization fund for the purposes declared by the Act,
"Shall take into consideration the possible returns from taxable values for school purposes, the extent to which local tax has been utilized, the educational needs, and the local inequalities existing in the several counties." It is further provided that no county shall participate in the equalization fund unless it levies at least five mills for a local tax for its public schools for that year. It is my opinion that in the distribution of the equalization fund the State Board of Education may exercise a broad discretion, keeping in mind the purpose and intent of the statute to equalize the educational opportunities of the school children of the various counties, and in determining the portion of the equalization fund which any county is entitled to receive the State Board of Education could properly take into consideration the fact that such county

275
had or had not been permitted to participate in Federal funds, and the amount to which it had been permitted to participate in such funds, if at all. Of course, the State Board of Education is restricted by the limitation of the Act which does not permit a county failing to qualify by levying a tax as therein provided to participate in the equalization fund, but subject to that limitation and restriction the matter rests broadly within the discretion of the State Board of Education.
I do not think the State Superintendent of Schools is vested with such a broad discretion in the apportionment of the common school appropriation. In this apportionment he is restricted to the basis of school population provided by law. I do think, however, that the State School Superintendent would be authorized to accord to a county not participating in Federal funds priority in the actual payment of State funds. That is, I think the State Superintendent of Schools is not absolutely bound to spend any funds presently available to apply to the common school appropriation over the entire State, but I think he would be authorized to make present payment to a county in immediate need of funds in preference to a county whose teachers have been paid by Federal funds. Of course, the Superintendent would not be authorized over the entire year to pay any county more than its pro rata share of the common school fund.
VOTERS-Authority and duties of county board of registrars.
May 31,1934
Honorable Eugene Talmadge Governor My dear Governor Talmadge:
I have your letter of May 30th requesting an opinion as to whether or not the registrars of a county are authorized to strike the name of a registered voter from the voters' book, or leave his name off the list of registered voters without giving him notice.
Section 65 of the Civil Code, (Sec. 34-604, Code of 1933) provides as follows:
"If the name of any person appears on the voters' book whose right to have his name placed upon the list of registered voters is questioned by the registrars, said registrars shall give said person at least one day's notice of the time and place of hearing the question; which notice shall be in writing and served upon said person personally or by leaving the same at his most notorious place of abode." In my opinion the removal of the name of a voter from the voters' book, or the failure of the registrars to place his name on the registered voters' list, without giving the voter the notice required by this section, would deprive the voter of a right to which he is entitled under the law, as he cannot vote unless his name is on the registered voters' list. If the voter's name is illegally removed from the voters'

276
book, or if illegally withheld from the registered voters' list, his remedy would be against the registrars to require them to restore his name on the voters' book or add his name to the list of registered voters, if, in fact, he is a qualified voter. If he is not, in fact, a qualified voter, the failure to give him notice would constitute no wrong of which he could lawfully complain because the absence of notice would not serve to remove his disqualification.
Irrespective of whether notice is or is not given, the statute expressly provides:
"No person shall vote or be allowed to vote at said general election, or any party primary to nominate the candidates for the offices to be filled at said general election unless his name is upon the said registration list so filed by said registrars." Civil Code Sec. 58 (34-404, Code of 1933) The .Code also provides: "That all persons whose names appear on the list of registered voters placed in possession of the election managers, and no others, shall be allowed to deposit their ballots according to law." Code Sec. 68 (Sec. 34-801, Code of 1933). It is my opinion that no voter is entitled to vote in the primary or general election unless his name appears on the list of registered voters. The remedy of any voter whose name has been illegally left off the lists is to proceed against the registrars to have his name placed on the list, either by supplementing the list or otherwise.
ELECTION-Dates of primary elections.
June 6, 1934 Honorable Eugene Talmadge, Governor My dear Governor:
This will acknowledge your verbel request for an opinion upon the facts stated by Mr. J. P. Horn of Leesburg, Georgia, relative to the legality of a primary election for representative for Lee County, which has been set by the County Executive Committee for June 20, 1934.
Section 129 of the Political Code (Sec. 34-3203, Code of 1933), specifically provides, among other things:
"Whenever any political party in this State shall hold primary elections for nomination of candidates for office, such party or its authorities, shall cause all candidates for nomination for Governor, State House officials, Members of Congress, United States Senators, Judges of the Superior Courts, Justices of the Supreme Court and Court of Appeals, Solicitors General and .Members of the General Assembly to be voted for on one and the same day throughout the State at such date as may be fixed by the State Executive Committee of such party." Also Section 138 (I) (Sec. 34-3201, Code of 1933) provides: "Whenever any political party in this State shall hold primary elections for nomination of candidates for U. S. Senators, Gover-

~77
nor, State House officials, Justices of the Supreme Court, and Judges of the Court of Appeals, such party or its authorities shall cause all candidates for nomination for said offices to be voted for on one and the same day throughout the State, which is hereby fixed on the Second Wednesday of September of each year in which there is a regular general election." The date for primary elections for nomination of candidates for members of the General Assembly has been fixed by the State Executive Committee as Wednesday, September 12, 1934. It is, therefore, my opinion that the representative from Lee County must be nominated at the primary to be held on September 12, 1934, the date fixed by the State Executive Committee for holding the State primary, and a candidate for representative nominated at a county primary held on any other date could not be the legal n9minee of the Democratic Party and would not be entitled to have his name placed on the ticket at the November election as the nominee of the Democratic Party. It has been the custom in some counties, usually followed in the year in which all county officers are nominated, to hold preferential primary elections for representative at the same time as the primary is held for county officers. This action, however, is not binding and a candidate for representative nominated at such an election is not and cannot be the nominee of the party unless he is again voted on and again nominated in the regular State Primary. The County Executive Committee might. hold a preferential primary for representative on June 20, 1934, but the result would not be binding on anyone and the candidate nominated in the primary would not be the nominee of the party and could not be the nominee of the party unless he was again nominated at the September Primary.
GOVERNOR-Governor without authority to permit fugitives from justice to give bond while awaiting extradition
June 18, 1934
Hon. Eugene Talmadge, Governor
1\Iy dear Governor: I have yourletter of June 16th requesting my opinion as to wheth-
er or not the Governor has authority to permit fugitives from justice from other States to give bond while awaiting extradition.
Section 1355 of the Penal Code (Sec. 44-304, Code of 1933) provides as follows:
""\Yhen a person, charged with the commission of an offense in some other State, shall flee into this State, and is pursued and caught, or some person in this State, finding, shall arrest him, it is the duty of the Governor, on oath filed in his office of the commission of the offense, and the identity and locality of the party, to issue his warrant for his arrest, as in other cases, and command his lodgment in any jail in the State for as long as twenty days, and if, at their expiration, there is no formal demand made by the

278
Governor of the State where the offense is alleged to have been committed, he shall be discharged from custody; but upon affidavit made before any proper officer of the commission of the offense, and of such intended application, the accused shall be held under it five days." It will be noted that under this section the statute makes it the "Duty of the Governor to . . . . issue his warrant for his arrest, as in other cases, and to command his lodgment in any jail in the State for as long as twenty days, and if at the expiration thereof, there is no formal demand made by the Governor of the State where the offense is alleged to have been committed, he shall be dischar~ed from cztstody." In my opinion this section clearly makes it the duty of the Governor to cause the fugitive to be held in jail for twenty days and provides that he shall not be discharged from the custody until the end of the twenty days. Since the purpose of the extradition statute is that the fugitive shall be promptly returned to the State from which he fled, and the statute does not expressly authorize the Governor to admit such fugitive to bail, but on the contrary expressly provides that the fugitive's warrant shall command his lodgment in jail for as long as twenty days, I am of the opinion that the Governor is not authorized to permit such fugitive to give bond while awaiting extradition.
ELECTIONS-Forms to be furnished by Governor to Ordinaries for General Election October 9, 1934
Honorable Eugene Talmadge, Governor
Dear Governor Talmadge: I have your request for my opinion with reference to the ballot
forms which, under the law, must be furnished by the Governor to the Ordinaries of the various counties for use in the general election of November 6, 1934.
Sections 86 and 87 of the Code, (Sees. 34-1401 and 34-1402, Code of 1933) seem to contemplate the furnishing of blank forms only and no reference is made to the listing of the names of any candidates on the ballot form. I am of the opinion, however, that these sections should be construed in connection with the Act of 1922 known as the Australian Ballot Law. This Department has heretofore furnished the Secretary of State its opinion with reference to the candidates who are required to qualify with him and the candidates who are required to qualify with the Ordinaries of the counties. It was our opinion then, and still is, that the Act of 1922 contemplates that candidates who are to be voted on over the entire State or in an entire Congressional District, should qualify with the Secretary of State, and that candidates who are to be voted on only in a county, or in a Senatorial District, should qualify with the Ordinaries. We, therefore, held that the candidates for Governor and

279
other State House offices, candidates for Solicitor General and Judges of the Superior Courts and candidates for Congress should qualify with the Secretary of State and that candidates for Senator and Representative and candidates for county offices should qualify with the Ordinaries. This ruling has been followed by the Secretary of State.
Construing the Code Sections referred to with the Act of 1922, I am of the opinion that the ballot form you send out should contain the names of qualified candidates for Governor and State House offices, Judges of the Supreme and Appellate Courts, Judges of the Superior Courts, and Solicitor General, and should be blank as respects the names of candidates for l\Iembers of the House and Senate and as respects candidates for county offices.
It would be proper to have the ballot form embody the names of the candidates for Congress, but since these candidates are to be voted for only in their respective districts it might be impracticable to so furnish the forms, as a separate form would be required for each Congressional District. I think, therefore, that it would be proper to leave the form blank as respects candidates for Congress, but that each Ordinary should be informed as to the qualified candidates for Congress from the District in which his county is situated.
ELECTION BALLOTS-Proper method of voting. Split Ticket
October 26, 1934 Hon. Eugene Talmadge, Governor My dear Governor:
I have yours of even date inclosing a copy of the official ballot and requesting my opinion as to the correct way to vote the same.
I think the conclusion you have reached is entirely correct. There is nothing in the Georgia law which prevents a voter from voting a split ticket. For example, the Democratic nominee for Congress from the Fourth Congressional District has opposition in the form of an independent candidate; if a voter desired to vote for this independent candidate and also desired to vote for the other Democratic nominees, he could make a check mark in the circle at the top of the Democratic ticket and strike the name of the Democratic nominee for Congress from the Fourth District. If he did nothing else, that would simply mean, of course, that he did not vote for the Democratic nominee, but he would have a right then to put a check mark in the circle on the independent ticket which would evidence his intention to vote for the independent candidate. If there was also on the ticket an independent candidate for some other office for whom he did not desire to vote, he could strike the name of that candidate.

~80
MILITIA-Payment of the expenses of the militia in active service
September 19, 1934 Hon. Eugene Talmadge, Governor of Georgia State Capitol Dear Governor:
I have investigated the matter of making provisions for the payment of the expenses of the militia of the State now engaged in active service.
Section 26-901 of the Code of 1933 defines insurrection as follows: "Insurrection shall consist of any combined resistance to the lawful authority of the State, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence." Section 40-201 of the Code makes it the duty of the Governor to see that the laws are executed. For this purpose he has power, as Commander-in-Chief, to call out the military whenever, in his discretion, the due enforcement of the process of the courts is so resisted and set at defiance as to require such interposition. Section 86-207 of the Code is as follows: "The Governor shall have power, in case of insurrection, rebellion, invasion, mob violence, combination to oppose the enforcement of law by force or violence, or imminent danger thereof, to order into the active service of the State any part of the militia that he may deem proper. When the militia of the State, or a part thereof, is called forth under the Constitution and laws of the United States, the Governor shall order out for service the National Guard, or such part thereof as may be necessary; and if the number available be insufficient, he shall order out such part of the unorganized militia as he may deem proper. During the absence of militia in the service of the United States, their State designation shall not be given to new organizations." Section 40-202 of the Civil Code is as follows: "In cases of invasion or insurrection, the Governor has power to call out all volunteer military companies, or the militia, or both, for the defense of the State, until such time as the General Assembly meets; and when so called into action, he has power to make all necessary provision for their transportation, accommodation, equipment and support." Under your proclamation of recent date calling into active service a part of the militia of this State, for the purpose of suppressing "open insurrection, rioting and rebellion" against the laws and Constitution of this State, the question of supporting and maintaining the militia on account of this active service in behalf of the State arises. You have ample authority under the last Code Section quoted to make all necessary provision for the "transportation, accommodation, equipment and support" of the militia. It is my opinion that the expenses incident to the calling out of the militia should be cared for by a loan procured by you in behalf of the State as provided for in Article 7, Section 3, Paragraph 1 of the Constitution (Code Section 2-5101) which is as follows:

281
"No debt shall be contracted by or on behalf of the State, except to supply such temporary deficit as may exist in the Treasury in any year from necessary delay in collecting the taxes of that year, to repel invasion, suppress insurrection, and defend the State in time of war, or to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, five hundred thousand dollars, and any loan made for this purpose shall be repaid out of the taxes levied for the year in which the loan is made." It will be noted that the only limitation on the borrowing power of the Governor under this provision of the Constitution is applicable to debts "created to supply deficiencies in revenue." In other words, there is no limitation whatever in the amount that may be borrowed for the other purposes stated, including the suppression of insurrection.
Under this provision of the Constitution you have unlimited power and authority to borrow all the funds that may be necessary to support the militia in active service under your recent proclamation. Any funds borrowed for this purpose could and should be used in defraying these expenses, and should be kept separate and distinct from all other funds.
Since there is no sufficient appropriation now for the payment of the military forces of the State when called into service for the suppression of insurrection, there is no fund out of which these expenses can be paid. They cannot be paid out of the general fund without an appropriation for the specific purpose. Therefore, it seems that the proper way to maintain and support the militia now in active service is by a loan as contemplated in the section of the Constitution quoted above. If a loan is obtained as suggested, the General Assembly at its next session can and should make a proper appropriation for its payment.
TREASURY-No authority for any surplus in treasury after the payment of appropriations to be used for common schools
September 19, 1934
Hon. Eugene Talmadge, Governor State Capitol
My dear Governor: Referring to our conversation in which you requested that I advise
you whether the law authorizes any surplus remaining in the Treasury after the payment of appropriations to be .used for the common schools I be"g to advise as follows:
In 1919 by an Act approved August 19, 1919, (Georgia Laws 1919, p. 288), it was provided that:
"From and after January 1, 1922, 50% of all revenues received by the State from all sources of income or taxation shall be used and expended for the support and maintenance of the common schools

of Georgia for the year in which said income and taxes are due and payable."
This was not an appropriation law and did not authorize the disbursement of funds from the State Treasury. It merely declared the legislative purpose that one-half of all the State income
should be used for the common schools. This Act did not amount
to an appropriation of State funds and did not authorize the payment of any amount to the common schools. This is true for the reason that the Constitution provides that:
"No money shall be drawn from the Treasury except by appropriation made by law." Civil Code 1910, Section 6640 (~-1811, Code of 1933).
In addition to the constitutional provision referred to Section 345 of the Civil Code (Section 47-50~, Code of 1933) provides that amounts appropriated by previous laws shall not be paid from the Treasury, unless they are embodied in the General Appropriation Act.
It thus appears that although the Act of l!H9 referred to makes provision for the use of one-half of the revenue for the support of the common schools it does not authorize its payment from the Treasury and it remains necessary that any sum paid to the common schools be appropriated by the legislature and carried in the General Appropriation Act.
Following the passage of the Act of 1919 the General Appropriation Act of 19~1, which made appropriations for the years 19~~ and 19~3, in recognition of the Act of 1919, made an appropriation of $4,~50,000 for the common schools for each of the years 19~~ and 19~3 and then provided that:
"Should the revenue of the State exceed the sum of eight million five hundred thousand ($8,500,000) dollars, then one-half of the excess of each year to be applied to said common or public schools." In the General Appropriation Act of 1923 making appropriations for the years 1924 and 19~5 an appropriation of $4,~50,000 was made for each year to the common schools and contained a provision
similar to that quoted above. This provision was as follows: "Provided, that should the total revenue of the State exceed the sum of eight million five hundred thousand ($8,500,000) dollars per year, then one half of the excess of each of said years is hereby appropriated in addition to the above appropriation in accordance with the Act approved August 19, 1919." . The quoted provision was not carried in the General Appropri-
ation Act of 19~5 nor has it been included in any appropriation Act since 19~3.
The provisions quoted above were of force only during the years for which appropriations were made by the Acts of 19~1 and 19~3, since the provision was in purpose and effect merely an additional appropriation to the common schools for the years in question.
I am advised that during these years the common schools were paid one-half of all the revenue in excess of $8,500,000.
For the years 1934 and 1935 the General Appropriation Act of 1933 appropriates a lump sum to the common schools. It makes no

283
provision of any sort for increasing the amount of the appropriation to the common schools over the lump sum mentioned by the Act. It does make provision for reducing the appropriation to the common schools as well as of other appropriations, except those specifically exempted, in the ratio that the appropriation made bears to any deficit in revenue. The Act thus provides that in case there is not sufficient revenue to pay all appropriations in full that they are reduced pro rata and the effect of this provision is to reduce the amount of the appropriation. It therefore seems to me that the payment to any department of State of any sum whatsoever in excess of its pro rata share of the revenue, as defined by the Act, would be unauthorized, since to the extent of any such overpayment the department would receive funds not appropriated to it. The socalled "grand-father clause" in the appropriation Act is an automatic balance clause which reduces not the amount available to apply to an appropriation, but the appropriation itself, in proportion to any deficit in revenue.
I can find no statute or provision of law which would authorize payment to the common schools of any surplus which might remain in the treasury after the payment of all other appropriations.
AGRICULTURE-Fees received by Commissioner of Agriculture from sale of stamps for peach and apple shipments must be turned in to State Treasury
July 13, 1933
Hon. T. M. Linder Executive Department State Capitol
My dear Mr. Linder: This letter is written in accordance with your verbal request that
we advise you whether or not, in our opinion, the Commissioner of Agriculture is authorized to use the funds realized from the sale of stamps to be attached to shipments of apples and peaches, as required by the Acts of 1927, and as amended in 1929, to pay for the inspection provided by that Act.
In 1927 the Legislature passed the Act regulating the shipment of apples and peaches, providing for grades and marks, providing for inspection, and prohibiting the sale and shipment of apples and peaches except under the provisions of the Act which require the fixing of stamps to the original packages when shipped by mail or express and the stamps to be attached to the bill of lading with reference to car lot shipments.
The Commissioner of Agriculture was charged with the duty of enforcing the provisions of this Act, and was authorized to appoint inspectors for that purpose. The Act was amended in 1929, the amendment appearing now as Code Section 2119 (10) in the 1930 Supplement of Michie's Code.

284
Prior to the Appropriation Act of 1931, it is my understanding that the fund derived froin the sale of these stamps was used for the purpose of enforcing the provisions of the Act and for the payment of the salaries of the inspectors.
By the Budget Act passed at the Extraordinary Session of the General Assembly in 1931, all funds paid out of the State Treasury for any purpose were required to be paid according to the quarterly budgets requisitioning allotments for the purposes specified in the requisition. These requisitions had to be approved by the Governor and allotments made accordingly.
In 1931, when the General Assembly made the appropriation to the Department of Agriculture, the sum of $300,000.00 was appropriated for the maintenance of that Department and it was specifically provided in the General Appropriations Bill that "from the above amount appropriated, to wit, $300,000.00, for each of the years 1932 and 1933, or so much thereof as may be necessary, there shall be expended sums sufficient to carry out the duties of the Department, such as administration, collection of agriculture statistics, administration of pure food and drug Acts, chemical laboratory, fertilizer inspection, feed inspection, fruit inspection, and the operation of the Bureau of Markets."
In 1927 the General Assembly passed the Neal Act, as you know, making it the duty of every Department, .Commission, Bureau or other branch or agency of the Government of the State, as therein provided, to collect and pay into the State Treasury all moneys, fees, commissions, penalties or other charges which they are authorized by law to collect. This Act further provided that the expenditures of the maintenance and support of every such Department, etc., should be paid out of funds in the State Treasury by warrant of the Governor drawn on appropriations duly made by the General Assembly.
There were certain provisions in this Act exempting certain fees as therein specified, but the exemptions did not, in my opinion, cover the fund derived from the sale of the stamps to be sold and used in connection with the shipping of peaches and apples.
Under the specific provisions of the Appropriations Act of 1931, the $300,000.00 appropriated to the Department of Agriculture by that Act was made to include the expenses of fruit inspection. In my opinion, expenses of fruit inspection include the salaries of inspectors required by the Peach and Apple Act of 1927.
In view of the specific provisions of the Act making the appropriation for the years 1932 and 1933, and in further view of the Act of 1927, when construed in connection with the Neal Act, requiring that these funds derived from the sale of the stamps be paid in to the State Treasury, I do not think that the Commissioner of Agriculture can legally use the fund derived from the sale of said stamps on the payment of the salaries of the inspectors whose duty it is to inspect the shipments of apples under the provisions of the Act of 1927.

285
I think he is necessarily required to turn this fund into the State Treasury. The appropriation to the Department of Agriculture includes all item~ of maintenance and support fcir that Department and includes the salaries of the fruit inspectors.
EDUCATION-Construction of Act authorizing Governor to borrow money to pay public school teachers
February 13, 1933
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
In response to your request for a construction of an Act approved July 18, 1927, page 167, (Code 1933, Sections 32-1301, 32-1302, 32-1303), authorizing the Governor to borrow money for the purpose of paying the public school teachers of the State, I beg to advise as follows:
This Act was passed pursuant to the Amendment to the Constitution ratified in November, 1926, authorizing an increase in the public debt of the State in the sum of $3,500,000.00, for the payment of school teachers only.
By Section 1, authority is conferred upon the Governor to negotiate a loan or loans for the purposes indicated, not to exceed the constitutional limitation, to be repaid each year out of the common school appropriation, and the interest thereon to be paid out of the general funds of the State.
By Section 2 of this Act the Governor is authorized and empowered, at any time in his discretion, to use for the purpose of paying school teachers and without the payment of any interest thereon, any funds in the Treasury which may have been allocated for any special purpose, so as to obviate the necessity of increasing the public debt of the State, and to avoid the payment of interest. It is further provided by this Section that when any allocated fund has been used for the purpose of paying school teachers, it shall be the duty of the Governor to replace such fund by borrowing the same if necessary, so as not to interfere with the use of the allocated funds for the purposes for which they were allocated.
It is provided by Section 3 of this Act that the Governor shall not, during any calendar year, employ or use allocated funds in exces~ of the $3,500,000.00 borrowing power provided for by the Act.
In my opinion, the intent and purpose of Section 2 of this Act was to authorize the use by the Governor of any allocated funds in the Treasury not presently needed for the purpose for which allocated, for any purpose for which the Governor might borrow money under the provisions of this Act, the intent of the Legislature being that the Governor should not borrow money to pay school teachers and pay interest thereon when allocated funds were in the Treasury and were not then needed for the purposes for which they were allocated.

286
Since it is provided by Section I of the Act referred to that the principal sum borrowed by the Governor in any year shall be repaid out of the common school appropriation, and since the repayment of such loans out of the common school appropriation would necessarily reduce the amount of such appropriation available for current salaries of teachers, it is my opinion that the Governor would be authorized to make such temporary use of allocated funds for the payment of any existing debt incurred to pay teachers as he would be authorized to make of such allocated funds to pay teachers in the first instance.

GOVERNOR-Use of Emergency Fund in connection with Welfare Department

April 4, 1933

Hon. Eugene Talmadge, Governor State Capitol

1\Iy dear Governor:

I have your letter of April 4th in which you request an opinion as

to whether or not you would have the right to set apart a portion of

the Emergency or Contingent Fund to the State Welfare Depart-

ment. With this letter you inclose a letter written by Mr. Edgar

Watkins to 1\Ir. Julian Boehm, Vice-president of the Children's

Service Society of Georgia.



Section 8 of the Budget Act of 1931 provides for an emergency or

contingent appropriation as follows:

"Contingency appropriation. To the end that all expenses of the

State may be brought within the budget, the budget appropri-

ation bill shall also contain a specific sum as a contingent or

emergency appropriation. The manner of the allocation of such

contingent or emergency appropriation shall be as follows: Any

department, commission, board, institution, or other agency of

the State, desiring an allotment out of such contingency or emer-

gency appropriation, shall, upon forms, prescribed by him, present

such request in writing to the Director of the Budget, with such

information as he may require, and the Director may allow or

disallow the request in his discretion."

The General Appropriation Act of 1931, making appropriations

for the years 1932 and 1933, contains an emergency appropriation of

$150,000.00 for each year. It also contained the following proviso

with reference to the expenditure of the emergency appropriation:

"Provided, the above amount appropriated shall not be directly

disbursed in payment of any obligation of the State, but shall be

alloted to the units of the State in case of an emergency, said al-

lotment to be transferred to the credit of the unit with which the

emergency arises, shall be allotted as according to law, Acts 1931,

page 98, section 8. Provided further, that the unused portion of

the above appropriation on December 31, each year, shall lapse

and cease to be available,"

!t87

Under section 8 of the Budget Law the Governor, who is the

Director of the Budget, may, in his discretion, allow an allotment

out of the emergency appropriation to any department, commission,

board, institution, or other agency of the State which may request

the same. However, under the quoted provision of the Appropri-

ations Act, such allotments are to be made only in case of an emer-

gency.

In my opinion, the departments, boards, institutions, etc., of the

State to which the Governor may make allotments from the emer-

gency fund are the departments, boards and institutions which are

supported in whole or in part by appropriations made by the General

Assembly; and the purposes for which such allotments from the

emergency funds may be made are the purposes for which such ap-

propriations are made.

Under Section 44-a of the Reorganization Act of 1931 the Board

of Public Welfare is abolished, and its functions, duties and powers

are transferred to the Board of Control.

In my opinion, you have the right as Governor, in your discretion,

to set apart to the Board of Control, a portion of the emergency

fund, to be used by the Board of Control in the administration of the

powers, duties, and functions formerly exercised by the Board of

Public Welfare and which are now exercised by the Board of Con-

trol. You would not be authorized, however, in my opinion, to

make such transfer of funds from the emergency appropriation for

purposes not contemplated by the duties which were imposed by law

upon the Board of Public Welfare.



The Board of Public Welfare, under the provisions of the Act of

1919 (Michie's Code of 1926 Section 1921 (82)) exercised duties which

were "strictly visitorial and advisory, without administrative or

executive powers", except as might have been thereafter provided by

law. There was no subsequent grant of power to the Board of Pub-

lic Welfare. Accordingly, the duties of the Board of Control, in so

far as it functions as a Board of Public Welfare, are strictly visit-

orial and advisory. Functioning as the Board of Public Welfare,

the Board of Control has only the power which was conferred upon

the Board of Public Welfare, and an allotment from the emergency

fund for any purpose other than an exercise of these powers and

duties would not be authorized.

I do not know the purpose for which an allotment to the Welfare

Department is desired. I judge, however, from the letter of Mr.

Watkins that this allotment is desired in order that the welfare

department may carry on some activities which are in addition to

the strictly visitorial and advisory duties imposed by law upon the

Board of Public Welfare. If that is true, in my opinion, the allot-

ment would not be authorized.

288

AGRICULTURE-Sale of insecticides

April20, 1938

Hon. Eugene Talmadge, Governor

State Capitol

Dear Governor Talmadge:

I am in receipt of a copy of your letter of April 12th to Honorable

John C. Parker, of :Moultrie, with reference to the construction by

the Department of Agriculture of the Act approved August 20th,

1927, creating the Board o Pharmacy, as it relates to the sale of

insecticides.

I have conferred with the Department of Agriculture and with the

Chief Drug Inspector about this matter.

_

The question presented by Mr. Parker involves construction of a

portion of Section 18 of this Act as follows: "This item shall be construed in the interest of the public health and shall not be construed to prohibit the sale by merchants of

home remedies, not poison, or the sale by merchants of prepara;-

tions, commonly known as patent or proprietary preparations, when sold only in the original and unbroken packages, Paris Green, arsenate of copper, arsenate of lead or preparations

containing any of these articles used for killing Lincoln bugs,

cabbage worms, caterpillars, and all similar insects, provided the

labels, cartons, and packages containing such preparations have the word "POISON" printed across the face, and conform to the

to the United States Pure Food and Drug Act, and general mer-

chants other than druggists shall not be required to register under the provisions of this Act." It will be noted that this item expresses the intent of the General Assembly that the sale by merchants of "preparations commonly

known as patent or proprietary preparations when sold only in the original and unbroken package," shall not be prohibited. It will

further be noted that the Assembly expressed the intent that the

sale of arsenate of copper, Paris Green, and arsenate of lead, or preparations containing any of these articles and used for killing insects, would not be prohibited.

At the time of the passage and approval of this Act arsenate of copper, Paris Green and arsenate of lead were the preparations com-

monly used as insecticides, and these were about the only prepara-

tions used for such purposes. At the present time arsenate of copper is rarely, if e.ver, used. Paris Green and arsenate of lead are still used to a limited extent. The poisonous insecticides now commonly used are calcium arsenate, lead arsenate, magnesium arsenate,

sodium fluoride, sodium arsenite, copper sulphate, and Paris Green.

In addition, other non-poisonous insecticides, such as paradichloro-

benzene, sulphur, lime, oil, fish soap, zinc sulphate, nicotine suisulphate, pyretherum derris, etc., are commonly used.

The poison base commonly used in making ant poisons which are regarded as insecticides is sodium arsenite, which, undiluted, is very poisonous, but which, when mixed with inert ingredients, as is

~89
always done, to form ant poison, is no more toxic or poisonous, so far as human beings are concerned, than insecticides made from arsenate of copper, Paris Green, arsenate lead, calcium arsenate, magnesium arsenate, sodium fluoride or copper sulphate.
In interpreting Acts of the General Assembly, it is a fundamental rule that the Courts shall look diligently for the intention of the legislative body, keeping in view, at all times, the old law, the evil and the remedy. (Civil Code of 1910, Section 4 (9); Sec. 10~-10~, Code of 1933).
The Act of 19~7 now under consideration and previous laws which it amended, were designed for the protection of the public and the public health in the sale and dispensation of medicines and drugs or poisons. It is the declared intent of the General Assembly that the Act shall not be construed to prohibit the sale by merchants, not druggists, of proprietary preparations, and shall not be construed to prohibit the sale of the insecticides therein specifically mentioned. Thus the exceptions specifically mentioned by the Act do not purport to be all inclusive, and the intent of the Act is to be determined, not merely from the language authorizing the sale of these particular poisons, but from the language of the statute as a whole in the light of the declared intent and purpose of the General Assembly.
In my opinion the phrase "proprietary preparations," as used by the Act, does not include merely medicinal preparations used for the treatment of diseases, but any proprietary preparations, even though not used for the treatment of disease, which might be sold in the original package as prepared by the person compounding the same.
It is further my opinion that it was the intent and purpose of the Act to permit the sale by merchants, in the original packages, not only of the particular poisonous insecticides specifically mentioned by the Act, but of other poisonous insecticides of a similar nature and used for the same purpose when properly marked. Accordingly, it is my opinion that a proprietary preparation, properly branded, prepared to be used as an insecticide, and containing poisonous substances other than those mentioned by the Act but of a similar nature, when properly labeled, may be sold in the original packages as insecticides, by persons other than licensed druggists.
STATE BOARD OF NURSES EXAMINERS-Validity of regulations
May 1, 1933 Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
I have your letter of April ~8th inclosing a communication from Dr. A. R. Rozar, President of the Board of Directors of Oglethorpe Private Infirmary, Macon, Georgia. Dr. Rozar requests that you obtain an opinion from me with reference to the validity of regula-

290
tions recently issued by the State Board of Nurses Examiners of Georgia.
The qualifications prescribed for applicants for registration as graduate nurses are set forth by Section 6 of the Act of 1927 (Michie's Code, 1930 Supplement, Section 1711 (12)) as follows:
"Be it further enacted by the authority aforesaid that each applicant for registration as a graduate nurse must be at least twentyone (21) years of age, of good moral character, a graduate of a regular chartered training school for nurses, connected with a general hospital or sanatorium (in which medical, surgical, obstetrical and pediatric cases, and where men, women and children, are treated) where three (3) years of training with a systematic course of instruction on the above mentioned classes of cases is given in the hospital or other educational institution, or must have graduated from a training school connected with a hospital of good standing, supplying a three (3) years' training corresponding to the above standard, which training may be obtained in two or more hospitals. All qualifications of the applicant shall be determined by the StateBoard of Examiners of Nurses for Georgia, which is empowered to prescribe such examinations for the applicants as will best test their fitness and ability to give efficient care to the sick. All applicants at the same examination shall be subject to the same kind of examination, provided that the said Board shall have the power to grant advance credit, not in any case of excess of twelve (12) months for didactic and laboratory work done in an accredited college, or for other credits either time or scholastic earned in an institution other than the one from which graduated."
It will be noted that the training school referred to must be connected with a general hospital or sanatorium in which medical, surgical, obstetrical and pediatric cases are treated and where men, women and children are treated. Under this Section whether the applicant graduates from a chartered training school for nurses or from a training school connected with a hospital of good standing, the course of training must meet the standard above set forth. It will further be noted that this Section expressly provides that "all qualifications of the applicant shall be determined by the State Board of Examiners of Nurses for Georgia."
Since the Act itself does not purport to classify hospitals in connection with which training schools for nurses are operated, other than to require that they shall meet certain standards, and since the Act expressly gives the Board of Examiners authority to determine the qualifications of each applicant, it is my opinion that the Board is authorized to make such classifications of the hospitals in connection with which training schools are operated as may be reasonable and just to effectuate the intention of the Act. The intent and purpose of the Act is that the training should be obtained in schools connected with hospitals in which medical, surgical, obstetrical and pediatric cases are treated and to which men, women and children are admitted. The classification should be made upon the basis of the

291
nature of the diseases treated, the surgical operations performed, and the classes of patients admitted to the hospital.
I judge from Dr. Rozar's letter that nurses in training at certain hospitals are required to affiliate with some other hospital for a stated period. If the hospital at which such nurses are in training does not meet the requirements of the Act, in my opinion, the State Board is authorized to require such nurses to affiliate with some other hospital which does meet the requirements for such reasonable period as may be necessary to qualify such nurses within the meaning of the law.
PENSION-Disposition of pension due at death of pensioner
May 31,1933 Ron. Eugene Talmadge, Governor State Capitol My dear Governor:
I ha\Ce your letter of the 29th with inclosures, with reference to the pension due Mr. John A. Daniels of Chattooga County at the time of his death on October 21, 1931.
From the record forwarded me by Mr. Henson, Director of the Veterans' Service Office, it appears that there was at the time of the death of Mr. Daniels, a balance due him on account of unpaid pensions for the year 1930 of $160.00, and that he had not been paid for the months of June and July of 1981. You desire to know how much of this unpaid pension may be applied to his funeral expenses and the expenses of his last illness under the Act approved August. 15, 1904, as amended by the Act of 1919. The Act of 1904, which is embodied in the Penal Code of 1910 as Section 1504 (Sec. 78-221, Code of 1933) provides as follows:
"Pensions to be paid to Ordinary, When. In all cases under the pension laws of this State, whenever a pension has accrued to any pensioner who dies before the payment of the same, the pension commissioner is authorized, and it shall be his duty, to pay the same over to the Ordinary of the county of such deceased pensioner; Provided, the pensioner dies in this State and leaves no widow or dependent child or children, or any estate of any kind or value, to be by him paid to his widow, and, if no widow, applied to the payment of his or her funeral expenses, and to such expenses of last illness as may be shown by a sworn statement of such, to be attached to the voucher when presented for payment. If there be any surplus, the same to be refunded to the State Treasury." The amendment of 1919 simply related to the citizenship of the pensioner, and the length of time he may have resided out of the State before losing the benefit of the Act of 1904. The amendment is not material to the instant question. At the time of the passage of the Act of 1904 the amount of pensions payable to each Confederate Veteran was $60.00 per year and the same was payable annually on or about the 15th of May of each

292
year, in a lump sum. Thereafter the amount of the pension was increased to $100.00 per year, but the provision relating to a lump sum annual payment was not changed. Still later the amount of the pension was increased to $200.00 per year and provision made for quarterly payment. The pension payable at the time of the death of Mr. Daniels was, under the Act of 1929, which became effective January 1, 1931, $360.00 per annum "to be paid monthly on the first day of each month." It will thus be seen that the pension payable under the present law does not accrue annually but does accrue monthly.
The purpose and intent of the General Assembly in passing the Act of 1904 should be determined in the light of the conditions then existing, the amount of the pension then payable, and the time and manner of payment. The caption of the Act of 1904 is as follows:
"An Act to authorize and direct the Pension Commissioner of this State to pay over to the Ordinaries of the respective counties of this State the pensions that may now be due or that may hereafter accrue to any pensioner who may die before the same can be paid to said pensioner." The manifest intent and purpose of the Act of 1904 was to pro~ vide for the application of the pension, in a case where the pension accrued and the veteran died before the time for payment arrived. That is, to take care of those cases in which the veteran died between January 1 and ]\fay 15th of any particular year, since the pension accrued on January 1, but was not payable until May 15th. The Act related to the annual pension, and could not be said to have had in contemplation any possible arrearages of pensions. This is true for the reason that it was never contemplated by the statute that funds for the payment of pensions would not be available. For these reasons it is my opinion that the Act of 1903 relates only to the pension for the year in which the veteran dies, and that it does not relate to pensions for previous years which were not paid for lack of funds. Applying the Act of 1904 to the pension now payable under the Act of 1929, it is my opinion that the provisions for applying the accrued pension to funeral expenses relates only to the monthly pension which has accrued during the year in which the veteran dies. Specifically with reference to the pension of Mr. Daniels, it is my opinion that under the Act of 1904 the pension to him for the months of June and July of 1931, may lawfully be applied to the payment of his funeral expenses. It is my opinion that the past due and unpaid pension for the year 1930 can not lawfully be applied to his funeral expenses. Mr. Henson has brought to my attention an order promulgated by a former Pension Commissioner in which the amount to be paid on funeral expenses is arbitrarily in each case. In my opinion there was no authority of law for this order and it is wholly ineffective. The amount now applicable under the Act of 1904 to the funeral expenses of the deceased veteran is the unpaid pension which has accrued monthly, prior to the death of the veteran, during the year in which he dies.

29S
NATIONAL FORESTS-How purchased in Georgia
August 4, 1938
Hon. Eugene Talmadge, Governor State Capitol
My dear Governor: Your letter of yesterday enclosing letter from President Roosevelt
is acknowledged. It appears that the President signed an order allotting $20,000,-
000.00 for the purchase of lands for National forest purposes. He states that he has particularly in mind the need for a substantial enlargement of National Forest in the Southern pine belt, where the growth of timber is rapid and abundant, and where unusual opportunities exist for effective work in forest conservation by the Civilian Conservation Corps during seasons when inclement weather militates against such work in other regions.
He further states that no provision is contemplated for the purchase of Southern pine lands in Georgia, due to the fact that the consent of the State has not been granted by the State of Georgia, except in relation to the mountainous section in the North end of the State, and to the Okefenokee, which is in a most desirable pine area for Federal management.
The question presented by your letter is, "Is there any way these lands could be purchased in Georgia this year?"
Under the provisions of Section 516 of Title 16, U. S. C. A., the Secretary of Agriculture is authorized to purchase in the name of the United States such forested cut-over or denuded lands within the watersheds of navigable streams as in his judgment may be necessary to the regulation of the flow of navigable streams, or for the production of timber, where such lands have been approved for purchase by the National Forest Reservation Commission. The price or prices are fixed by that Commission.
In Section 516 above referred to, will be found the following provision:
"No deed or other instrument of conveyance shall be accepted or approved by the Secretary of Agriculture under this Section until the Legislature of the State in which the land lies shall have consented to the acquisition of such land by the United States for the purpose of preserving the navigability of navigable streams." By the provisions of the next succeeding Section, to wit: Section 517, the Secretary of Agriculture may do all things necessary to secure the safe title in the United States to the lands to be acquired under the provision of Section 516. It is further provided that, "No payment shall be made for any such lands until the title shall be satisfactory to the Attorney General and shall be vested in the United States."
The question of the Constitutionality of the provisions of the above referred to Section was passed upon by the Federal District Court in Virginia last year. The Sections were held to be Constitutional.
United States v. Griffin (D. C. Va. 1932) 58 Fed. 2nd 674

294
In United States v. Graham and Irvine (D. C. Va. 1917) it was held:
"Where a State has given the consent to acquisition of land for forest reservation the United States has Constitutional authority to to condem land desired for such reservation in accordance with this Section and Section 516, and in accordance with Sections 257 and 258 of Title 40, public buildings, property, and works." The General Assembly of Georgia in 1901 (Acts 1901, page 84) passed an Act, the caption of which was as follows: "An Act to give consent by the State of Georgia to the acquisition by the United States of such land as may be needed for the establishment of a National Forest Reserve in said State." Under the above captioned Title, by the provisions of Section 1 of that Act, it was provided as follows: (Quoting the pertinent provisions of said Section): "That the consent of the State of Georgia be, and is hereby given to the acquisition by the United States by purchase or gift, or by condemnation according to law, of such lands in the mountain region of Georgia as in the opinion of the Federal Government may be needed for the establishment of such a National Forest Reserve in that region . . . . . . . . and provided that in all condemnation proceedings, the rights of the Federal Government shall be limited to the specific object set forth by the laws of the United States in regard to forest reserves." In 1917, the General Assembly of this State amended the Act of 1901 by changing the above quoted provisions of Section 1, so as to read as follows: "That the consent of the State of Georgia be and is hereby given to the acquisition by the United States by purchase or gift, or by condemnation according to law, of only such lands as may be contracted, proposed, or offered for sale in writing by the ostensible owner to the United States, in which the owner consents to such condemnation of such lands in the mountain region of Georgia as in the opinion of the Federal government may be needed for the establishment of such a National Forest Reserve in that region; and provided that in all condemnation proceedings the rights of the Federal government shall be limited to the specific objects set forth by the laws of the United States in regard to forest reserves." (Acts 1917, page 182) In 1918, the General Assembly of this State again amended Section 1 of said Act by striking from said Section the words which had been added by the Act of 1917, and went further and added an additional proviso at the end thereof to this effect: "And provided that as much as 200 acres of any contiguous tract of land occupied as a home by a bona fide resident of this State shall be exempt from condemnation unless the written consent of the occupant to the condemnation of his land shall first be obtained,"
so that said Section 1 as amended by the Act of 1918 reads as follows: "That the consent of the State of Georgia be, and is hereby given

~95
to the acquisition by the United States by purchase or gift, or by condemnation according to law, of such lands in the mountain regions of Georgia as in the opinion of the Federal government may be needed for the establishment of a National Forest Reserve in that region; and provided that in all condemnation proceedings the rights of the Federal government shall be limited to the specific objects set forth by the laws of the United States in regard to the forest reserve, and provided that as much as two hundred (200) acres of any contiguous tract of land occupied as a home by a bona fide resident of this State, shall be exempt from condemna tion unless the written consent of the occupant to the condemna tion of his land shall first be obtained." (Acts 1918, pages 207208) I respectfully call your attention to the fact that the expressed purpose of the Legislature in enacting the provisions above referred to is set forth in the caption hereinabove quoted. From that caption, it appears that the intention of the General Assembly was to give consent by the State of Georgia to the acquisition by the United States of such lands as may be needed for the establishment of a National Forest Reserve in said State. It is true that in the body of the Act itself, it is provided that the consent of the State was given to the acquisition by the United States of such lands in the mountain regions of Georgia as in the opinion of the Federal government may be needed for the establishing of a National Forest Reserve. Therefore, a strict construction of the Act would probably limit such lands as might be acquired by the United States for the establishment of a National Forest Reserve to the mountain region of Georgia; on the other hand, a liberal construction of this Act and one which would give full expression to the intent of the Legislature as expressed by the caption of the Act, will not so limit the lands to the mountain region of Georgia, but would permit the acquisition by the United States of such lands as may be needed for the establishment of a National Forest Reserve in said State. Although, under the strict interpretation above referred to, if it should be held that the State of Georgia has given its consent to the acquisition by the United States of such lands in the mountain region of Georgia only, then certainly any lands in the mountain region of Georgia, as in the opinion of the Federal government may be needed for the establishment of such a National Forest Reserve in that region, may be acquired by the United States.
I do not think that even under this strict construction of the Act, this limits lands to the mountain region of North Georgia, but should apply to any lands in any mountain region anywhere in the State of Georgia.
The President, having in mind the enlargement of National Forests in the Southern pine belt, might be directed to the fact that in the neighborhood of Hamilton, Chipley, Manchester and Warm Springs, Georgia, there are vast mountainous regions known as Pine Mountain, which regions are in fact mountainous regions of Georgia and

296
might properly be included in the development of a National Forest in the Southern pine belt. The President himself is familiar with the fact of the existence of this mountainous region of Georgia referred to above, and is also familiar with the fact that, as the name indicates, it is properly within the Southern pine belt in this State.
Aside from what has been said with respect to the strict interpretation and construction of the Act of the General Assembly of Georgia hereinabove referred to, if the more liberal construction as to the intent and meaning of the General Assembly of this State at the time of the enactment of the Statute giving consent of Georgia to the acquisition of land by the United States in this State, is applied, and it is thereby determined that such intention on the part of the General Assembly which is expressed in the caption of the Act, was to give the consent of the State of Georgia to the acquisition by the United States of such lands in this State as may be needed for the establishment of a National Forest Reserve in this State, then we believe that the President would be authorized under the broad powers conferred upon him by the Constitution and laws of the United States, and especially with reference to the administration of the fund in question, to direct the purchase of lands for National Forest purposes in this State.
In case of Church of Holy Trinity v. United States 143 U.S. 457 (36 L. Ed. !2!26), the Supreme Court of the United States said: "A thing may be within the letter of the Statute and yet not within the Statute, because not within its spirit nor within the intention of its makers. Among other things which may be considered in determining the intention of the Legislature is the title of the .!let which may help to interpret its meaning." If the above statement be true, then it appears that the converse would equally be true, and that when the particular Act is not within the letter of the Statute, but is within the spirit of the Statute, and within the intention of the makers as expressed by the title of the Act, that a proper construction and interpretation of its meaning would permit the Act or would legalize the Act. In other words, according to the letter of the Act itself, it might appear that the lands which might be acquired by the United States government would be confined to the mountain regions of the State, but if it appears that the spirit of the Act itself and the intention of the General Assembly of this State, as expressed by the title of the Act is to give the consent of this State to the acquisition by the United States of such lands as may be needed for the establishment of a National Forest in said State, then such lands in this State as may be so needed, might be thus acquired by the United States.
It seems that the liberal construction should be given in view of the existing National emergency, which when taken into consideration by Congress at the time of enacting the legislation providing for the expenditure of the funds now in question. If the Attorney General of the United States could so construe the Acts, we feel that the President could feel fully justified in carrying out his plan to

297
enlarging the National Forest in the Southern pine belt, by purchasing lands in the State of Georgia for the development of aNational Forest Reservation in the pine belt of this State.
In case of United States v. Gettysburg
E16le0cutr.ics.R6a6il8way Company
(40 L. Ed. 576). the United States Supreme Court said:
"The United States may condemn land whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution, and the preservation of the battlefield of Gettysburg with the leading tactical positions properly marked with tablets, is a use which comes within the Constitutional power of Congress to provide for by condemnation of lands. The quantity of land to be taken for a public use is a legislative and not a judicial question." (Quoting from headnotes 1, 3 and 6.) On page 381 of the Law Edition volume, Mr. Justice Peckham gave the following quotation from Dillons Work on Municipal Corporations: "When the legislature has declared the use or purpose to be a public one, its judgment will be respected by the Courts unless the use be palpably without reasonable foundation . . . . The rule commends itself as a rational and proper one." Therefore, we think that if the broad rule of liberal construction is applied in this case, and we certainly think that the existence of the National emergency, under which the funds were provided, would warrant this kind of a construction, that the consent of this State has been given which would authorize the United States to acquire such lands as may be needed in this State for the establishment of a National Forest Reserve in said State, and we confidently state that if the strict rule of construction is to be applied rather than the liberal rule, then certainly the consent of the State has been given which would authorize the United States to acquire any lands in the mountain regions of Georgia, including the Pine Mountain region in the vicinity of Manchester, Warm Springs, Chipley and Hamilton, and other Georgia towns, through which this range of mountains runs.
EDUCATION-Compensation payable by State to county superintendent of schools
December 13, 1933
Hon. Eugene Talmadge, Governor State Capitol
Dear Governor: Yours of the 11th instant requesting an opmwn as to whether
under the law the State is liable for the payment of $50.00 per month to county school superintendents, received.

~98
It appears that the General Assembly in 1911 passed an Act revising the public school laws of Georgia, and under Section 15, Georgia Laws 1911, p. 103, it is provided:
"Be it further enacted, That each County School Superintendent within the State of Georgia shall receive a minimum salary of $450.00 per annum, and an annual allowance of $150.00 for the purpose of defraying the expenses of visiting the schools within his county at least every sixty (60) days, or a total of $600.00, which salary shall be paid out of the school funds of Georgia monthly; and in addition thereto, the County Board of Education shall allow such additional compensation for the services to be rendered as may be in their judgment proper and just." I have made a close study to determine whether this provision of law has ever been repealed, amended or declared unconstitutional by our courts. I find that this provision is still in effect.
ENTOMOLOGIST-State Entomologist may serve as a member of special committee to review the work of the Federal Bureau of Entomology in control of cotton insect pests
February ~. 1934
Hon, Eugene Talmadge, Governor State Capitol My dear Governor Talmadge:
I have your verbal request for an opinion in which you state the State Entomologist has been designated by the Chief of the Bureau of Entomology of the United States Department of Agriculture to serve as a member of a special committee to review the work of the Federal Bureau of Entomology in the control of cotton insect pests. You desire to know if the acceptance of this appointment by the Entomologist of Georgia will render him ineligible to continue to serve as an official of this State.
It is my information that the members of the committee will serve without pay but that their actual traveling expenses, including expenses of subsistence not exceeding $5.00 per day, will be paid by the Federal Government. The committee will act in an advisory capacity only and will perform no duties for the Federal Government other than to review the cotton insect control work being carried on by the Federal Government which is mutually advantageous to the cotton farmers of this State and of other States, and therefore, to the Department of Entomology of Georgia and the Department of Entomology of the United States. The members of this committee will take no oath of office under the Federal Government and will hold no commission from the Federal Government, but as stated will serve only in an advisory capacity.
Section 258 of the Civil Code of Georgia (Sec. 89-101, Code of 1933) provides that "persons holding any office of profit or trust under the Government of the United States" shall be ineligible to hold any civil office in this State; and Section 268 of the Civil Code

299
of Georgia provides that any office in this State is vacated, "by voluntary Act or misfortune of the incumbent, whereby he is placed in either of the conditions specified of ineligibility to office, which shall operate from the time the fact is ascertained and declared by the proper tribunals."
It is my opinion that the members of the committee referred to will not hold any office of profit or trust under the Government of the United States, in as much as they will take no oath of office, hold no commission, and receive no compensation, and will serve only in an advisory capacity with reference to the matters which come within the jurisdiction of the State Entomologist of Georgia as an official of this State. I am, therefore, of the opinion that the State Entomologist of Georgia may legally serve on the committee referred to without vacating his office as State Entomologist or rendering himself ineligible to hold this office.
TAXATION-Occupation tax on lumber dealers and penalty
April 18, 1934
Ron. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your letter inclosing communication from Messrs. Bright & Brannen of Savannah.
I also have a letter from these gentlemen and have written them in detail, a copy of which letter I enclose.
The facts of the case are as follows: Certain lumber dealers in Savannah brought suit to enjoin the occupation tax levied by the General Tax Act. Certain other lumber dealers did not join in this suit but withheld payment of the taxes pending a disposition of the suit. Those who brought the suit had to give a bond to pay the taxes as a condition precedent to obtaining the injunction. The Supreme Court decided against them. The tax collector then called on me for advise as to whether the sureties on the bond were liable for taxes accruing after the suit was instituted or whether they were only liable for taxes which were delinquent at the time the injunction was obtained. I advised the tax collector that in my opinion these sureties could not be held responsible for anything except the taxes which were delinquent when the suit was filed, together with the penalties thereon. This ruling did not effect the liability of the taxpayers who actually brought the suit for taxes and penalties thereafter accruing. Messrs. Bright and Brannan are in error in their conclusion that the taxpayers who fought the tax will thereby obtain an advantage over those who did not fight the tax. Under the law they are all subject to the tax and the penalty. Of course, they had a right to contest the liability but in doing so they necessarily assumed the risk of having to pay the additional amount provided by law as a penalty after the case was decided against them. Those who did

300
not go into the litigation but who elected simply to withhold payment of the taxes pending a decision of the court as to the liability of the litigants necessarily took the same risk.
I have instructed the tax collector that all of these taxpayers including those who litigated and those who did not litigate are liable for the tax and the penalty fixed by the statute. The Supreme Court has held that when the tax is not paid within the time prescribed by the statute the penalty accrues by operation of law and becomes a party of the tax. There is no authority in any department of the State Government to waive such penalty.
I regret, of course, to see any taxpayer penalized but the penalty is imposed by law and not by the action of any official of the State Government, and all the taxpayer has to do to avoid the penalty is to pay the tax within the time prescribed. If he elects not to do this but to contest his liability for the tax, he must necessarily take the risk of having the penalty accrue against him if the courts decide he owes the tax.
JUDICIARY-Trial judge in misdemeanor cases has no power to probate a part of the sentence after the defendant has begun serving sentence.
May ~s. 1934 Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
I have your letter of the twenty-second in which you request my opinion as to whether or not the trial judge in misdemeanor cases has the power to probate a part of the sentence after the defendant has begun serving the sentence.
The question involves the same principle dealt with in the letter from this office to which you make reference. The only circum-
a stances under which a judge of a trial court is authorized to modify
the sentence imposed in criminal case after the adjournment of the term or after the sentence has been entered upon the records of the Court and the defendant has entered upon its execution, is where the judge has retained jurisdiction of the case by virtue of the pendency of a motion for a new trial. Where no motion for a new trial is pending and the sentence has been entered upon the records of the court the trial judge has no power to modify or enlarge it either during the term or after the adjournment of the term.
It was held by the Supreme Court in the case of Auldridge v. Womble, 157 Ga. 64, that the principle of law above stated was not altered by the provisions of the Act relating to the probation of offenders in certain cases.
I am, therefore, of the opinion that in a case where no motion for a new trial is pending a trial judge has no authority to modify a sentence which has been regularly entered on the Minutes of the court, after the defendant has entered upon its execution, either during the term or after the adjournment of the term by providing that an

801
unexecuted portion of the sentence may be served on probation and without the confines of the chaingang.
The trial judges in this State are authorized by the Act of 1913 to permit defendants in misdemeanor cases to serve the sentence on probation without the confines of the chaingang, but provision therefor must be made at the time the sentence is imposed. No such provision can be made after the sentence is partly executed unless the judge has retained jurisdiction of the case by virtue of the pendency of a motion for a new trial.
INSURANCE-Emergency clause m msurance policies
July 16, 1934
Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
I have a recent letter from you, enclosing one from Mr. F. M. Pitts, of Cornelia, Georgia, and a letter from the Deputy Insurance Commissioner, with reference to the so-called "emergency clause" which the Insurance Commissioner requires as a provision of policies written by Mutual Fire Insurance Companies chartered under the laws of other States.
You desire to know whether this requirement is authorized by law.
Under the Act of 1912, as amended by the Act of 1922, Fire Insurance Companies chartered under the laws of this State to do business upon the mutual co-operative or assessment plan are required to deposit with the State Treasurer registered bonds to the amount of $10,000. It is expressly provided that all such Companies shall include in their policies what is termed an "emergency clause" whereby the right to call for extra assessments upon its policy holders whenever the contingency arises is reserved.
The Act of 1912 as amended by the Act of 1922 provides, however, that by depositing with the State Treasurer bonds to the amount of $100,000 this requirement may be dispensed with, and in such event the policy holders shall be liable to assessments only for unpaid premiums.
The Act referred to, and the later Act of 1923, are limited by their express terms to Mutual Fire Insurance Companies incorporated under the laws of this State. They do not have application to Mutual Fire Insurance Companies organized under the laws of other States.
Such non-resident Mutual Fire Insurance Companies must qualify and must do business under the Statutes regulating the business of ordinary Fire Insurance Companies incorporated under the laws of other States, and must deposit with the State Treasurer $25,000 in bonds. There is no express provision of Statute requiring the inclusion of a so-called "emergency clause" in policies issued by foreign mutual companies.

The Act of 1912, as amended, however, requires every Fire Insurance Company doing business in the State to adopt and write a standard uniform policy such as may be prescribed by the CommissiOner.
Michie's Code 2471 (I) The Act of 1912 (Michie's Code 2387) (6) also authorizes the Insurance Commissioner to prescribe such additional reasonable rules and regulations as he may deem proper in the control and government of all insurance companies mentioned by that Act, and makes it the duty of such insurance companies to comply with particular rules and regulations thus promulgated. Since a foreign Mutual Fire Insurance Company is required only to deposit $25,000 with the State Treasurer, and the provision of the Statute authorizing Mutual Companies to dispense with the "emergency clause" by depositing $100,000 with the State Treasurer applies only to such Companies as are chartered under the laws of this State, I am of the opinion that the Insurance Commissioner may legally provide by regulation that policies issued by Mutual Companies incorporated under the laws of this State shall include an "emergency clause."
TAXATION-Exemption of disabled veterans
October 6, 1934
Hon. Carlton Mobley Executive Secretary State Capitol Dear Mr. Mobley:
I have your letter of the 5th inclosing a communication from Mr. R. A. McCarthy of Macon, Georgia, with reference to the exemption provided in favor of disabled soldiers by Section 1888 of the Civil Code. (Sec. 84-2011, Code of 1933).
These exemptions are granted on account of the fact of disability and not upon the certificate of the Ordinary. The certificate of the Ordinary merely affords prima facie proof of the fact of disability. Any soldier who meets the requirements of Section 1888 is entitled to do business in any county or municipality of the State without paying a license therefor. The business must be his business and not the business of some other person. He may employ assistants and may conduct more than one business. The statute expressly provides that a certificate from the Ordinary of any county stating the fact of disability and the fact that the holder of the certificate was a soldier of one of the wars enumerated by the statute shall be sufficient proof. It is not necessary for the soldier to get a certificate from the Ordinary in each county in which he undertakes to do business. It is only necessary that he obtain a certificate from the ordinary of some county in Georgia. In fact, it is not necessary that the soldier obtain a certificate at all as a condition precedent to the

808
exercise of the rights granted by the statute. This is true for the reason that the exemption is based upon the fact that the soldier owner is disabled and not upon the certificate of the Ordinary. The certificate of the Ordinary merely affords prima facie proof of the facts upon which the exemption is based. See in this connection
Coxwell v. Goddard 119 Georgia, 369; Fairburn v. Edmondson 162 Georgia, 386; Jones v. Macon 36 Ga. Appeals, 97, 98.
Since the exemption is based upon the fact of disability it has been held by the Supreme Court that any municipality or county may challenge the right of any soldier to the exemption on the ground that he is not in fact disabled or not in fact indigent. An issue of fact then arises as to whether the claimant is or is not disabled or is or is not indigent. Such an issue of fact must be determined by the courts as any other issue of fact is determined.
It has been held by the Supreme Court that the exemption afforded by the Code Section applied to sailors (Macon v. Sample, 167 Georgia, 150); and this Department, in a ruling entered some months ago, held that the exemption also applies to enlisted nurses.
I think what is stated above answers the questions of Mr. McCarthy as to the rights of a disabled soldier under the law. I know of no process by which a municipality which desires to challenge the right of a soldier to exemption from license taxes can be prevented from so doing. Of course, the remedy of any such soldier is to defend any action brought against him by proving his disability; and he may, in case of continued threatened prosecutions accompanied by the violation of some property right, resort to a court of equity by seeking an injunction. Since, however, the exemption is personal to the soldier and is granted an account of the fact of disability in each particular case, I know of no process by which a number of disabled soldiers might collectively institute litigation. This is true because the right to the exemption is dependent upon the status of each individual applicant.
BANKS-Taxation of real estate owned by banks
December 11, 1934
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
Yours of recent date making inquiry as to whether or not banks are required to make return of their real estate received.
Without quoting the law in full I beg to advise as follows: Banks are required to make returns to the tax receivers of the respective counties of real estate owned by them just as other corporations and individuals return their real estate for taxation.

304
The law further requires that banks shall make a return of the shares of their stockholders at their true market value based upon the surplus, undivided profits and real estate owned by the banks or in which they have an interest.
Under the law, banks are authorized to deduct from the return made of the shares of the stockholders the value of returns made of their real estate returned for taxation.
The case of City of Moultrie v. Moultrie Banking Co., 177 Ga. 144, which you cite, holds that the Act of 1927 is constitutional and further holds that banks may make deductions for returns of real estate owned by them from the returns made of their shares of stockholders whether the lands be situated within the same county with the bank or with other counties. Banks, like all other taxpayers, except public utility corporations, which make their returns to the Comptroller General, make their returns to the tax receiver of the respective counties and these returns are subject to be reviewed by the Board of Tax Assessors of the respective counties and either increased or decreased as the tax assessors may determine. If increases are made by the Board of Tax Assessors and the taxpayers are dissatisfied these increases may be reviewed by a board of arbitrators as provided by law. The State as such has no direct control over returns made by banks or other taxpayers in the various counties except as stated above, that of the public utility corporations, which make their returns to the Comptroller General. The State has no machinery for reviewing the returns made to the tax receivers by the individual taxpayers in the various counties. This authority is vested in the Board of Tax Assessors of the respective counties. The State has the authority to equalize returns as between counties but not as between individual taxpayers in the respective counties. Of course, I might add that the value of the shares of the stockholders of a bank depends upon the entire assets of the bank, including the real estate. If the bank should return as provided by law the shares of the stockholders at their true market value in which, of course, is reflected the capital, surplus, undivided profits, and real estate, and made no return of the real estate the result would be the same for the reason that the banks are authorized to deduct from the returns of the shares of their stockholders the returns made of real estate. If this were not done it would, at least in theory, be double taxation. What I understand banks are required to do, under the law, is to return the shares of stockholders at their market value as other taxpayers are required to do and from this they deduct the value of the real estate returned for taxation.

305
APPROPRIATIONS-Highway funds impressed for payment of school teachers may be repaid
December 24, 1984 Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your letter of the 22nd referring to me for my opinion a letter of the 20th from Hon. Tom Wisdom, State Auditor.
The letter from Mr. Wisdom states, in substance, that there has been paid on State appropriations, in the four years 1928-1931, $1,314,995.63 more than the income of the State for those years, which has resulted in a treasury deficit of that amount; that this deficit arose by reason of the fact that bank loans have been carried forward from year to year until 1934, when, under the authority of the Act of 1927, and in accordance with the opinion of this Department, the Governor impressed certain highway funds. The State Auditor refers to the provision of the Act of 1933, making appropriations for the years 1934 and 1935 that "in the event that the revenue receipts . . . available for paying the fixed sums appropriations herein made should be less than the total sum of such appropriations in either of the period covered under this Act, then the fixed amounts herein appropriated for that period . . . shall be reduced pro rata in the amount of the deficiency of revenue receipts for the period."
Mr. Wisdom further states that the revenue receipts for the year 1934, not allocated, will amount to less than the total of the appropriations carried by the Act of 1933 for the year 1934. He desires instruction from the executive as to whether the sum of $1,300,000 of highway funds, which were impressed as above stated, should be paid out of revenue receipts on hand as of December 31, 1934, and whether, if so paid, the result will be that the revenue receipts available for the payment of 1934 appropriations will amount to the actual receipts less the amount so used for repaying the highway funds which have been impressed.
It is my understanding, although Mr. Wisdom does not so state, that the deficit arose by reason of the exercise of the borrowing power conferred upon the Governor by the Act of 1927, and authorized by the amendment to Article 7, Section 3, Paragraph 1 of the Constitution. This Act authorized the borrowing of not more than $3,500,000 in any one year for the payment of school teachers; the Act expressly providing that .notes executed for money so borrowed should mature not later than February of the succeeding year. The loan first negotiated for the payment of teachers has been carried forward, from year to year, by what amounted to borrowing for the purpose of paying the loan first made, although there has been some reduction in the debt. The sum originally borrowed was not used as an extra amount for the payment of teachers, but was charged against the common school appropriation, and the effect was the same as if the sum borrowed had been placed in the general fund of the treasury, since all of the institutions and agencies of the State to which appropriations were made received the benefit, pro rata, of the

306
sum borrowed, in that the use of the borrowed funds toward the payment of the common school appropriation released an equal amount of general funds which could be applied to other appropriations. The debt then became, in law and in fact, an obligation of the general fund of the treasury, and, as a matter of fact, the sum borrowed was placed in the general fund for the purpose of distribution to the schools, and for general bookkeeping purposes. It thus appears that at the beginning of the next year after the loan was first made, the general fund of the treasury owed this debt, which it was necessary to pay or otherwise arrange, before any funds would be available for application to general appropriations. This situation has been carried forward from year to year as stated above. At the beginning of the year 1934, the general fund of the treasury owed a balance of $1,300,000 which it was necessary to pay, or otherwise arrange, before any funds would be available to apply to appropriations for 1934. In order to release funds for the general operations of the State, the Governor impressed $1,300,000 of highway funds which were used to pay the bank loan which represented the general treasury deficit.
From what is stated above it seems clear to me, and I so rule, that the sum due the State Highway Department should be repaid from revenue receipts for the year 1934, and that the result of so doing will be to reduce the revenue receipts "available for paying the fixed sum appropriations" as referred to in section 26 of the appropriation Act of 1933, by that amount. This action will not result in depriving any other department or institution of the State to which appropriations are made of any sum to which it is entitled under the Act of 1933.
SENATE-Members of Board of Control and Board of Regents are subject to confirmation by the Senate
March 14, 1933
Honorable Eugene Talmadge Governor of Georgia
My dear Governor: I have your letter of even date requesting an opmwn as to
whether or not it is necessary for the appointments of the member of the Board of Regents from the State at large and the member of the Board of Control from the State at large, to be confirmed by the Senate.
Section 27 of the Reorganization Bill provides as follows: "The Board of Control shall be composed of eleven members appointed by the Governor and confirmed by the Senate, one from the State at large and one from each Congressional District. The Governor shall be ex-officio a member of said Board." While it is provided in Section 28 that the member from the State at large shall serve at the pleasure of the Governor, there is nothing in

807
this provision in contravention of the previous provisions of Section 27 requiring confirmation by the Senate.
Section 50 of the Reorganization Act is as follows: "The Board of Regents shall be composed of eleven members appointed by the Governor and confirmed by the Senate, one from the State at large and one from each Congressional District." It is provided by Section 51 that one member shall be appointed for a term concurrent with that of the Governor to hold office at the pleasure of the Governor and subject to removal by him. There is nothing in this proviso, however, in conflict with the provisions of Section 50 requiring confirmation by the Senate. Section 116 of the Reorganization Act provides that the first and original appointments made under the provisions of the Act need not be confirmed by the Senate. In my opinion appointments now made to the Board of Regents and the Board of Control, either from the State at large or from a Congressional District are subject to confirmation of the Senate.
HOLDING TWO OFFICES-Member of Senate ineligible to hold office as Solicitor of City Court
April 11, 1933 Hon. Eugene Talmadge, Governor My dear Governor:
I have your letter of April 11th, in which you ask that I advise you "if a member of the Senate is eligible for appointment as Solicitor of a City Court, or whether it would be necessary for him to resign, and if he is eligible after his resignation."
Article S, Section 4, Paragraph 7, of the Constitution of this State, is as follows:
"No person holding a military commission, or other appointment or office having any emolument or compensation annexed thereto, under this State, or the United States, or either of them, except justices of the peace and officers of the militia, nor any defaulter for public money or for any legal taxes required of him shall have a seat in either house; nor shall any senator or representative, after his 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." Under the express provisions of the Constitution, after a member of the General Assembly qualifies as a member of the General Assembly, he is ineligible, during the entire term for which he shall have been elected, to be elected by the General Assembly or appointed by the Governor to any office having an emolument annexed thereto. The office of Solicitor of a City Court is an office having an emolument annexed thereto. Consequently, a member of the Senate is ineligible for appointment to such an office. The fact that such office may be a County office and not a State office does not change

308
the rule. If a member of the Senate should resign from the Senate he would still be ineligible during the remainder of the term for which he was elected Senator, to be appointed Solicitor of the City Court.
The only circumstances under which a member of the Senate or House of Representatives could be appointed to any other office are where such member resigns from the Senate or House of Representatives before he ever qualifies as a member of the Senate or House of Representatives. When he once qualifies as a member of the House or Senate by taking the oath of office, he then becomes ineligible during all of the term for which he was elected, for appointment to any other office, and his resignation from the General Assembly would not render him eligible.
HOLDING TWO OFFICES-Member of Advisory Board of State ineligible to hold office as Member of Board of Control
August 9, 1933 Hon. Eugene Talmadge, Governor of Georgia Dear Governor:
In re: Question as to whether or not a Member of the Advisory Board of the State of Georgia under the Industrial Recovery Act is eligible to hold the office of Member of the Board of Control.
In accordance with your request, I am giving you my opinion on the above captioned question.
Under the Reorganization Act of the General Assembly in 1931, a department of State government was created, known as the Board of Control. This Board consists of eleven members appointed by the Governor. Vacancies on the Board are filled by appointment by the Governor. All appointments are subject to confirmation by the Senate.
Acts 1931, pages 15-16. It is expressly provided in Section 35 of the Reorganization Act above referred to that the members of the Board of Control shall receive $7.00 for each day in actual attendance at the meetings of the Board, or on tours of inspection, in lieu of their personal expenses incurred thereby. They receive mileage to and from the place of meeting, and when making official visits and inspections required by law. It is likewise provided in said Section 35 that the members of the Board of Control shall receive no emoluments or compensation for their services as such members. By the provisions of Section 258 of Michie's Code of 19~6 (Sec. '89-101, Code of 1933), any person holding any office of profit or trust under government of the United States other than that of postmaster and officers of the Reserve Corps of the United States Army, Navy and Marine Corps, shall be held and deemed ineligible to hold any civil office in this State. In the opinion of this Department, the office of a member of the Board of Control is a civil office in this State made so by the Re-

809

organization Act. The Board of Control is a department of State

Government and therefore, any member of that Board is a civil

officer in this State.

It is, therefore, necessary to ascertain whether or not any person

who is a member of the Advisory Board of the State of Georgia under

the Industrial Recovery Act is holding an office of profit or trust

under the government of the United States.

Under the Industrial Recovery Act, the President is authorized

to establish such agencies, to appoint, without regard to the provi-

sions of the Civil Service Laws, such officers and employees as he

may find necessary, and to prescribe their authorities, duties, respon-

sibilities and tenure, and without regard to the Classification Act of

1923 as amended, to fix the compensation of any officers and em-

ployees so appointed. The President is further given the authority

to delegate any of his functions and powers under the Act to such

officers, agents and employees as he may designate or appoint. He

is authorized to create a Federal Emergency Administration of

public works, all the powers of which shall be exercised by the Federal

Emergency Administrator of public works. By the further provisions

of this Act, the Administrator may, without regard to the civil service

laws or the Classification Act of 1923 as amended, appoint and fix

the compensation of such experts and such other officers and em-

ployees as are necessary to carry out the provisions of this title.

The Administrator may make such expenditures, including ex-

penditures for personal services, as are necessary to carry out the

provisions of the title. Such compensation, expenses and allow-

ances are paid out of funds made available by that Act. The Ad-

ministrator, under the direction of the President, prepares the pro-

gram of public works, which program includes the making of grants

to States, municipalities or other public bodies, upon such terms as

the President shall prescribe, and for the purposes contemplated by

the Act.



The Advisory Board in question, according to our understanding,

is a Board which has been set up for the State under the provisions

of the Industrial Recovery Act, and consists of three members.

These members are paid at the rate of $10.00 per day for their

services, and their compensation is payable out of the funds made

available by the Act. The members of this Board are; therefore,

in the opinion of this Department, holding an office of trust and

profit under the government of the United States.

The Federal statute as found in Section 62 of Title 5, U. S. C. A.

does not disqualify a member of the Board of Control of this State

from becoming a member of the Advisory Board. Therefore, any

member of the Board of Control would be eligible to serve as a mem-

ber of the Advisory Board of the State.

However, under the provisions of the law of this State referred to

above, and found in Section 358 of the Code, such a member of the

Advisory Board for this State, under the Industrial Recovery Act

would be holding an office of profit or trust under the government

of the United States, and would thereby be ineligible to hold office

as a member of the Board of Control.

310
This ineligibility might in certain instances arise because of a conflict of duties.
This Department is, therefore, of the opinion that membership on the Advisory Board of the State of Georgia under the Industrial Recovery Act, renders one ineligible to hold the office as a member of the Board of Control.
HOLDING TWO OFFICEB-Solicitor General may serve as member of the Board of Control
October ~4, 1933
Hon. T. M. Linder, Secretary Executive Department Dear Mr. Linder:
I have your letter of October ~3rd inclosing a communication from Hon. W. B. Gibbs who is Solicitor General of the Brunswick Circuit and also a member of the Board of Control. You desire an opinion as to whether or not Mr. Gibbs may legally and constitutionally hold both of these offices.
In an opinion rendered to Governor Talmadge on August 9, 1983, by the Department of Law it was held that a member of the Board of Control is a civil officer. Of course, a Solicitor General is a state officer and a civil officer of this State. The question therefore is whether a person may legally and constitutionally hold two civil offices in this State.
The provisions of the Georgia law relating to ineligibility to hold public office are found in Sections ~58 and ~59 of the Civil Code of 1910 (Sees. 89-101, 89-103, Code of 1933). Paragraph Four of Section ~58 renders ineligible
"Persons holding any office of profit or trust under the Government of the United States (other than that of postmaster and officers of the Reserve Corps of the United States Army, Navy and Marine Corps), or of either of the several States, or of any foreign state." Paragraph Eight of Section ~58 renders ineligible "All persons from any cause constitutionally disqualified." The only constitutional disqualifications to hold office are being the holder of public money contrary to law (Civil Code 1910, Sec. 6406; Sec. ~-901, Code of 1933), and duelling (Civil Code 1910, Sec. 6407; Sec. 7-90~, Code of 1933). It is my opinion that the phrase used in Paragraph four of Section ~58, "or of either of the several states or of any foreign State", does not relate to the State of Georgia but to the other States of the Union. This exact question has never been decided by the Supreme Court. The language was referred to in the case of Long v. Rose, 132 Ga. 288, but the court did not adjudicate the meaning of the words. The manifest purpose and intent of the General Assembly in enacting this statute was to prevent a person ow.ing allegiance to or holding office under a foreign State, or any of the

811
other States of the Union, or the United States, from holding office in the State of Georgia.
The former Attorney General, Hon. Lawrence S. Camp, in an opinion rendered to Governor Russell on October I, 1932, held that the phrase "or of either of the several States," did not apply to the State of Georgia.
Section 259 of the Civil Code prohibits any person from holding more than one County office. It does not relate to State offices.
At common law there was no inhibition against the holding of more than one office provided the duties were not inconsistent with each other. In the absence of a constitutional provision or statute it is my opinion this common law rule prevails in Georgia.
There is no provision of the statute which requires a Solicitor General to devote his entire time to the duties of his office or which expressly prevents a solicitor general from holding another State office. The constitutional inhibition against the appointment of members of the General Assembly to any office having an emolument annexed thereto, during the term for which they were elected has no application to other office holders.
In the opinion rendered to Governor Talmadge on August 9, 1938, the question involved was whether a person accepting appointment to a Federal position was thereby rendered ineligible to serve as a member of the Board of Control. This ineligibility arose by reason of the express language of Paragraph four of Section 258. It was necessary to determine only whether a member of the Board of Control is a civil officer in the State and whether the particular appointment made under the Federal Government was to an office of profit or trust.
The question you ask involves a totally different state of facts. There is no express provision of law which renders a person holding one state office ineligible to hold another state office. This being true, and there being no conflict in the duties of a Solicitor General and a member of the Board of Control, and no inconsistency in the two positions, it is my opinion that Mr. Gibbs is not disqualified to serve as a member of the Board of Control by reason of the fact that he holds the office of Solicitor General of the Brunswick Circuit.
HOLDING TWO OFFICEs-Disbursing Agent and Bookkeeper for Federal relief work eligible to hold office as Justice of the Peace
October 31, 1983 Hon. Eugene Talmadge, Governor My dear Governor:
This will acknowledge receipt of the letter of Mr. 0. 0. Worley of Camilla, Georgia, dated on the 26th of October, 1933, relative to which you have asked my opinion. Mr. Worley's letter states that Mr. J. C. Wilson was recommended to be appointed as Notary Public and ex officio Justice of the Peace of the 1173d District of Mitchell County, to succeed Mr. 0. 0. Worley. He further states

312
that Mr. Wilson holds a position with the Federal Government as disbursing agent and bookkeeper for the Federal relief work being carried on in Mitchell County. He desires to know whether Mr. Wilson is eligible to hold both positions.
It is my opinion, based upon Code Section 258, (Michie's Code of 1926; Sec. 89-101, Code of 1933), that Mr. Wilson is eligible to hold both of these positions. Section 258 provides as follows:
"The following persons are held and deemed ineligible to hold any civil office in this State, and the existence of either of the following states of facts is a sufficient reason for vacating any office held by such person, but the acts of such persons, while holding a commission, arc valid as the acts of an officer de facto, viz: (4) Holding other offices. Persons holding any office of profit or trust under the Government of the United States (other than that of Post Master and Officers of the Reserve Corps of the United States Army, Navy, and Marine Corps) or of either of the several states, or of any foreign state." I am informed that disbursing officers and bookkeepers in the various counties administering the Federal Relief funds, receive a salary from the Federal Government. However, they are merely employees of the Federal Government and do not hold an office, strictly speaking. This fact would not amount to a disqualification under Section 258, and it is my opinion that a party holding such a job would not, on account of this fact, be ineligible for a position as notary public and ex officio justice of the peace.

GENERAL ASSEMBLY-Member of General Assembly eligible to hold office as member of Board of Control

November 23, 1933

Hon. Eugene Talmadge, Governor

My dear Governor:

Re: Eligibility of Members of the General Assembly for appoint-

ment to the Board of Control.

I have given very careful consideration to the question as to wheth-

er or not a member of the General Assembly is eligible for appoint-

ment to the Board of Control, as provided for by the Reorganization

Act of 1931.



The question involves consideration of Article 3, Section 4, Para-

graph 7, of the Constitution of Georgia, and of Article 5, Section 35

of the Reorganization Act of 1931, and of Section 118 of the same

Act.

The material provision of the Constitution referred to is as follows:

"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." (Code Section 6420, Civil Code; Sec. 2-1507, Code of

1933.)

318
There is no other Constitutional or Statutory provision which has any bearing on the appointment of a member of the General Assembly to the Board of Control. Section 258 of the Civil Code (Sec. 89-101, Code of 1933) simply provides that persons from any cause constitutionally disqualified shall not be eligible to hold any civil office in this State. This amounts to a mere statutory statement of the constitutional provisions, and adds nothing thereto and takes nothing therefrom.
The corresponding provision of the Constitution of the United States is as follows:
"No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office." It will be noted that the provision of the State Constitution is broader than the related provision of the Federal Constitution. The inhibition of the Federal Constitution is against the appointment of a member of Congress to any office created or the emoluments whereof shall have been increased during the term of such member. The inhibition of the State Constitution is against the appointment by the Governor or the election by the General Assembly of a member of the General Assembly after his qualification to any office or appointment having any emolument annexed thereto during the term for which he was elected, whether the office was created or the emolument increased during the term of such member. In the case of Rowe v. Tuck, 149 Ga. 88, the Supreme Court considered the related provrswns of the Constitution of Georgia and the Constitution of the United States, and quoted with approval from the opinion of Judge Cobb, who tried that case in the lower court, as follows:
"The evil that was intended to be remedied by the provisions in the two constitutions above quoted was to prevent a legislator in office from using the environment, influence and prestige of the office which he held, to create for his benefit another office, or to increase for his benefit the emoluments of an existing office."
The purpose and intent of the provision of the Constitution of Georgia is broader and more far-reaching than Judge Cobb declared. Not only was it the purpose of the Georgia Constitution to prevent a member of the General Assembly during his term of office from creating an office of profit, or increasing the emoluments of an office already created, in order that he might himself obtain advantage of his legislative action, but it was the further purpose to prevent a member of the General Assembly from using the influence, environment and prestige of his office to obtain an office already created having an emolument annexed thereto. The spirit of this constitutional provision, in my opinion, could also be

314
aimed at a situation which could result from a member of the General Assembly holding office as an official of the State under some department, board, bureau or agency of the State upon whose needs such member of the General Assembly would be required to pass, in his legislative capacity, in determining the amount to be appropriated from the common treasury for the support of such department, board, bureau, institution or agency. All departments of the State Government must, under our Constitution, go to the General Assembly for appropriation for their support and maintenance. Sound public policy would seem to inhibit a member of the General Assembly at one and the same time occupying the dual position of appropriating public funds to be dispensed by himself.
The members of the Board of Control under the Budget Act of 1931 must present, through the Governor, to the General Assembly the needs of the Board which are to be met by appropriations from the public treasury, and the General Assembly must thereafter pass on the request thus made. A member of the Board of Control, who is also a member of the General Assembly, would find himself in the dual position of making a request in one capacity upon which he must pass in another capacity.
He would thus find himself in the position of having to serve two masters at one and the same time.
We must, however, base our opinion upon a proper construction of the constitutional provision in the light of the legislative declaration as expressed in Section 35 of the Reorganization Act.
The provision of Section 118 of the Reorganization Act referred to above is as follows:
"No member of the General Assembly shall, during the term for which he has been elected, be eligible to be appointed or employed by any department, board, bureau, or other State agency in any capacity whatsoever."
It is my opinion that this section has no application to the question now under consideration. The only limitation upon the power of the Governor to appoint members of the General Assembly to the Board of Control is the Constitutional limitation above stated. This Constitutional limitation inhibits the appointment of members of the General Assembly by the Governor "to any office or appointment having any emolument annexed thereto."
It is a fundamental rule of construction that that interpretation which will stand the test of constitutionality must be applied to any statute in preference to an interpretation which will not stand the test of constitutionality, since it must always be assumed that the legislature intended to enact a valid and constitutional law. If Section 118 of the Reorganization Act should be construed to limit the power of the Governor to appoint members of the General Assembly to the Board of Control, whether there is or is not an emolument thereto, then Section 118 would clearly be violative of the constitutional provision above quoted and would necessarily fall. The constitution and not Section 118 is the controlling factor in determining whether or not a member of the General Assembly is eligible for

815
appointment to the Board of Control. Section 118 adds nothing to and takes nothing from the constitutional provision dealing with the appointive power of the Governor.
Having seen that Section 118 of the Reorganization Act has no application to the question under consideration, it remains only to be seen whether the office of a member of the Board of Control is an office or appointment having an emolument annexed thereto.
Section 35 of the Reorganization Act is in full as follows: "The members of the Board shall each receive the sum of $7.00 for each day of actual attendance at the meetings of the Board or on tours of inspection, in lieu of their personal expenses incurred thereby, and shall receive mileage to and from the place of meeting or place of visits and inspections of the respective institutions, by the nearest practical route from their respective homes; such expenses and mileage to be paid by the State Treasurer out of the funds of the State, by executive warrant, on presentation of vouchers by the members of the Board approved by the chairman and signed by the secretary. The members of the Board shall receive no emoluments or compensation for their services as such members. That no member of said Board shall directly or indirectly sell to or buy from any institution under its control or supervision." The Act itself specifically declares that: "The members of the Board shall receive no emoluments or compensation for their services as such members."
It will be further noted that this section provides that members of the Board shall receive $7.00 for each day of actual attendance at the meetin~s of the Board or on tours of inspection, "in lieu of their personal expenses incurred thereby," and shall also receive mileage to and from the place of meeting. This department has heretofore construed this provision of the Act to mean that a member of the Board of Control is entitled to $7.00 per day only for the days in actual attendance upon the Board meetings, irrespective of the time or number of days which may be consumed in going to and from the place of meeting. It thus appears to have been the intention of the General Assembly that the amount which would be paid to members of the Board for personal expenses should be limited to $7.00 for each day upon which the member actually attends the meetings of the Board, irrespective of whether the expenses of such member might be more or less than that amount.
The construction to be placed upon Section 35 of the Reorganization Act must be arrived at from a consideration of the language used as applied to the entire statute and to the Board of Control as a whole without any reference to what might or might not result from the situation of any particular member. For example, one member of the Board of Control might be a resident of the City of Atlanta and this member would incur very little, if any, expense in attending a meeting of the Board. On the other hand another member of the Board might be very far removed from Atlanta and the personal expenses incurred by such member in traveling to and from Atlanta

316
and in attending a meeting of the Board might exceed the sum allowed. Then, too, a member residing in Atlanta might be required to visit an institution of the Board in a distant city at an expense in excess of $7.00 per day provided by law. It is, therefore, my opinion that Section 35 of the Reorganization Act intended to fix $7.00 per day to be paid members of the Board of Control in lieu of personal expenses upon the idea that the sum represented the average amount that would be expended by the members in the way of personal expenses in attending the meeting of the Board or on tours of inspection.
In my opinion, the fact that a member of the Board received $7.00 per day in lieu of personal expenses, even though his expenses be a smaller sum, cannot be taken to authorize the construction that the amount thus received by the member is paid to him by way of emolument for his services.
In Sharrenboich v. Lewis & Clark Co., 83 Pac. 48:2, 483, 33 Mont. :250, the Supreme Court of J\iontana had under consideration an Act of the General Assembly providing that sheriffs of that State in conveying prisoners or insane persons to and from the State Prison or Asylum, should receive actual traveling expenses in lieu of the mileage theretofore allowed at the rate of ten cents per mile each way. The complainant sheriff was serving a term of office upon which he had already entered when this Act was passed. The Constitution of Montana provided that the General Assembly of that State should pass no law increasing or diminishing a public officer's salary or emolument during his term. It appeared that under the particular facts involved, the sheriff would have received $185.70 mileage under the old law, and that his actual expenses were only $90.65. He contended that this profit represented an emolument of his office which the General Assembly had no power to deprive him of during his term, and that he was, therefore, entitled to pay on a mileage basis instead cf his actual expenses. The court held that the allowance of mileage was not an emolument of the sheriff's office, but was intended by the General Assembly to recompense those officers for expenses incurred in the performance of their official duties, and that the amount provided by statute represented the legislature's conception of what would be the average cost to officials for the service. This case seems to be on all fours with the question now under consideration. While the decisions of the Montana Court are not binding in Georgia, this case, in my opinion, would be highly persuasive in this State.
I do not think, however, that any rule of construction can be resorted to in determining the meaning of Section 35 of the Reorganization Act, since the legislature has expressly declared that members of the Board of Control shall receive nothing for their services, but that the allowance of $7.00 per day shall be held and

317

construed to be a sum paid to such member, in lieu of the personal

expenses to which they would otherwise be entitled. The cardinal rule of construction to be applied by the courts in

the interpretation of all statutes is that of ascertaining and giving

effect to the legislative intent. This rule is statutory in Georgia and

binding upon the Attorney General and the courts. Civil Code 1910, Sec. 4 (9);

Sec. 102-102, Code of 1933.

In

Neal v. Moultrie,

12 Ga. 104, 110, Judge Nisbet said:
"If the legislature does plainly and distinctly declare its intention,

the Act is not open to construction. It needs and can receive

none. It stands self-interpreted and courts have nothing to do but to enforce it."

This statement of the law was approved by the Supreme Court

in the case of Georgia Casualty Co. v. Jones,

156 Ga. 666,

in the following language:

"When the legislature plainly and distinctly declares its intention

the Act is not open to construction. It requires and can receive none. Such an Act is its own interpretation. The courts have nothing to do but to enforce it."

The power of the General Assembly to construe its own statutes

has long been recognized by the courts. The general rule with

reference to the authority of the legislative body to construe its own

Acts 59

can. dJ.to49d8e,fine

terms

used

in

legislative

statutes

is

stated

in

Section 567,

as follows:

"The legislature may define certain words used in the statute, or declare in the body of the Act the construction to be placed thereon, and the court is bound by such definition or construction and

will apply it, although otherwise the language would have been construed to mean a different thing." The Supreme Court of Wisconsin, in the case of

McCarthy v. The State, 157 N. W. 785,

held as follows:

"The legislature may provide its own definition of a word used in a law which it enacts and when it does so that definition must

necessarily control regardless of dictionary definitions."

The Supreme Court of Nebraska, in the case of Arago v. Highs, Sheriff, 152 N. W. 319, uses the following language:

"It is an elementary principle of statutory interpretation that,

when the legislature states the meaning which is to be given to a

818
term used in an Act it is the duty of the courts to give it such meaning and thus carry out the evident intent and purpose of the legislature."
"Any provision in the statute which declares its meaning or purpose is authoritative, whether it relates to the operation of a whole Act, or a single case, or a word, it is a declaration having the force of law. It is binding on the courts though otherwise they would have understood the language to mean something different." In the case of Bettenbrock, et. al., v. Miller, et. al., llfl, N. E. 771 (10),
the Supreme Court of Indiana held: "A legislature may embody in an Act passed a construction of its meaning, and such construction is binding on the courts, because the construction forms a part of the statute as enacted and makes clearer the intent of the legislature which passed it." In McCarthy v. State, 175 N. W. 785,
it was said in headnote fl by the Supreme Court of Wisconsin, that: "The legislature may provide its own definition of a word used in a law which it enacts, and when it does so, that definition must necessarily control regardless of dictionary definitions." The case of Schweizer v. Mager, fl97 Fed. 334,
in holding that where Congress expressly defines words in a statute that definition must govern the courts in applying the statute, the following language was cited with approval:
"The intention of the Congress is to be sought for primarily in the language used, and where this expresses an intention reasonably intelligible and plain, it must be accepted without modification by resort to construction or conjecture." Gardner v. Collins, fl Pet. 58 (93); U.S. v. Goldenberg, 168 U. S. 95 (10fl). In the case of Commonwealth v. Curry, 4 Pa. Superior Court 356,
it was held: "A construction put upon an Act of the legislature itself by means of a provision embodied in the same that it shall or shall not be construed in a certain designated manner is binding upon the courts, although the latter without such direction would have understood the language to mean something different."
The General Assembly, by section 35 of the Reorganization Act distinctly declared that members of the Board of Control shall receive no emolument or compensation for their services and dis-

319
tinctly declared that $7.00 per day in lieu of personal expenses is not an emolument.
Under the uniform decisions of our courts of last resort this plain, clear and unambiguous legislative declaration that the members of the Board of Control should receive no emolument or compensation for their services, and that $7.00 per day in lieu of personal expenses was not an emolument or compensation is open to no construction other than that the amount received by members of the Board in lieu of personal expenses is not an emolument within the meaning of the constitutional provision above referred to. To hold otherwise would be to fly in the face of the plain mandate of the law as con- . strued by all courts of last resort.
I am thus forced to the conclusion that although the appointment of a member of the General Assembly to the Board might be a violation of the spirit of the constitution yet it is in this case not prohibited by the constitution. I am forced to believe that should the matter be submitted to the courts in a proper case they would unquestionably hold that a member of the General Assembly is not ineligible for appointment to the Board of Control under the law as passed.
The Attorney General of this State is a constitutional officer charged with the duty of interpreting the constitution and statutes of Georgia upon requests for opinion submitted by the Governor and other state officials. The sole responsibility for the correctness of the opinions thus given is upon the Attorney General and state officials are authorized to Act thereon without questioning their correctness and are protected when they do so. In the past the opinions of the Attorney General have been generally considered as highly persuasive and entitled to great weight and credit and in most cases parties at interest act upon them without resorting to the courts. In order to preserve this integrity of official conduct the Attorney General is sometimes faced with the necessity of ruling the contrary of what, in his opinion, the law should be, and is sometimes required to give effect to a law which he does not personally approve.
The Attorney General does not enact laws and whether he personally approves them or not, he must construe them under the Constitution, following the rules of construction laid down by our courts of last resort.
In this particular case I am bound, as I believe the courts would feel bound, by the express declaration of legislative intent embodied in Section 35 of the Reorganization Act as previously discussed.
The Constitution does not preclude the appointment of a member of the General Assembly by the Governor unless the position to which he is appointed has an emolument annexed thereto and I am of the firm conviction that under the law there is no le!jal emolument annexed to the membership on the Board of Control and am, therefore, compelled to hold that the members of the General Assembly are not ineligible to be members of the Board of Control.

S20
HEALTH-Construction of Ellis Health Law
January 13, 1933
Dr. T. F. Abercrombie, Director Department of Health
Dear Dr. Abercrombie: Section 8 of the Act approved August 17th, 1914 (Ga. L. 1914, pp.
124, 130), known as the Ellis Health Law, provides as follows: "It shall be the duty of the Board of Health of each County, at its regular January session, after compliance with the provisions of Section 5, and each January session thereafter to determine and fix the sum necessary to meet the requirements of this Act, and they shall certify to the Board of County Commissioners of Roads and Revenues, or to the Ordinary of the County in Counties having no such board, the amount so fixed upon and assessed for the purpose of sanitation and quarantine for said county, and said taxing authority of said county shall levy such tax at the time and in the same manner as is now prescribed for levying taxes, for other county purposes." Your letter of January 10 requests an opinion as to whether or
not, when the Board of Health complies with the above provisions of law and so certifies to the County Commissioners, the County Commissioners have a right, under the law, to refuse to levy the tax.
You also ask what would be the procedure for a County Board of Health upon the refusal of the County Commissioners to levy a tax for the expenses of the Board of Health.
It is my opinion that the language employed in the above quoted section, "said taxing authority of said county shall levy such tax at the time and in the same manner as is now prescribed for levying taxes, for other county purposes," is mandatory, and that the County Commissioners have no right under the law to refuse to make any levy for the purposes provided by the Act referred to. See Smith et al., Commissioners v. Board of Education, 153 Ga. 758 (1).
Upon refusal of the County Commissioners to levy a tax to meet the requirements of the Act of 1914 above cited, the procedure to be employed by the County Board of Health to compel compliance by the County Commissioners with the provisions of the foregoing section of the Ellis Health Law would be the institution of a mandamus proceeding. See McClatchey v. City of Atlanta, 149 Ga. 648. It is my opinion, however, that the County Commissioners could not be compelled, by mandamus, to make a county tax levy which in the aggregate would exceed the limitation fixed by law upon the amount of county tax levies.

S!!l
HEALTH-Construction of law relating to vital statistics
April 4, 1933 Dr. T. F. Abercrombie, Director Department of Public Health Dear Dr. Abercrombie:
In accordance with your request that this Department advise you concerning the carrying out of the provisions of the Act of the General Assembly of 1927, (pages 272-279, inclusive) which said Act provided for a system of registration and licensing 'as a means for accomplishing the principal purpose of said bill, etc., we wish to advise as follows:
In order to carry out the provisions of this Act an appropriation of the General Assembly for that purpose is required.
By the provisions of Section 7 of said Act, it is provided that the local registrar shall collect from each registrant a fee of 30, 15 of which shall go to the local registrar and 15 shall go to the State Bureau of Health, to be used in defraying the expense of the State Bureau of Vital Statistics. The particular wording of said Section is not sufficient, in the opinion of this Department, as an allocation of said fund, so as to void the application of the Neill Act. Therefore, this fee would have to be paid into the State Treasury, and could be paid out only upon the warrant of the Governor, drawn against said fund.
The said Section 7 provides that if the registrant shall make affidavit, that through poverty he is unable to pay said registration fee of 30, the Bureau of Vital Statistics shall receive no fee for registration, and shall pay to the local registrar a fee of 10 for such registration, and that said sum shall be paid out of the fund of the State Bureau of Vital Statistics. In our opinion, this provision makes the carrying out of the provisions of this Act as to registration not only impractical but impossible, where no appropriation has been made for that purpose. Should as many as one-half of the inhabitants of this State file the affidavit stating that they were unable to pay the registration fee of 30, then it would cost the State Bureau of Vital Statistics approximately $150,000.00 to pay to the local registrars a fee of 10.
You state that it would cost approximately $300,000.00 to carry into effect the provisions of the Act for a period of twelve months, including the 6,000,000 cards required, extra clerks, filing cabinets, typewriters, equipment, application blanks for marriage license, extra office supplies, etc.
Should this work be figured on the same basis that it cost the Federal Government to take the census of Georgia, the costs for the census required by this Act would be approximately $420,000.00.
In view of these facts, and in view of the fact that the Legislature failed to appropriate any sum for the carrying out of the provisions of this Act, and since under the Neill Act all funds are required to be paid into the Treasury and paid out under the warrant of the Governor, this Department is of the opinion that the conclusion reached at the conference held in 1927 by the Department of Health, in con-

junction with Governor Hardeman, the Attorney General and the State Auditor, was not only justified, but was the only conclusion that could have been reached at that time. It is our opinion further that the findings made then are still applicable.
We do not think that the Governor would be authorized to draw on the contingent fund for the payment of the sum necessary to put this law into effect.
If further information is desired in regard to this matter, I should be glad to have you call the same to our attention.
HEALTH-Length of term of Pharmacy members on the State Board of Health
May 16, 1934
Mr. R. C. Wilson Secretary and Treasurer Georgia Pharmaceutical Ass'n Athens, Georgia My dear Mr. Wilson:
I have yours of the 14th instant requesting an opinion as to the length of the term of pharmacist members who are appointed by the Governor to the State Board of Health.
Section 15 of the Act of 1933 (Georgia Laws 1933, p. 9) provides, among other things:
"The Board of Health shall be composed of fourteen members, appointed by the Governor, and confirmed by the Senate .... The nominees submitted by the governing Board of the Georgia Pharmaceutical Association shall be from the State at large and shall be at least four in number, from which two appointments shall be made by the Governor . . . . A majority of all the members of the Board shall, at all times, being practicing physicians in the State of Georgia." Section 16 of this Act provides: "The terms of office of the 14 members first appointed shall be as follows: two shall be appointed for a term ending September 1, 1934; two for a term ending September 1, 1935; two for a term ending September 1, 1936; two for a term ending September 1, 1937; three for a term ending September 1, 1938; three for a term ending September 1, 1939; their successors shall be appointed for a full term of six years each." This Act seems to leave it within the discretion of the Governor as to which members he shall appoint for the various terms. That is, under the Act, he could within his discretion appoint the members representing the Georgia Pharmaceutical Association on the Board to either of the various terms. That is, he might appoint these members for a term ending September 1, 1934, or for a term ending September I, 1939. It would seem essential for the commission of each member appointed under Section 16 to specifically state the term for which said member was appointed. Unless the Commis-

sion states the term, I know of no way of determining what term any particular member was appointed to. The only restriction upon the appointing power of the Governor is that a majority of all the members of the Board, at all times, be practicing physicians of the State of Georgia. In his appointments the Governor must so arrange them as to maintain this majority on the Board.
HIGHWAY-Use of highway refunding certificates
December 5, 1934 Hon. Lawrence Garrett Representative-Elect Carroll County Burwell, Georgia Dear Mr. Garrett:
I have yours of the third instant, requesting advice as to whether it is constitutional and legal to divert the money that is to be paid back to the several counties by the Highway Department in the form of highway refunding certificates to the purpose of paying a part of the bonded indebtedness of school districts and set aside a part for the construction of new school buildings.
In reply I beg to refer you to Section 13 of the Act approved March 1, 1933, (Georgia Laws 1933, pp. 161-172) as amended March 22, 1933, (Georgia Laws 1933, p. 160). This section provides the manner of sale of the highway refunding certificates issued to the counties and the purposes to which the proceeds derived from a sale of these certificates may be applied, as follows:
"Said political subdivisions be and they are hereby authorized to sell any of the said certificates of indebtedness of said Highway Department for the purpose of paying any of said bonded indebtedness hereinbefore referred to, or of acquiring or retiring any of said outstanding bonds hereinbefore referred to, or for the purpose of investing the proceeds of the same in securities now approved by law, for the purpose of placing the same in the sinking fund of said counties or highway districts hereinbefore referred to, and to sell and/or use any surplus thereof for any other proper and legal county purpose; provided that in the event of sale the
same shall not be discounted at a rate exceeding 5% per annum."
Section 12 of the Act of 1933 specifically provides: "That all funds received or realized (or so much thereof as may be necessary) from the certificates of indebtedness issued or to be issued by the State Highway Department to the several counties of this State, as well as the coastal highway districts and the counties of said districts, under the provisions of the amendment to the Constitution providing for the issuance of such certificates, approved August 25, 1931, shall be first applied by the fiscal or lffoverninf! authorities of said political subdivision receivinf! said certificates to the payment of that part of the outstandinf! and unpaid bonded indebtedness of such political subdivision fncurred and used for the construction

824
and/or pavin!! of the public roads or hi!fhways, (includin!f bridges) of the State, as contemplated and desi!fnated by Article 6, Section 1, of the Act approved August 18, 1919, as said section appears on page 25!3 of the Geor!fia Laws of 1919, which were a part of the State Aid Roads of the Highway System of Geor!fia, and said work was done nnder tl1,e supervision of the Highway Department, and the payment of which was assumed under the provisions of the amendment to the Constitution approved August 25, 1931." This section further provides that in the event the counties or districts cannot acquire for payment any of such outstanding bonds the proceeds of the certificates, when sold, shall be invested in securities now prescribed by law to be placed in the sinking fund for the discharge and eventual payment of said bonded indebtedness or outstanding bonds. In view of the foregoing provisions of the Act of 1933 I am of the opinion that before any of these highway refunding certificates can be sold and the proceeds applied to any purpose other than that of paying the bonded indebtedness for State Aid Roads or investing the proceeds for the eventual payment of the same it would be necessary for the county authorities to determine that there will be a surplus of such certificates over and above the amount necessary for these purposes. If the county has no bonded indebtedness, of course, the entire proceeds of the certificates may be applied to any proper and legal county purpose. I am of the opinion that by "proper and legal county purpose" the General Assembly meant any purpose for which the power of taxation over the county as a whole might be exercised by the county authorities. The power of taxation over the county as a whole cannot be exercised by the county authorities for the purpose of paying the bonded indebtedness of a local school district. I am, therefore, of the opinion that it would not be legal for the county authorities to use any surplus of highway certificates to pay an outstanding bonded indebtedness of a local school district. The county may, however, after discounting any such surplus certificates, turn the proceeds thereof over to the county board of education for use by the county board of education for educational purposes, including building and equipping school houses.
HIGHWAY-How to arrive at discount on State Highway Certificates
May 25, 1934 Mr. T. J. Crittenden Shellman, Georgia Dear Mr. Crittenden:
I have yours of the 22nd instant requesting an interpretation as to that portion of the Act of 1933 relative to the discounting of State Highway Refunding Certificates, and as to how the discount should be arrived at.

My duties being restricted by law to the official business of this State, I am prevented from giving you an official opinion relative to this matter. This opinion, therefore, is unofficial and binding upon no one and merely states my own personal views on this subject.
The Act relative to discounting of said certificates provides: "In the event of sale, the same shall not be discounted at a rate exceeding five (5) per cent per annum." (Ga. Laws, 1933, 160) The word "discount" is defined by Black's Law Dictionary (3rd Ed. p. 586) as follows:
"In a general sense an allowance or deduction made from a gross sum on any account whatever. In a more limited and technical sense the taking of interest in advance." See: Cooper v. National Bank of Savannah, ~1 Ga. App. 356; Evans v. National Bank of Savannah, ~51 U. S. 108; Murphy v. Stubblefield, 133 Maryland 23. In the case of Fleckner v. Bank, 5. L. Ed. 631, in defining this term the courts said that by the language of the commercial world and the settled practice of banks, discount by a bank means a draw back or deduction made upon its advances or loans of money upon negotiable paper or other evidence of debt payable at a future date, which are transferred to the bank. In Bank v. Johnson, 104 U.S. 276, discount was determined to be the difference between the price and the amount of the debt, the evidence of which is transferred. That difference represents interest charged, being at the rate according to which the price paid, if invested until the maturity date of the debt, will just produce its amount. Keeping in mind these definitions of discount, it seems clear that the word "discount", as used in the Act under discussion, is used in its more limited and technical sense and is to be considered in the nature of interest. As these certificates bear no interest (Section 4,
Act of 1933), the discount of 5% represents the premium paid for the
use of money advanced by a purchaser who buys one of these certificates. This sum is specifically limited by statute to not more than
5% per annum.
Section 6 of the Act (Georgia Laws, 1933, p. 188) provides a method for the registration of such certificates in the hands of purchasers and declares
"such registered certificate shall be paid to the person in whose name it is registered, his heirs, executors, or administrators, or to such person as the same may be assigned in writing and notice thereof given to the Treasurer of the Highway Board."
Also, under Section~ of the Act 10% of the amount owing to each county on these certificates is declared to be due and payable on March ~5th, 1936, and a like amount due and payable annually on March ~5th, each year thereafter through 1945. Consequently, it is my opinion that in arriving at the true discount which would
amount to 5% per annum on the amount of money which the pur-
chaser of one of said certificates is out of pocket over a period of years before maturity of the certificate, one must necessarily deduct the

8~6
repayment of 10% made each year beginning March ~5th, 1986 and occurring annually through 1945.
In your letter you refer to two methods of arriving at the true discount of these certificates. It is my opinion that any method
used which allows a discount of more than 5% per annum as a re-
turn upon money actually invested in these certificates is incorrect and illegal. It seems that neither of the methods used by you, as outlined in your letter, take into consideration the repayments of 10% which begin in 1936 and continue through 1945. It occurs to me that this is a necessary factor in the equation.
HIGHWAY-Authority of State to undertake work under the National Recovery Act on highways
September ~o. 1988 Mr. M. E. Cox State Highway Engineer State Highway Department Dear Sir:
The Assistant Attorney General assigned to the Highway Department has referred to me the telegram delivered to him by you from Mr. Snead to :Mr. J. T. Marshall, Senior Highway Engineer in the Bureau of Public Roads of the United States, with the request that I furnish you the information referred to in this telegram. Mr. Snead's telegram is as follows:
"Please have the State prepare a statement showing their full authority to undertake work under the National Recovery Act in accordance with their State law. Stop. This includes work within municipalities of the type essential for the improvement and may include the building of roads not now included within the State system of highways as feeder roads. Stop. Feeder roads may or may not be upon the State system of highways, and such statement should cover not only the construction but maintenance of such roads and maintenance of highways within municipalities. Stop. This should be ready with their program of counties at the earliest possible moment. Stop. Have Headley reply telegram at once." The first portion of the telegram relates to the authority of the State to undertake work under the National Recovery Act, in accordance with the State law, including work within municipalities, and also, including the construction of roads not now within the State system of highways as feeder roads. The second portion of the telegram relates to the authority of the State to maintain roads thus constructed. The two subject matters will be dealt with separately. Section 204 of the National Recovery Act which relates to the emergency construction of public highways and related projects authorized the grant by the President to the Highway Departments of the several States of not less than four hundred million dollars, to

8~7
be expended in accordance with the Federal Highway Act of N ovember 9, 19~1, for the two general purposes outlined by subdivisions 1 and 2 of Section 204.
Purpose Number 1 provided for by sub-division 1 of Section 204 is "for expenditure in emergency construction on Federal Aid Highway System and extensions thereof into and through municipalities."
The Act of the General Assembly of Georgia, approved August 18th, 1919, (Georgia Laws 1919, pp. 243-244) provides in part as follows:
"That the assent of the State of Georgia to the terms and provisions of the Act of Congress approved July 11th, 1916, known as the 'Act to provide that the United States shall aid the States in the construction of rural post roads, and for other purposes;' is hereby continued; and that the State Highway Department herein provided for shall discharge all of the duties arising under said Act of Congress to be performed by a State Highway Department, and is hereby constituted the proper agency of the State of Georgia to discharge all duties arising under any amendment or amendments to said Act of Congress, or under other Acts of Contress allotting Federal funds to be expended upon the public roads of this State." The Act of 1919 further provides (Georgia Laws 1919, pp. 247-248) as follows:
"That the powers and duties of the State Highway Department, to be exercised by the State Highway Board, the State Highway Engineer, and the staff thereof, shall be as follows: To have charge and control of all road or highway work designated or provided for, or done by the State or upon the State Aid Roads; to designate, improve, supervise, construct and maintain a system of State Aid Roads, provided that no road shall become a part of said system until the same shall be so designated by the State Highway Board by written notice to the county road authorities concerned; to have the control, charge, supervision and expenditures of all funds now or hereafter appropriated or provided for highway or road work by the State, or which may be a part of the State Aid Road fund; to have power to provide for surveys, maps, specifications, and other things necessary in designating, supervising, locating, improving, constructing or maintaining said State Aid roads, or such other public roads as may be provided under this Act; to secure consulting advisors in important technical matters, including the qualifications of technical employees; to employ clerical assistance and incur other expenses, including necessary equipment and office rent; to pay the compensation and expenses of all officials and employees of the State Highway Department; and to provide for such other expenses as may come under, or be in harmony with, the provisions of this Act."
It will be noted from Article 2 of the Act approved August 18th, 1919, quoted above that the State Highway Department of Georgia is expressly authorized to "discharge all duties" arising under the Act of Congress of July 11th, 1916, or arising under any amend-

ment or amendments to this Act of Congress "or under other Acts of Congress allotting Federal funds to be expended upon the public roads of this State." This section expressly empowers the State Highway Department of Georgia to meet the requirements of any Act of Congress allotting Federal funds to the State for the construction of public roads.
It will further be noted that Section 1 of Article 5 of the Act of August 18th, 1919 (Georgia Laws 1919, pp. 247-248) not only authorizes the State Highway Department to designate, improve supervise, construct and maintain a system of State Aid roads, but further empowers the State Highway Department to have charge and control of all road or highway work designated or provided for, or done by the State upon the State Aid roads. This provision of law not only authorizes the State Highway Department to construct and maintain the State Aid System of roads, but further authorizes the State Highway Department to do road or highway work such as may be designated or provided for to be done by the State upon roads not included in the State Highway system. The provision of the Act of 1919 last referred to was intended by the General Assembly, in my opinion, to meet the situation which would arise in the event the Congress should appropriate money to be allotted to the States for construction upon roads not included in the State Highway system.
In addition to the provisions of law just quoted, Section 2 of Article 6 of an Act approved August 18th, 1919, further expressly authorizes and empowers the State Highway Engineer and the State Highway Department to supervise and control construction on county roads which are not included in the designated State Aid system. That provision of law is as follows:
"That it shall be the duty of the county road authorities of this State to submit to the State Highway Engineer full information, on a form prescribed by him, any proposed highway construction involving an amount of $2,000 or more per mile, and any proposed construction of a bridge of a clear span of ten feet or more. Upon the receipt of such information it shall be the duty of the State Highway Engineer to take such steps as he may deem necessary to provide surveys, plans, specifications, estimates, and supervision for the proposed work. All such surveys, plans, specifications, estimates and supervision shall be done under the direction or subject to the approval of the State Highway Engineer, and the Board, and without costs to the county." With reference to that portion of Mr. Snead's telegram which relates to the authority of the State Highway Department to construct and maintain roads in and through municipalities, I will state that this question was settled by the Supreme Court of Georgia in the case of Lee County v. Mayor etc. of Smithville, 154 Ga. 550, and again in the case of Green v. State Highway Board of Georgia, 172 Ga. 618. In the Lee County case, the Supreme Court said: "The evident purpose of the legislature was to build paved highways on which the public could travel from county-seat to county-

329
seat, through county-seats to reach other county-seats, and on to the confines of the State. The contrary construction would require the State to build these highways to the limits of a town, which may not pave its streets, then skip to the other side, and begin the work again, leaving unpaved and impassable gaps within the town limits. The contrary interpretation would leave the State without connecting public roads. Continuous highways would be composed of these State roads and municipal streets, the former under the State control, and the latter under town management. If the towns and cities can prohibit the State from locating and building public highways within their limits, we see no reason why they could not refuse to permit the State to connect its roads with the streets within their limits; but one would hardly go so far. The truth is, that the streets of the towns and cities belong to the State as do the county public roads. The legislature has given to the municipalities temporary control over the streets within their borders, which it can wholly withdraw or modify at will. So we reach the conclusion, that the State Highway Department, co-operating with the county commissioners of Lee County, can build this public road through the town of Smithville without its consent and against its will." It will be seen that the effect of this decision is to hold that all of the public roads of the State belong to the State, and the State through its Highway Department can exercise plenary control and jurisdiction in constructing and maintaining such public roads with or without the consent of a municipality, which any such road may traverse. In the Green case just cited, the Supreme Court held that the jurisdiction of the State over the public roads and highways of the State was not limited by the population of any municipality traversed by any such public highway or road, and that the State Highway Department would construct and maintain roads in and through municipalities irrespective of size or population of the municipality.
By a Constitutional amendment proposed by the General Assembly by resolution approved April 17th, 1926, Article 7, Section 1,. Paragraph 1 of the Constitution of Georgia was amended so as to extend the power of taxation over the whole State to be exercised by the General Assembly to the following additional purpose: "To construct and maintain a system of State highways."
By the Act of 1919 (Michie's Code of 1926, Sec. 828 (14)), provision was made for the creation of a State Aid road fund, to consist of such monies as were provided for by that Act and as might "from time to time be appropriated, or provided for road or highway work by the State of Georgia, or from other sources." It was further provided by this Act (Michie's Code, Sec. 828 (15)), that all funds realized from motor vehicle licenses should go into the State road fund. The Act of 1921, known as the Gasoline Tax Act, as amended by the Act of 1923, (Michie's Code, Sec. 993 (155) et seq.) allocates certain revenue derived from the gasoline tax to the State aid road

880
fund. The Gasoline Tax Act of 1929 which increased the State tax on gasoline to 6 per gallon provides that 4 per gallon of the tax shall be set aside to the State Highway fund heretofore referred to. Under a general provision of law, allocated revenue is not available to the Department to which it is allocated, unless appropriated in the General Appropriation Act. The General Appropriation Act of 1931, making appropriation for the years 1932 and 1938, appropriates to the State Highway Department the allocated revenue referred to for "maintenance and construction." The General Appropriation Act of 1983, making appropriations for the years 1934 and 1935, appropriates this allocated revenue to the State Highway Department "for the administrative expenses of operation of the Department and for the construction and maintenance of the State Road system."
It will thus be seen that the State Highway Department is not only expressly authorized by the Act of 1919 to accept the benefit or benefits of any Act of Congress allotting revenue to the State of Georgia for road construction, but is authorized to meet the requirements of any such legislation by the use of the funds provided by the State. This is true, irrespective of whether a road designated for improvement with Federal funds may traverse a municipality.
Subdivision 2 of Section 204 of the National Recovery Act relates to the expenditure of the fund provided for by that Section, "for expenditure in emergency construction on secondary or feeder roads to be agreed upon by the State Highway Department and the Secretary of Agriculture; provided that the State or responsible political subdivision shall provide for the proper maintenance of said roads."
As I construe the National Recovery Act, the secondary or feeder roads referred to in this subdivision of Section 204 are roads which are not on the Federal aid highway system. Such a road may or may not be a part of the State Highway system. If such a designated secondary or feeder road is a part of the State Highway system, there can be no possible doubt as to the authority of the State Highway Department to construct such a road and to provide for its maintenance out of the State Highway funds. If such a road is not a part of the designated State Highway system, it is still, nevertheless and notwithstanding, a part of the State system of roads, and under the broad authority conferred upon the State Highway Department by Article 2 of the Act of 1919 quoted above, and the distinct and definitely expressed authority conferred upon the State Highway Department by Section 2 of Article 6 of that Act also quoted above, the State Highway Department is clearly authorized to improve and construct such a secondary or feeder road not designated as a part of the State aid system of highways. Moreover, under the express authority conferred upon the State Highway Department, by Article 2 of the Act approved August 18th, 1919, to "discharge all duties" arising under any Act of Congress allocating Federal funds, the State Highway Department of Georgia is clearly authorized in my opinion to provide for the maintenance of any secondary or feeder road designated for improvement under the

881
National Recovery Act with Federal funds, whether such secondary or feeder road is or is not on the State aid system of highways.
In addition to what is stated above, the general law of Georgia embodied in Chapter 12 of the Code of 1910 authorized the counties of this State to lay out, construct and maintain any and all public roads.
The counties of this State are authorized by Section 696 of the Civil Code of 1910, (Section 95-808, Code of 1933) to levy an ad valorem tax of not exceeding 40 on the $100.00 of taxable property from the digest, to be expended for the purpose of "working, improving and repairing the public roads." In addition to this source of revenue, the counties of this State are authorized by law to lay a capitation tax upon each able-bodied male citizen between the ages of 21 and 50 for the same purpose. However, persons subject to this tax may, at their option, render road duty in lieu thereof. The Gasoline Tax Act hereinbefore referred to allocates to the various counties of this State 1 per gallon of that tax to be distributed to the counties pro rata on the basis of the State aid road mileage in the county, "to be expended upon public roads and bridges." This fund is expressly set apart for use on roads and bridges which are not on the designated State highway system.
It will thus be seen that there is ample provision of law for the use of State funds already provided for in maintaining any and all public roads in this State.
As stated in this letter, it is my opinion that under the provisons of the law herein referred to, the State Highway Department has authority to undertake construction work upon any public roads in this State, whether on the State Highway system or not, when funds for that purpose are allocated to the State by the Federal government. It is further my opinion that under the provisions of law herein referred to, the State Highway Department is authorized and empowered to maintain any public road in this State constructed with Federal funds, and to use the revenue provided by the State law for the State Highway Department for such purpose, where the Act of Congress allotting such construction fund to the State, or the regulations of the Secretary of Agriculture adopted pursuant thereto requires the maintenance of such road after construction as a condition of the allotment. I am further of the opinion that any county in this State may lawfully use any road fund arising from the ad valorem tax or other taxes authorized to be levied, or from the gasoline tax allotted to the county for the maintenance of any public road constructed within the county with State or Federal funds, including any portion of such a road which may traverse a municipality.

TAXATION-State of Georgia and its various governmental agencies are not subject to processing taxes levied by the United States Agricultural Adjustment Act.
November fl2, 1933
Mr. S. D. Grant
Purchasing Agent State Highway Department
Dear Sir: This acknowledges receipt of your request for an opmwn as to
whether or not the State of Georgia and its various governmental agencies, such as the State Highway Department, are liable for payment of the excise or processing tax on articles manufactured from cotton levied by the United States Agricultural Adjustment Act, passed by Congress June 13th, 1933, as contained in statutes of the United States of America, 73rd Congress, 1st Session 1933, page 35.
Section 9(a) of this Act provides, among other things, that: "The processing tax shall be levied, assessed and collected upon the first domestic processing of the commodity, whether of domestic products or iinported, and shall be paid by the processor. The rate of tax shall conform to the requirements of sub-section (b). Such rate shall be determined by the Secretary of Agriculture as of the date the tax first takes effect, and the rate so determined shall at such intervals as the secretary finds necessary to effectuate the declared policy, be adjusted by him to conform to such requirements."
Also, in Section 9, subdivision (2), it is provided: "(2) In case of cotton, the term 'processing' means the spinning, manufacturing or other processing (except ginning) of cotton; and the term 'cotton' shall not include cotton linters."
The Act also defines the term " processing" with relation to other forms of commodities, such as wheat, rice, corn, etc. It is common knowledge that the excise or processing tax, like most other taxes which are imposed upon manufacturers, processors or vendors of such products, is passed on to the public, the tax so imposed being added into the purchase price of the article in question. Therefore, a processor or vendor of these articles does not bear the burden of this tax, but shifts the same to the purchaser. Therefore, if a processor pays the tax on cotton goods which he manufactures and then sells any of the articles so manufactured, the tax is added into the purchase price and the purchaser pays the tax. Therefore, if company A manufactures a cotton bag and sells the same to the State Highway Department of Georgia, the State Highway Department indirectly pays the processing tax to the United States government as imposed in the above cited Act of Congress.
The question is, then, can the federal government impose such a tax upon a governmental agency of the State of Georgia? In answering this question, we should first decide whether the State Highway Department of Georgia is a governmental agency. Under the provisions of the law of Georgia, it must be taken without dispute to

333
be such an agency. Section 828 (1), Michie's Code of 1926, provides:
"The State Highway Department of Georgia, created and provided for by the Act approved August 16, 1916, is hereby reorganized and reconstituted as hereinbefore provided, and said reorganized State Highway Department of Georgia shall at once succeed without interruption to the duties and powers of the predecessor not in conflict with this Act; and shall have full power and control in the performance and doing of all things provided for in this Act. Acts 1919, p. 242, 243." Also, in Section 828 (9), it is provided: "Said Highway Board shall be the executive and administrative head of the State Highway Department of Georgia, with full power and authority and in full control of the Highway Department, and all road work and highway work within this State as provided under this Act. Acts 1925, pp. 208-211." There can be no doubt that the State Highway Department of Georgia, as created by the Legislature of our State, and under the powers granted to it, is a governmental agency of the State of Georgia. The general principles of law with respect to the relative rights of the federal government to impose taxes upon State agencies, and the State government to impose taxes on federal agencies, are found under the title "Taxation", in 61 C. J. p. 381, Section 380, and are as follows: "Pursuant to principles above stated, the federal governrilent cannot tax the agencies or instrumentalities of a state. The implied immunity from taxation of public property of states and municipalities generally extends to taxes imposed by a state upon its own governmental agencies and instrumentalities or those of its municipal corporations, and to taxes imposed by a municipality upon the agencies or instrumentalities of a state." Practically the same principle is declared in the title "Taxation", 26 R. C. L., p. 84, Section 61, which is as follows: "The taxing power of the federal government is impliedly limited by the fact that the Constitution contemplates the perpetual maintenance of the states with their recognized powers unembarrassed and unimpaired by any action of the United States. The taxing power of the United States does not, therefore, extend to the means or agencies through which the states perform the functions allotted to them by the Constitution."
See: Collector v. Day, 11 Wall. (U. S.) 113; United States v. Baltimore etc. Rwy. Co., 17 Wall. (U. S.) 322; Freedman v. Sigel, 10 Blatchf (U. S.) 327; Merchantile Bank v.
New York, 121 U.S. 138; Pollock v. Farmers Land & T. Co., 157
U.S. 429; 158 U.S. 601; Ambrosini v. United States, 187 U.S. 1; Smith v. Short, 40 Ala. 385; State v. Atkins, 35 Ga. 315; Warren v. Paul, 22 Ind. 276, and many others.
It was said, in the case of Collector v. Day, above cited, that:

884
"The exemption rests upon necessary implication and is upheld by the great law of self-preservation; as any government whose means employed in conducting its operation, if subject to the control of another and distinct government can exist only at the mercy of that government. Of what avail are these means if another power may tax them at discretion?" In the case of Union Bank v. Hill, 3 Coldw. (Tenn.) 3~5, it was said: "We are unable to distinguish upon principle between the right of a state to tax an instrument employed by the government of the United States in the exercise of its sovereign powers and the right of the government of the United States to tax an instrument employed by the state government in the exercise of its sovereign powers and do not believe that any such distinction exists. In either case, the right once acknowledged to exist may be exercised to an extent which will defeat the ends of government. In the case of its exercise by the United States, it would lead to the overthrow of the state government and the absorption of all powers 'reserved to the states, respectively, or to the people thereof' by the federal government, and the consequent destruction of the mutual checks and balances which each have hitherto held upon the other and were regarded by the founders of our government as so essential to the preservation of our free republic institution." Thus it seems the principle is well settled that the relative rights of the state and federal government with respect to the taxation or exemption from taxation of their respective governmental agencies or instrumentalities are reciprocal, co-extensive, and mutally prohibitive within the same degree with respect to each as regards the other. As was said in the case of Mid Northern Oil Company v. Walker, 211 Pac. p. 353: "The restriction upon the power of a state to tax an agency of the federal government is not greater and not less than the restriction upon the powers of the United States to tax an agency of the state."
The case of Indian Motorcycle Company v. United States, ~83 U. S. pp. 57o-583, (75 L. Ed. 1277), seems decisive of the particular point in question with respect to the imposition of the processing tax upon articles purchased by the State Highway Department of Georgia. This case was decided by the Supreme Court at the October Term, 1930, and is one of the most recent expressions upon this subject.
The facts in this case, briefly stated, are as follows: In 1925, the plaintiff, a corporate manufacturer of motorcycles in Massachusetts, sold a motorcycle of its manufacture to the City of Westfield, a municipal corporation of that commonwealth, for use by the city in its police service. A tax in respect of the sale was assessed and collected from the plaintiff under Section 600 of the Revenue Act of June 2, Chapter 234, 48 Statute at Large, 322; U. S. C. Title 26, Section 88~. The plaintiff brought suit for a refund of the sums so paid

385
as a tax, on the ground that it was imposed in contravention of the constitutional immunity of the state and her governmental agencies from federal taxation. The court of claims certified this question to the Supreme Court of the United States: Where a motorcycle is sold by its manufacturer to a municipal corporation of the state, for use by' such corporation in its police service, can the federal government tax the same consistently with the constitutional immunity of the state and her governmental agencies from federal taxation? This question, as certified to the Supreme Court of the United States, was answered in the negative by Mr. Justice Van DeVanter and was concurred in by Mr. Justice Holmes, whose opinion it was that the case was controlled by the decision in the case of Panhandle Oil Company v. Mississippi, decided by the Supreme Court, May 14,1928,48 Sup. Ct. Rep. 451, (72 L. Ed. Adv. 517). The court, in its opinion, used the following language:
"It is an established principle of our constitutional system of dual government that the instrumentalities, means and operations whereby the United States exercises its governmental powers are exempt from taxation by the states, and that the instrumentalities, means and operations whereby the states exert the governmental powers belonging to them are equally exempt from taxation by the United States. This principle is implied from the independence of the national and state governments within their respective spheres, and from the provisions of the constitution which look to the maintenance of the dual system. Collector v. Day, 11 Wall. 113; Wilcutts v. Bunn, 282 U. S. 216." It was further said by the Court: "Where the principle applies, it is not affected by the amount of the particular tax or the extent of the resulting interference, but is absolute. McCullough v. Maryland, 4 Wheat. 316; U. S. v. B. & 0. Rwy. Co., 17 Wall. 322; Johnson v. Maryland, 254 U.S. 51; Gillespie v. Oklahoma, 257 U.S. 501; Crandall v. Nev., 6 Wall 35." Mr. Justice Van DeVanter cited with approval the case of Panhandle Oil Company v. Mississippi, 277 U.S. 218; (77 L. Ed. 857), distinguishing the same from the present case as follows:
"This court was called upon to determine (in the Panhandle case) whether a state excise laid on the sale of gasoline and collected from the dealer making the sale could be applied to sales to the United States for the use of its coast guard fleet and its veterans' hospitals, and the ruling made after such consideration was that the excise could not be so applied consistently with the constitutional principle. The court there held that while a state may impose a tax on a dealer 'for the privilege of carrying on trade that is subject to the powers of the state', she may not lay any tax on sales to the United States by which it secures the thing desired for its governmental purposes," and further,
"It is immaterial that the seller and not the purchaser is required to report and make payment to the state. Sale and pur-

336
chase constitute a transaction by which the tax is measured and on which the burden rests. To use the number of gallons sold the United States as a measure of the privilege tax is in substance and legal effect to tax the sale. (Citing cases). And that is to tax the United States-to exact tribute on its transactions and apply the same to the support of the state." Thus we see that the Supreme Court of the United States has answered the question involved in this opinion in very explicit terms and in well reasoned opinions. Processing tax as laid under the Act of Congress above cited will necessarily be passed on to the state and added into the costs of any articles falling within the provisions of said Agricultural Adjustment Act, which are purchased by the State, and thus the State would have to bear. the tax thus imposed. This would create a situation which is analogous to that which existed in the Panhandle case, and therefore the State in making purchases of articles which bear the processing tax, is exempt from the payment of such tax. The principle laid down by Chief Justice Marshall in the famous case of McCullough v. Maryland, 4 Wheat. 316, has been uniformly adhered to by our courts, that principle being that the power to tax is the power to destroy. If the United States government can tax the instrumentalities of the state government by means of excise taxes on the commodities purchased by the State which are necessary to the functioning of its agencies, it can destroy these agencies and therefore embarrass or destroy the state. It is therefore, the opinion of this Department that the governmental agencies of the State of Georgia are exempt from the pay-. ment of the processing tax as imposed by the Act of Congress under its Agricultural Adjustment Program.
INSURANCE-Association of business men organized for mutual welfare to protect each other against loss by fire through assessments is engaging in insurance business
January fl3, 1933
Hon. Lewis A. Irons Deputy Insurance Commissioner
Dear Sir: I have your recent letter and a communication from Messrs.
Bright, Theus & Brannen of Savannah requesting information as to whether or not the Insurance Commissioner would have jurisdiction over an association of business men engaged in the same line of business organized for mutual welfare to protect each other against loss by fire through an assessment arrangement.
In my opinion such an association as. that referred to would be engaging in the insurance business within the meaning of the law. (See in this connection Civil Code 1910, Section 2529, and Section 2418; Sec. 56-1401, and Sees. 56-902, 56-403, Code of 1933.)

837
Such an association might be formed under the provisions of the Act of 1923, Georgia Laws 1923, page liS, Michie's Code Section 2543(1), et seq., and carry on the business provided for under the provisions of that Act. (Sees. 56-1434, et seq., Code of 1933) Sections 2866, et seq., of the Civil Code relating to fraternal beneficiary orders has application only to such associations having a "ritualistic form of work for the meeting of its lodges, chapters, or other designated subordinate bodies" and would not apply to an association such as that referred to in your letter.
INSURANCE-Duty of Insurance Commissioner to require insurance companies of other states requiring from Georgia companies fees in excess of amount charged by Georgia to require similar conditions to be met in Georgia by companies of such other states
April 3, 1933 Ron. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
Your letter of March 22nd with inclosures is acknowledged. It appears from your letter and from the inclosures thereto attached that the General Assembly of the State of South Carolina on June 16, 1931, enacted a law imposing, in addition to the annual license fee then provided by law, a graduated license fee in an amount equal to one per centum of the total premiums collected in the State of South Carolina. This license fee was imposed upon all the insurance companies not incorporated under the laws of South Carolina.
The Act denominates this a license fee and refers to it as a fee several times in the various sections of the Act. By the terms of the Act domestic insurance companies are exempt from its provisions.
Under Code Section 2449 (Sec. 56-315, Code of 1933), which you refer to in your letter, it is provided that where the laws of other states require from Georgia companies payment of fees for certificate of authority, license fees or otherwise, in excess of the amount charged by Georgia to the companies of that State, this State shall require similar conditions to be met in Georgia by the companies of such other states charging Georgia companies such higher rates.
The above code section is in conformity with the general law in this State in regard to foreign corporations. In Code Section 2203 it is provided that corporations chartered by other states are recognized in our courts only by comity, and so long as the same comity is extended in their courts to corporations created in this State.
Under Code Section 9 (Sec. 102-llO, Code of 1933) the provisions of the comity of states is set forth. It is there provided that the laws of other states and foreign nations shall have no force and effect of themselves in this State, further than is provided by the Constitution of the United States and is recognized by the comity of states.

888
This comity is enforced only so much as its enforcement is not contrary to the policy or prejudicial to the interests of this State.
Provisions similar in many respects to Section 2449 will be found in Section 2889 (Sec. 16-209, Code of 1933) on the question of reciprocity. It is there provided as follows:
"When, by the laws of any other State, Territory, or nation, any taxes, fines, penalties, license fees, deposits of money, or securities, or other obligations or prohibitions are imposed on building and loan associations of this State, doing business in such other State, Territory, or nation, or upon their agents therein, so long as such laws continue of force, the same obligations or prohibitions of whatever kind shall be imposed upon all building and loan associations of such other State, Territory, or nation doing business in this State, and upon their agents here." Therefore, in the opinion of this Department, since the Act of South Carolina referred to requires a license fee to be paid by nonresident insurance companies doing business in that State in excess of the amount charged by Georgia to companies of other states, that you are charged with the duty of requiring similar conditions to be met in Georgia by the companies of that State. I am of the opinion that your letter is the correct interpretation of this law. I think you have the right to call for the additional annual license fee upon all business written since the date of the approval of the Carolina Act. We are returning herewith the original papers forwarded with the etter.
INSURANCE-Insurance Commissioner has no authority to promulgate a rule that interest must be paid on all premiums other than life insurance after forty-five days past due
April 6, 1938
Hon. Lewis A. Irons Deputy Insurance Commissioner My dear Mr. Irons:
This letter is in reply to yours of April 5th in which you request this Department to advise you whether or not under the provisions of the Insurance Code of Georgia, 2412(i), Acts 1912, pages 119-126, which authorizes the insurance commissioner to "prescribe such additional rules and regulations as he may deem proper for the control and government of all insurance companies mentioned in this law," he would be exceeding his authority in promulgating a rule as follows:
"It is ordered by this Department that all insurance premiums other than premiums upon life insurance, remaining unpaid for a period exceeding forty-five (45) days from the effective date of the policy, shall be considered under the Anti-Discriminatory Laws of the State in direct violation of such laws unless if carried there-

889
after interest is paid at the legal rate upon said delinquent premiums and charged from the effective date of the policy." In my opinion you are not authorized under the law to make such a ruling as a regulatory measure. The question of the payment of premiums on insurance policies is one which addresses itself exclusively to the agent and assured O!J the one hand, and the agent and the company on the other. The manner and method usually adopted by insurance agents in collecting premiums for policies of insurance, except life insurance, brings about the relation of debtor and creditor between the assured and the agent. The methods usually adopted by the agents and the companies whom they represent for the remitting of the premiums collected within a sixty or ninety day period creates the same relation. Whether or not companies, or companies through their agents, are permitted to cancel policies for the non-payment of premiums depends upon the provisions in the policy contract. You would not have authority to issue any regulatory measure which would have the effect of changing the terms of such contracts. Therefore, I am of the opinion that a law, or a regulation based upon a provision of law authorizing the same, covering the particular subject of arrearages in the payment of insurance premiums, is the only way in which the matter might be handled. In the absence of such law you would not be authorized to issue a resolution having the same purpose and intent as the one quoted.

TAXATION-Annuity contracts of life insurance subject to property tax in this State under certain conditions

April14, 1988

Hon. Lewis A. Irons

Deputy Insurance Commissioner

My dear Mr. Irons:

Your letter of April 7th in which you ask whether or not an

Annuity Contract of Life Insurance would be subject to property

taxes in this State under certain conditions is acknowledged.



The conditions assumed in your letter are: (1) The contract is with a nonresident company; and (~) the

contract being primarily a deferred annuity having several available

options, such as, (a) a cash value available to annuitant upon

request, (b) the privilege of life or refund annuity at any fixed age,

(c) privilege of receiving the net proceeds in periodic installments

until proceeds and interest additions are exhausted, (d) the privilege

of leaving the net proceeds with the company at interest at his

option, and (e) the privilege of leaving the proceeds with the com-

pany to be withdrawn at his option, but taking down the interest as

it accumulates. In order to determine whether or not such a contract or the pro-

ceeds thereunder is subject to property taxes, it is first necessary

340
to determine the character or kind and amount of estate the insured has therein.
In the first place, it can be readily seen that it is possible for one to accumulate a large estate made up exclusively of similar annuity benefits payable at the option of the annuitant. One may thus invest his entire earnings and accumulate a present valuable estate represented entirely by the cash values of such contracts. Such cash values, if left with the companies, are drawing interest at a specified rate which the company agrees to pay, and which is either paid to the annuitant or is added to the annuity benefit value.
In the next place, the company itself is not required to pay any tax whatever upon such accumulating estates of annuitants under such contracts. It is not required to even make a return disclosing the value of such contracts. Code Sections 1047 to 1049, inclusive. (Michie's Code of 1926; Sees. 92-5905 to 92-5907, Code of 1938) See also Section 6557 (Sec. 2-5006, Code of 1933).
By the provisions of Code Section 998 (Sec. 92-201, Sec. 92-202, Code of 1933) certain described property is exempt from taxation. The constitutional provision is found in Paragraph 2 of Section 2 of Article 7 (Code Section 6554; Sec. 2-5002, Code of 1933). And by the provision of Paragraph 4, Section 2, of Article 7 of the Constitution, Code Section 6556 (Sec. 2-5005, Code of 1933) any law exempting property from taxation, other than that exempted by the above sections is void.
Taxation is the rule and exemption is the exception. See Athens City Water Works v. Mayor, etc. of Athens, 74 Ga. 413; and Mundy v. Van Hoouse, 104 Ga. 292, 297.
Section 998 supra, must be strictly construed, as was held in the case of Brenau Association v. Harbison, 120 Ga. 929. Quoting from the opinion on page 933:
"Taxation, therefore, is the rule, and exemption from taxation the exception . . . . And exemptions are made, not to favor the individual owners of the property, but in the advancement of the interests of the whole people. Exemption, being the exception to the rule, is not favored; but every exemption, to be valid, must be expressed in clear and unambiguous terms, and, when found to exist, the enactment by which it is given will not be enlarged by construction, but on the contrary will be strictly construed." The above rule has been recognized by our Supreme Court in many cases and so far as I have been able to determine is still recognized and applied in construing all tax exemptions. Gainesville v. Brenau College, 150 Ga. 156, 162. The general rule of taxation is as follows: "All real and personal estate, whether owned by individuals or corporations, resident or nonresident, is liable to taxation." Code Section 1002; Sec. 92-101, Code of 1933. The words "personal estate" as used in the above section have been defined to mean, in connection with corporations: "Such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real or personal estate;"

341
and by the provlSlons of Section 1002 (1) (Sec. 92-101, Code of 1988), the term "personal property" includes the following:
"Personal property shall be construed, for purposes of taxation, to include all goods, chattels, moneys, credits, and effects, whatsoever they may be, all ships, boats and vessels belonging to the inhabitants of this State, whether at home or abroad, and all capital invested therein; all money within or without the State due the person to be taxed; all stocks and securities in corporations in other states owned by citizens of this State Itnless exempt by the laws of the United States or of this State." Shares of stock in foreign corporations are taxable if held by citizens of this State or owned in this State. See Ga. R. Etc. Co. v. Wright, 124 Ga. 596,598, 125 Ga. 589; also Coca Cola Co. v. Atlanta, 152 Ga. 558, 568; and Wright v. Louisville, Etc. R. Co., 195 U.S. 219, (49 L. Ed. 167). Notes and accounts, credits of a foreign corporation, maintaining a place of business in this State are taxable. See Armour & Co. v. Savannah, 115 Ga. 140; also Armour & Co. v. Augusta, 118 Ga. 552; and Armour & Co. v. Clark, 124 Ga. 869. In an early case our Supreme Court held that the situs of a debt for taxation is the place where the debtor resides. See Bridges v. Griffin, 88 Ga. 118. In that case it was sought to tax notes owned by a resident of this State, due by person residing without the State. Such notes, bonds or other obligations for money, on persons in other states, or of other states, or bonds of corporations of other states, and shipping, are the subjects of return and taxation in this State. See Code Section 1016 (Sec. 92-102, Code of 1988). This form of taxation is not violative of the interstate commerce clause of the Constitution. See Atlanta Nat. Bldg. & Loan Assn. v. Stewart, 109 Ga. 80. The situs of bonds, notes, and all other evidences of debt, for the purpose of taxation, follow the situs of the creditor, no matter where the debtor resides, and are taxable where the owner resides. Augusta v. Dunbar, 50 Ga. 887; Green Co. v. Wright, 126 Ga. 504; Blakely v. Hilton, 150 Ga. 27. In the Dunbar case, supra, on page 892 of the opinion, Justice McCay said: "In our judgment this is a clear indication and declaration of the legislative will that the property in bonds and notes or other obligations to pay money, is located at the place of the residence of the owner of them, and that at least since the first of January, 1868, when the code went into effect, such is the law of this State for purposes of taxation. And this is, in our judgment, the correct rule, sustained by the current of decisions and by right reason."
See also Fulton Co. v. Wright, 146 Ga. 452, and, City of Blakely v. Hilton, 150 Ga. 88; also Collins v. Miller, 48 Ga. 886, 888.
In making returns of such property as choses in action, notes, bonds, and other obligations and evidence of debt, the owner should return same at its fair market value. The value to be placed on

342
them is what the owner believes to be their fair market value. See Lewis v. Horne, 44 Ga. 627, 629; also Code Section 1010 (Sec. 92-5703, Code of 1933).
By the provisions of Code Section 1003 (Sec. 92-5701, Code of 1933) such property as choses in action, etc. shall be given in at their fair market value whether solvent or partially solvent. The words "Fair Market Value" are defined by Code Section 1004 (Sec. 92-5702, Code of 1933).
One of the questions which must be asked by the tax receiver and which must be answered by the taxpayer, and the one question pertinent here, is as follows:
"What is the gross value of your notes, accounts, or other obli~a tions for money, and the market value thereof, whether the same are within or without the State?" Code Section 1087; (Sec. 92-6215, Code of 1933). It is a general rule of law and generally recognized that the legislature may exercise wide discretion in selecting and classifying subjects of taxation, and may arrange and divide subjects of taxation into distinct and impose different rates on the several classes without violating the requirement of equality and uniformity, provided the tax is uniform on all members of the same class, and provided the classification is reasonable and not arbitrary. However, it cannot discriminate against particular persons or classes. 61 C. J. 126, Paragraph 58. Shares of stock may be put in a different class from other intangible personal property; and so may shares of stock in banking institutions. 61 C. J. 131, Paragraph 62. Credits may be classified by the legislature for taxation. 61 C. J. 132, Paragraph 64. And see the case of Clement Nat. Bank v. Vermont, 231 U.S. 120 (58 L. Ed. 147) where it was held: "A tax imposed upon interest-bearin~ deposits in national banks is permitted." And it has been held that the State has a right to enact tax laws that may incidentally affect the profit arisin~ from a contract; and that this does not unlawfully impair the contract, because it was made subject to just that kind of impairment. Rutland R. Co. v. Cen. Vt. R. Co., 63 Vt. 23; 10 L. R. A. 562; 21 Atl. p. 262, 731. On page 134 of the Clement case in 231 U. S. supra (p. 155 L. Ed.) the court said:
"The transaction which makes the money the property of the bank gives the depositor a credit of equal amount and the term 'deposit' may be used to indicate the money deposited or the credit which the depositor receives for it .... No one contends, says the plaintiff in error, that a State has not the right to include in its taxation of a person's property the amount which he may have on deposit in the saving's department of a national bank."
Under this rule it frequently happens that the same property is taxed in two places. This is permissible, provided the places are not

343
within the same jurisdiction. Each State, with regard to the taxation of property within its territorial limits is sovereign and independent, and the taxation of property within the jurisdiction is not rendered objectionable as double taxation by the fact that the same property is also assessed for taxation in another State. 61 C. J. 141, Paragraph 73, and Ga. R. Etc. Co. v. Wright, 125 Ga. 589. (This case was reversed on other grounds in 207 U.S. 127, 52 L. Ed. 134).
And so it has been held that both debtor and creditor may be taxed, the one on his property and the other on his security. 61 C. J. 142, Paragraph 76.
Although the taxation of credits, or debts due a creditor, generally results in duplicate taxation, it is not double taxation in the prohibited sense. 61 C. J. 143, Paragraph 80.
In the case of Bridgeport Projectile Co. v. City of Bridgeport, 102 A. 644, 92 Conn. 316, it was held:
"(1) Bank credits represented by deposits may be taxed in one State although the deposit may be taxed in the other; and (2) the right of a state to tax a resident corporation on a bank credit in a sister state is not affected by the possibility that the latter state may compel payment of a second tax . . . . (S) the right of a state to tax bank credits in a sister state does not rest wholly upon fiction that movables follow owner, but also on protection which state affords to corporate privileges and business." Other jurisdictions have adopted the general rule applied by the courts of this State as hereinabove stated, as follows: "A debt being regarded as situated at the domicile of the creditor for the purpose of taxation, the taxation of such debt at the domicile of the creditor does not deprive the taxpayer of property without due process of law. Where the credit is reduced to the concrete form of notes, a taxation of the credit is not a denial of due process of law, because the notes are temporarily removed from the State. The mere presence of such instruments as note;: and mortgages within the State does not give it a right to tax them where neither the debtor nor the creditor reside therein." 61 C. J. 160, Paragraph lOS.
A membership in the New York Stock Exchange owned by a resident in Ohio is taxable in that State, even though the membership privileges are taxable in New York. See 61 C. J. 161, Paragraph 105. And see Citizens Nat. Bank of Cin. v. Durr, 257 U. S. 299, (66 L. Ed. 149).
Again, it is a general rule that all "property" within the jurisdiction of the State, and not exempted, is subject to tax. 61 C. J. 176, Paragraph 134. And the word "property" as used in tax laws is a generic term, including all property of whatever description, tangible or intangible, and covers every species of valuable ri!fht and interest. 61 C. J. 177, Items with cash values.
The authorities, generally, have adopted a broad rule in defining choses in action and securities that are subjects of taxation, and have held that:

344

"Enforceable claims, securities and similar intanlffible

interests, however represented, constitute property subject to

tax." 61 C. J. 192, Paragraph 156.

These include (1) enforceable claims or demands for money; (2) ac-

counts; (3) bills of exchange; (4) bonds; (5) contracts for sale of

realty; (6) credits; (7) debts due; (S) leases; (9) liquidated claims;

(10) outstanding accounts; (11) notes; (12) solvent debts and credits; (13) stocks and securities of all kinds; (14) beneficial interest in

trust fund.

Under a statute taxing claims or demands due or to become due,

for money, labor, or other thing of value, the word demands em-

braces all rightful claims whether founded on contract or tort, or

superior right of property. Statutes of this character have been

construed as to tax open accounts and claims under insurance policies. 61 C. J. 195, Paragraph 159, and see Talley v. Brown,

146 Iowa 360, 125 N. W. 248; 140 Am. S. R. 282.



Under statutes which tax credits it has been held that "net

credits" are meant, and as taxing claims rtnder insurance policies,

etc., 61 C. J. 195, Paragraph 160. See Cooper v. Montgomery Co.

Bd. of Review, 207 Ill. 472; 64 L. R. A. 72; 69 N. E. 878, where it

was held that a policy of Fraternal Benefit Insurance was taxable

after the death of the insured and even before proof of death had

been submitted.

I have analyzed the various constructions placed upon tax statutes

generally in the above and foregoing in order to get clearly the general

ideas of taxation under general statutes.

In addition to what has been said hereinbefore, it is to be borne

in mind that generally claims arising under life and annuity con-

tracts of insurance, and the cash surrender values, represent an asset

which is administered for the benefit of creditors in the event of

bankruptcy. So, while such claims are generally recognized as an

estate of the insured or annuitant, it is extremely doubtful if such a

claim is taxable under our tax statutes which we have quoted in this

letter.

I do not know of a particular statute expressly classifying annuities

as personal property subject to tax in this State; and in the absence

of such a statute expressly permitting such a tax on interests or

claims of this character, and providing methods for determining

their assessment values, I doubt if they could be reached under our

general statute providing in general terms for the taxation of all

property. See Wellman v. Board of Com. of Jewell Co., 252 P. 193,

122 Kan. 129. See also Richey v. Shute, 43 N.J. Law 414, 416.

It has been held by some authorities that where there is an express

provision in the statute classifying annuities as personal property

subject to tax, they may be taxed to the annuitant. Chisholm v.

Shields, 21 Ohio Cir. Ct. 361; Wilkins v. Board of Com. of Okla-

homa Co., 186 P. 474, 77 Okla. 88.

Under the Oklahoma statute an installment certificate issued by an

insurance company whereby the insured obligated himself to pay the

beneficiary certain semi-annual payments for a stated period and

845

thereafter a final payment was subject to taxation as an annuity.

See Rev. Laws 1910, Sec. 7302, 7305 and 7311, and Wilkins v. Board

of Commissioners of Oklahoma Co., 186 P. 474, and 77 Oklahoma 88.

In Pennsylvania annuities less than $200.00 are not taxable.

Berks Co. v. Jones, 21 Pa. 413.



It is possible that the property or estate represented by annuity

contracts of insurance are taxable on the theory that such contracts

are distinguishable from straight annuity contracts generally. A

straight annuity contract differs from one for life insurance in that

the latter provides for the payment of a lump sum conditionally in

consideration of periodical payments by the insu,red, while the

former contemplates periodical payments of an annual amount,

purchased by the annuitant for a stated sum. It has, therefore, been

held that the rules applicable to life insurance do not govern an

annuity contract. See People v. Security Life Ins. Co., 78 N. Y.

114; 7 Abb N. Cas., 198; and Cuthbert v. North American Life

Assur. Soc., L. R. Eq. 306.

I am not in position to give a definite opinion as to the probable

attitude that our Supreme Court would take in construing our

statutes and in applying them to the taxation of annuity interests

represented by insurance contracts.

There is some doubt in my mind about the matter, but in view

of the facts as stated in this letter, and particularly since taxation

is the rule, and exemptions the exception which will not be extended

by construction; and, since, under our general statute, all property

is taxable; and since, this annuity interest may represent a valuable

estate; and since simple annuity contracts are distinguished from

life insurance annuities; and since in some jurisdictions claims under

policies of insurance generally are the subjects of taxation, I am

inclined to the opinion that the tax should be imposed.

In the event the tax is imposed, a transfer of the contract vesting

absolute title in the transferee who assumed all obligations set out in

the contract, and who became the sole beneficiary of the benefits

of the contract, would not affect the tax status or the obligation

to pay the tax assessed.

TAXATION-Discussion of insurance companies doing business in this State being taxed by municipalities
April 22, 1933 Hon. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
In reply to your letter of April 5th, inquiring as to the right of municipalities to impose and collect license fees on insurance companies doing business in the State, where such companies have paid the license fees imposed under Section 58 of the General Tax Act, I wish to advise as follows:
From the correspondence inclosed in your letter it appears that the company in question is a nonresident of the State, but duly

846
admitted to do business in the State. It also appears that this company has paid the tax assessed by Paragraph 58 of the General Tax Act, insofar as its general, specific, traveling State or district agent is concerned.
Therefore the sole question involved is as to the rights of municipalities to collect the business or occupation tax for the privilege of conducting such business in the various municipalities of the State.
This question is one which addresses itself exclusively to the municipalities on the one hand and the company on the other. An opinion from this Department on this question would neither be controlling or binding, insofar as the rights of the parties are concerned. This would be true also insofar as any ruling your office might make on this particular question.
Under the law of this State municipalities are limited in their right to impose taxes by the provisions of the charter granted by the legislature incorporating the town or city. In this connection charters usually contain a provision authorizing a city or town to tax occupations, businesses, etc. Generally this right includes the right to tax foreign corporations, transacting its usual business within the city. This right was recognized in the following cases, as well as a number of others: Home Insurance Co. v. City of Augusta, 50 Ga. 530; Kehrer v. Stewart, 115 Ga. 184, 117 Ga. 969, 197 U. S. 60 (49 L. Ed. 663); Georgia v. Southern Express Company, 133 Ga. 113; Ray v. Tallapoosa, 142 Ga. 799.
Municipal councils have large discretion, in the absence of charter provisions to the contrary, as to what is a reasonable occupation tax, and their determination will not generally be declared unreasonable by the courts unless it is clearly so. Postal Telegraph Co. v. Cordele, 141 Ga. 658. And the occupation tax so laid is not dependent upon the amount of business conducted. If the particular business in that municipality as a whole justifies the tax, it is not invalid as being unreasonable because certain merchants do a very small amount of business. Ray v. Tallapoosa, 142 Ga. 799; Postal Telegraph Co. v. Cordele, 141 Ga. 658; Farmers Hardware Co. v. Vienna, 144 Ga. 205; Trammell v. Yancey, 142 Ga. 553; Rome Bottling Co. v. Calhoun, 134 Ga. 360.
The fact that this company has paid the $100.00 tax to this State, required of its general, special or traveling, State or district agent, the payment of which tax permits said agent to go into any county within the State, would not prohibit municipalities from imposing license fees upon such companies engaged in the conduct of its business within its confines. Whether or not such tax may be collected by a municipality would depend: (I) Upon the charter provisions. (2) Upon the particular ordinances or resolution levying the tax.
In the case of Wright v. Atlanta, 54 Ga. 648, which has been followed by the Supreme Court of this State, it was held that the right of municipalities to require persons engaged in carrying on business within its limits, to register and take out licenses, applied to businesses of such persons as may have already obtained licenses

847
from the State to prosecute their respective callings. In this connection see also Mayor of Savannah v. Cooper, 131 Ga. 670; City Council of Augusta v. Clark, 124 Ga. 254.
Since the question propounded is one to be finally determined by the municipality and the company, and since the facts would necessarily vary with the charter provisions and ordinances imposing the tax, and since such opinion as might be given by this Department could not be controlling or binding on the parties at interest, and could neither add to nor take from their respective rights, we have not attempted to definitely and specifically answer the question asked by this company. The manner and method of conducting the business in the various municipalities would likewise have a bearing upon the right of a municipality to impose the tax.

SECURITIEs-Securities Act of 1920 supersedes certain code sections regulating corporations selling securities

June 5, 1988

Hon. W. B. Harrison

Comptroller General

Dear Mr. Harrison:

I have your letter of June 2nd, in which you ask that I advise you

whether or not Sections 2899 to 2909, both inclusive, of the Civil

Code of 1910 are now of force.

'

The Code Sections referred to deal with investment companies.

Section 2899 requires each company organized under the laws of

this State, or conducting business within this State, to provide a

redemption reserve fund of not less than 75% of the amount col-

lected in pensions for the benefit of the protection of its investors.

That Section requires such companies to make a deposit of not less

than $25,000.00 in cash or bonds with one of the State depositories,

or some trust company, which fund shall be for the protection of the

investors.

Section 2900 requires the filing of certain statements of the Comp-

troller General.

Section 2901 provides for the licensing of such companies by the

Comptroller General.

The succeeding sections regulate the filing of annual statements,

the issuing of annual licenses, and the manner and method of doing

business by such companies.

The Act of 1920, known as the Georgia Securities Law, regulates

the issuance and sale of various securities therein defined. The

securities dealt with by Section 2899 of the Civil Code fall within

the definition provided by the Securities Act of 1920. The Se-

curities Act of 1920 has been variously amended, but not with

reference to the particular question you ask. The original Act of

1918, which was expressly repealed by the Act of 1920, specifically

provided that it was not intended and should not operate to repeal

any existing statutes for the regulation of corporations or asso-

ciations engaged wholly or partially in the issuance or sale of, or

348
otherwise dealing in stocks, bonds, debentures, etc. Under the original Act of 1913, Sections 2899 et seq. of the Code were not repealed or superseded. The Act of 1920, however, contains no such provision as that just referred to in the Act of 1913.
The general rule is that repeals by implications are not favored. In Sapp v. Elrod, 41 Ga. App. 356-359, there is quite a discussion of this subject, and Judge Bloodworth, of the Court of Appeals, quoted from prior decisions from the Supreme Court, as follows:
"In Butner v. Boifeullet, 100 Ga. 743 (28 S. E. 464), Judge Atkinson quoted from the case of Butler v. Russell, 3 Clifford, 251, in" which Justice Clifford of the Supreme Court of the United States, presiding on the circuit bench of the first circuit, laid down the following rule: 'Where the provisions of the old statute are revised in the later enactment, and where the later statute was intended to prescribe the only rules upon the subject, the subsequent is held to repeal the former statute. When a revising statute covers the whole subject matter of antecedent statutes, it virtually repeals the former enactments, without any express provision to that effect. Where some parts of the revised statute. are omitted in the new law, they are not, in general, to be regarded as left in operation if it clearly appears to have been the intention of the legislature to cover the whole subject by the revision.' In Horn v. State, 114 Ga. 510 (40 S. E. 768), Chief Justice Simmons thus states the principle: 'The rule as to repeal by implication is, in such cases, so far as we can ascertain from the authorities, that when the legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original Act, and a portion of the original Act is left out, such omitted portion is repealed by implication.' We recognize that repeals by implication are not favored, and it is only when 'a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two cannot stand together, or is manifestly intended to cover the subject matter of the former and operate as a substitute for it that such a repeal will be
s. held to result.' Johnson v. So. Mut. Bldg. & Loan Asso., 97 Ga.
622 (25 E. 358)."
Manifestly, the Securities Act of 1920 was intended to cover the whole subject matter of licensing those engaged in issuing and selling securities. Therefore, in so far as the Code Sections referred to relate to the licensing of such corporations, and as to the time and manner of filing annual statements, etc., in my opinion these Code Sections are superseded by the Act of 1920, as amended. However, the Act of 1920 does not undertake to deal with the regulation of such companies for the protection of their investors, as dealt with by Section 2899, of the Civil Code. In my opinion that Section is still of force and the remaining Sections not in conflict with the Securities Law are still of force.
I do not think, however, that such corporations are now required to register with the Comptroller General, or to file with him the statements required by Sections 2900 and 2902, or that they are

849
required to obtain licenses from the Comptroller General. I think, as to these matters, such corporations are regulated by the provisions of the Securities Law.

INSURANCE-Abatement from premium tax

Hon. Lewis A. Irons

August 21, 1933

Deputy Insurance Commissioner

Dear Mr. Irons:

In reply to your letter of August 9th relative to the Bankers

Health and Life Insurance Company of Macon, on the subject of the

abatement from preminum tax to which the company may probably
be entitled, I wish to advise as follows: It appears from the sections of the Tax Act to which you refer in

your letter, to wit, Sections 7(1) and 7(2), (Michie's Code of 1926, Sections 99.3(131), 993(132), and 993(133) ), that an abatement of

one-half per cent is permitted to insurance companies, reducing the premium tax from 1~% to 1%, if one-fourth of the total assets of
the company are invested in certain securities or property in this

State and that an abatement of three-fourths of one per cent if three-fourths of the total assets are so invested.

These sections provide that such insurance companies shall be

required to return for taxation all of its real assets as other real estate is returned. It is provided further that such companies shall

make it appear by proof to the Insurance Commissioner that either

one-fourth or three-fourths of the total assets are invested in such

securities or property in this State before they shall be entitled to

such abatement. It appears that The Bankers Health and Life Insurance Com-
pany owns certain real estate in Bibb County and that the value of this property as listed in the admitted assets was $106,038.39, while this property was actually returned for taxation at $48,500.00. It

also appears from the return that the total admitted assets as of January 1, 1933, was $799,144.98. Three-fourths of the total admitted assets, therefore, would aggregate $599,358.73.

The sworn statement filed with the return shows that the total of Georgia investments is $642,258.06. If this figure is reduced by the

difference between $106,038.39 and $48,500.00 the total of the Geor-

gia investments would then run $584,719.61. This total would be

less than three-fourths of the total admitted assets.

.

In this particular case if the Macon property is taken at the figure

$48,500.00 as shown by the tax return this would necessarily reduce the total admitted assets to $741,606.50. (By this process the $57,538.39 is taken from the total admitted assets.)
That being true, three-fourths of $741,606.50 would only be $556,404.88, which is less than the amount invested in the Georgia property and securities, that amount being as hereinbefore stated,

$584,719.61 and on these figures, of course the company would be

850
entitled to the abatement at the rate of three-fourths of one per cent. This opinion is based upon the proposition that when the figures
at which the property is returned is taken at the basis that that same property should be included in the total admitted assets at the same figure, at least for the purpose of determining whether or not the company is entitled to the abatement claimed.
This opinion does not deal with any of the other items on said return since no questions were asked relative to these other items and and since no facts were given based on any of the other items in the statement.
Since the above case does not involve a construction of the law on the question as to whether such insurance company can return its real estate at one figure and then claim another value in listing its property invested in the State for the purpose of ascertaining whether or not it is entitled to abatement on the premium tax, I am not giving you an official opinion on that point. Should that question arise in the future in connection with similar claims on the part of insurance companies, if at that time you will submit me a full statement of all the facts involved in the particular case I shall be glad to give you my construction regarding that question.
I am returning the complete file herewith.
INSURANCE-Rights of creditors and beneficiaries under policies of life endowment and accident insurance and under annuity contracts
November 3, 1933
Hon. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
I have your letter of November 2nd with reference to the Act approved March 24, 1933, (Georgia Laws 1933, p. 181), entitled "An Act in relation to the rights of creditors and beneficiaries under policies of life endowment and accident insurance and under annuity contracts."
I think you have correctly interpreted this statute. As I read it, the intent and purpose of the General Assembly was to give the beneficiary named in the policy, or the transferee of the policy, rights superior to those of the creditors of the insured. Of course, if the right to change the beneficiary is reserved or permitted, and there is an actual change of beneficiary by the policy being made payable to the estate of the insured, this statute would have no application.
I am somewhat doubtful as to the meaning of the clause which stipulates that the superior rights provided shall inure to the benefit of the beneficiary or assignee, "whether or not the right to change the beneficiary is reserved or permitted, and whether or not the policy is made payable to the person whose life is insured, if the beneficiary or assignee shall predecease such person." If the General Assembly intended by this provision to destroy the right of the insured in ll-

851
contract of life insurance, in which the right to change the beneficiary is reserved to so change the beneficiary, in my opinion, the limitation is void. Of course, there can be no beneficiary if the policy is made payable to the insured. I do not think the death of an assignee of a policy of life insurance could possibly vest in his estate an indefeasible right to the proceeds of the policy. For instance, if the policy should be assigned as security for a debt, the assignee would have no right in the policy after the payment of the debt, and his death would not defeat the right of the insured to pay off the debt and have the assignment cancelled.
If the intent of the General Assembly was to make the contract of assignment indefeasible upon the death of the assignee, in my opinion, that limitation is also void. Both of these limitations just referred to, if given the construction mentioned, are violative of the provisions of the Constitution of the United States, which prohibit the passage of any law impairing the obligation of such a contract.
INSURANCE-Amount of deposit required by law to be made by fire, marine and inland insurance companies doing business in this State
December 21, 1988
Hon. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
I have your letter of December 19th, 1933, requesting an opinion as to the amount of the deposit now required by law to be made by fire, marine and inland insurance companies doing business in this State.
Section 2419 of the Civil Code of 1910 (Sec. 56-301, Code of 1933) fixes the amount of this deposit at $25,000.00. The Act originally requiring this deposit to be made and fixing the amount at $25,000.00 was passed in 1887 as a part of the general Act regulating the business of insurance in this State. Georgia Laws 1887, p. 113. It was carried in the Civil Code of 1895 at Section 2035. By an act approved December 20th, 1889, amending Section 2035 of the Civil Code of 1895 and certain other sections of that Code, the amount of the deposit required to be made by fire, marine and inland insurance companies was reduced to $10,000.00.
In 1905, Section 2035 of the Code of 1895 was further amended by an Act approved August 22nd, 1905, (Georgia Laws 1905, p. 75), by permitting the deposit of bonds of any county or municipality of this State validated under the laws of this State. The Act of 1905, in its amendatory provisions simply provides for the insertion of the language referred to, and then provides that the section as amended "shall read as follows." The Act of 1905 then sets forth Section 2035 of the Code of 1895 as it reads in the Code with the addition of the language relating to the deposit of municipal and county bonds. There is some doubt in my mind as to whether the legislature

852
intended by the Act of 1905 to refix the amount of the deposit at $25,000.00. This is so for the reason that the Act of 1905 does not purport to amend the Code of 1895 as already amended by the Act of 1899. It seems evident that the General Assembly in passing the Act of 1905 must have overlooked the amendatory Act of 1899.
However, Section 2035 of the Civil Code of 1895 as amended by the Act of 1905 is carried forward into the Civil Code of 1910 and is embodied in that Code as Section 2419. As stated, this section fixes the amount of the deposit at $25,000.00.
You state in your letter that you are informed that the attention of Hon. Wm. A. Wright, late Comptroller General and Insurance Commissioner, was called to this matter after the adoption of the Code of 1910; that he then submitted it to the Attorney General and the Attorney General ruled that the amount of $25,000.00 was erroneously stated in the Code of 1910 and that the Act of 1899 reducing the amount of the deposit to $10,000.00 was still of force and effect. You further state that you have been unable to locate this opinion.
It is the general rule, often stated by the Supreme Court of Georgia, that the adoption of a Code enacts into one statute all of the provisions of law embraced in the Code. Such was declared by the Supreme Court to have been the intention of the Adopting Act of 1895, as applied to the Code of 1895. Central of Georgia Railway Co. v. State of Georgia, 104 Ga. 831(2), 837; Kennedy v. Meara, 127 Ga. 68(1); Barnes v. Carter, 120 Ga. 895; Emory v. Grand Daughters of Odd Fellows, 140 Ga. 423(3).
In the case of Friedman v. Mizell, 164 Ga. 1, 6, the Supreme Court had under consideration an Act of the General Assembly of 1881, which had been repealed by implication by a later Act of 1894. The Act of 1881, however, had been carried forward into the Code of 1895, an adopted Code, and again in the Code of 1910, likewise an adopted Code. It was held that even though the subsequent Act of 1894 operated to repeal the Act of 1881 by the inclusion of the Act of 1881 in the Code of 1895, it "was revivified and again made the law."
There is another rule of law stated by the Supreme Court in the case of Bailey v. McAlpin, 122 Ga. 616, that an error in the codification of a statute which may be attributed to oversight, accident or mistake rather than to a deliberate intention to which the law as laid down in the statute will not be construed to operate to work a revision of the statute.
I have given consideration to the case last cited and to other decisions hereinabove referred to. I have also given consideration to the physical facts which appear from an examination of the Civil Code of 1910. In my opinion, the action of the Code Commission of 1910 in fixing the amount of the deposit required to be made by such insurance companies at $25,000.00 and the action of the General Assembly in adopting the Code thus fixing the amount cannot be attributed to oversight, accident or mistake, and it cannot be presumed that in thus working a change in the Act of 1899, the law-

858
making body overlooked the provisipns of that Act. An examination of the Act of 1899 and a comparison of that Act with the Code of 1910 will disclose that all of the provisions of the Act of 1899 except the one reducing the amount of the deposit were carried forward into the Code of 1910. For example, the Act of 1899 in addition to amending Section 2035 of the Code of 1895 also amended Section 2045 of the Code of 1895 by adding at the end thereof the following words:
"The insurance commissioner shall suspend the license issued to said company and require the company to cease to do new business within this State, and give notice to said company to make good its whole capital stock within 90 days; and if this is not done, he shall revoke the license of such company and debar the same from doing business in this State." This language which was placed in the insurance law by the Act of 1899 is found in Section 2434 of the Civil Code of 1910. (Sec. 56-832, Code of 1933).
The Act of 1899 also amended Section 2048 of the Code of 1895 by striking therefrom all after the word "business" in the fifth line thereof and substituting for the stricken language certain language set forth by the Act of 1899. Section 2048 of the Code of 1895 as thus amended by the Act of 1899 is found in Civil Code of 1910 at Section 2437 (Sec. 56-413, Code of 1933).
From what is stated above, it is my opinion that the General Assembly, in adopting the Code of 1910 did not cause the provision fixing the amount of the deposit at $25,000.00 to be embodied therein by any oversight, accident or mistake, but that it did so by reason of a deliberate intent to change the law so as to so provide. I am, therefore, of the opinion that the amount of the deposit now required to be made by fire, marine and inland insurance companies is $25,000.00, and that this provision has been in effect since the adoption of the Code of 1910.
INSURANCE-New York Mortgage Clause and the Co-Insurance Clause in general use by fire insurance companies throughout the country not prohibited by Georgia laws
April 80, 1934
Hon. Lewis A. Irons Deputy Insurance Commissioner
Dear lV[r. Irons: I am in receipt of your letter of April 25th inclosing correspondence
between yourself and the President of the Southern Mutual Insurance Company of Athens, Georgia, on the subjects of the New York Mortgage Clause and the Co-Insurance Clause which you state are in general use by fire insurance companies throughout the country. You also inclose the Georgia Standard Form Policy approved by the Department of Insurance.

854
You desire an opinion as to whether or not the use of either or both of the clauses referred to without the specific approval of the Department of Insurance is a violation of the Standard Policy Form provision of the Georgia Code.
In Mr. Griffith's letter he refers to the Dodson Act of 1895, now embodied in Section 2545 of the Civil Code of 1910 (Sec. 56-502, Code of 1933), and expresses the opinion that the Co-Insurance Clause is in violation of this Act. This specific question was decided contrary to the opinion expressed by Mr. Griffith by the Supreme Court of Georgia in Firemen's Fund Insurance Co. v. Pekor, 106 Ga. 1(2).
There is no provision of the Georgia statute prescribing the form of a contract of fire insurance. It is provided by Section 2470 of the Civil Code (Sec. 56-801, Code of 1933) that such contracts must be in writing, and by Section 2471 (Sec. 56-811, Code of 1933) in substance that policies of fire insurance must set forth the entire contract between the parties. There are certain statutory provisions fixing the rights and duties of the respective contracting parties.
The Act of 1912 as amended by the Act of 1921, now contained in Section 2471 (1) of Michie's Code of 1926, in substance provides that:
"Each and every fire insurance company doing business in this State shall adopt and write a standard or uniform policy, such as may be prescribed by the Commission, . . . . and it shall be unlawful to issue any other class of policy in this State." Under this provision of the statute, it is my opinion that the issuance of policies containing the so-called New York Mortgagee Clause or the so-called Co-Insurance Clause, without the approval of the Insurance Commissioner is illegal and that companies issuing such policies are doing so in violation of the insurance laws unless such policies are issued in comformity with the regulations of the Insurance Department. I do not mean to express the opinion that policies thus issued are unenforceable, or that either the Co-Insurance Clause or the New York Mortgagee Clause as contained in a policy actually issued would be unenforceable. I express no opinion as to the propriety of the approval or disapproval by the Insurance Commissioner of either of these clauses. These are matters for you to pass upon. I do not think either of them is prohibited by any provision of the Georgia statute.
INSURANCE-Burial insurance May 25, 1934
Hon. Charles H. Garrett, Solicitor General Macon Judicial Circuit Macon, Georgia My dear Mr. Garrett:
Re: Burial Insurance This acknowledges receipt of your letter of May 18th with reference to burial insurance, and in which you inclosed a copy of what is called "Legal Reserve Cash and Funeral Policy" issued by Liberty National Life Insurance Company of Birmingham, Alabama.

855
I note from your letter that the insurance company is selling these policies, which provide for settlement of the loss upon the death of the insured by the furnishing of a casket and funeral of the retail value of $200.00 at the wholesale cash price of $150.00.
There also is a provision for a cash payment, which in the present policy is $90.00, and which is payable if the casket and funeral offered by the mortician is not accepted by the beneficiary, or if for any other reason the mortician fails to furnish the casket and funeral referred to in this policy, etc. The above being provided in "Cash Settlement" at top of the second column on the first page of the policy.
By Code Section 2496 (Michie's Code) (Sec. 56-901, Code of 1933) life insurance is defined as follows:
"An insurance upon life is a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of money if another dies within the time limited by the policy. The life may be that of the assured, or of another in whose continuance the assured has an interest." From the above Code Section, it appears that a life insurance contract is one in which the insurer agrees to pay the beneficiary upon the death of the insured "a certain amount of money." I know of no provision of the law, which permits a life insurance company doing a life insurance business in Georgia to pay its losses in merchandise or other service. Such would not be life insurance under the Georgia law. I therefore am of the opinion that the Liberty National Life Insurance Company, if it is licensed to do life insurance business in Georgia, has no authority to contract to pay its losses with merchandise and services to be rendered by it or another, but only has the right to contract for the payment of such loss in money. The above answers the first question found in the second paragraph of page two of your letter. You also ask: "Whether the undertaker can furnish agents for the insurance company to solicit insurance and collect premiums, without expense to the insurance company."
No person can serve as an insurance agent in Georgia without first obtaining a license as an insurance agent from the Insurance Commissioner. See Civil Code 2514 (5):
"If any person acts as agent or solicitor for an insurance company without having first procured a license therefor from the Insurance Department of this State, he shall be guilty of a misdemeanor." See Penal Code Section 627 (5) (Section 56-9911, Code of 1933). The Act of 1933 as found in Georgia Laws 1933, p. 186, prohibits a life insurance company from contracting for or receiving any compensation or gratuity directly or indirectly on account of employment of any undertaker in connection with a burial or preparation for burial of any person whose life is insured by said company. This would prevent an undertaker from furnishing free agents to solicit business for an insurance company as this would be a direct gratuity received by the insurance company from the undertaker.

866
This Act of 1988 has not yet been construed by our courts, hut since its constitutionality is presumed until held otherwise and it seems to prohibit such a practice as mentioned ih your question, it is my opinion that such free furnishing of agents by an undertaker to an insurance company would make the undertaker guilty of a misdemeanor.
You also ask: "Whether the insurance company and the undertaker can legally put a cash value on the policy of insurance less than the wholesale price of the funeral service"
I think this question is answered in the first part of my opinion, in which it is stated that the life insurance company can write insurance contracts agreeing to pay a "certain amount of money," there being no provision of the law which would allow a life insurance company to pay its losses in merchandise or services.
The specimen copy of the policy, which you forwarded me, is returned herewith.
INSURANCE-Amount of deposit of casualty company
September 18, 1934 Hon. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
I have your letter of September 17th requesting my opinion as to whether or not the Insurance Commissioner of Georgia is authorized to require, as a condition precedent to doing business in Georgia, that an insurance company issuing contracts of indemnity on account of automobile liability only, shall meet the requirements of Section 2426 of the Civil Code which provides in substance that all life and accident insurance companies chartered by other states shall show by a certificate from the officer having supervision of the Insurance Department in the State in which they are chartered that they have deposited not less than $100,000 in such securities as may be deemed to be equivalent to cash, subject to the order of such Insurance Department official, as a guarantee fund for the security of policy holders.
While I am of the opinion that a company which is doing strictly an automobile liability business is neither a life insurance company nor an accident insurance company within the meaning of Section 2426 of the Code, I am further of the opinion that under the Act of 1912 the Insurance Commissioner of this State is authorized to refuse a license to a company which does not, in his opinion, provide adequate security for the protection of its policy holders, and in determining this question that he is authorized to consider the requirements of Section 2426 of the Code.
The purpose and intent of the statute regulating insurance companies was to protect the public. The Act of 1912 not only authorizes the Insurance Commissioner to examine into any insurance company doing any sort of insurance business in this State, at any time, but it also authorizes him to prescribe such ll.dditioQal reason-

857
able rules and regulations as he may deem proper for the control and government of all such insurance companies. This statute seems to me clearly to empower the Insurance Commissioner to withhold his license from companies which do not in his opinion adequately provide for the protection of policy holders.
I am informed that this has been the uniform construction of the Act of 1912 and that since its passage the Commissioner has re~ quired all casualty companies to meet the requirements of Section 2426 (Sec. 56-316, Code of 1933) and that they have done so without question.
TAXATION-Certain certificates issued by Equitable Life Insurance Society subject to ad valorem taxation
October 2, 1984
Hon. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
I have your letter of the 27th inclosing communication from Mr. J. C. Little, one of the tax assessors of the City of Atlanta, with a letter directed to him by Mr. V. L. Hinshaw of the Equitable Life Insurance Society. Your letter requests my opinion as to whether or not certain certificates issued by this company are subject to ad valorem taxation.
According to the information contained in the letters sent you, these contracts are in the nature of a single premium matured endowment policy, guaranteeing a certain rate of interest and payable in full on demand or subject to distribution at death in accordance with special options which may be exercised by the holder.
A contract of life insurance is one whereby the company, in return for a stipulated premium, agrees to pay a sum certain upon the death of the assured to the designated beneficiaries. (Civil Code Section 2496, Code of 1910; Section 56-901, Code of 1933).
The contract described in your letter does not partake in any way of the nature of a contract of life insurance. This is true for the reason that the amount to be paid is not contingent upon death and the contracts issued without regard to the physical condition of the assured. Such a contract evidences nothing more than a loan of money to the insurance company by the other contracting parties, and in the hands of the owner is merely a chose in action which is subject to taxation as any other evidence of debt.

358

INSURANCE-Validity of published notice of insurance company of its intention to withdraw from this State.

Hon. William B. Harrison

December h, 1934

Insurance Commissioner

Dear Mr. Harrison:

Referring to your request for my opinion with reference to the

validity of the published notice of the American Automobile Insur-

ance Company of its intention to withdraw from this State, I beg to

advise as follows:

It is my understanding that this company under the provisions of

Section 2425 of the Code of 1910 (Section 56-324, Code of 1933) has

given notice to the public, which is now being published in a news-

paper as required by that section, that on a specified date it will apply

for leave to withdraw from the State Treasurer the bonds deposited

by it as a guarantee fund for the protection of Georgia policy holders.

The advertisement states that on the specified day application will

be made to "Hon. L. A. Irons, Insurance Commissioner of the State

of Georgia." You desire to know whether this notice is sufficient

in view of the fact that Hon. L. A. Irons is not Insurance Commis-

sioner of the State of Georgia but is Deputy Insurance Commissioner

of the State of Georgia and you are Insurance Commissioner of the

State.

Section 2425 of the Civil Code provides in substance that when

any company which has made the deposit required by law and which

has existing policies on property of citizens of this State on which no

losses have accrued, wishes to withdraw its deposit, it shall, before

being allowed so to do, take up and satisfy such policies, and "give

notice of its intention to withdraw from the State, and of the fact

that it has satisfied all losses and the claims of all policy holders

above designated, which notice shall be published once a week for

two months in a newspaper to be designated by the Insurance Com-

missioner of the State, and at the expense of said company."

The stated purpose of the Code Section just referred to is to re-

quire such insurance companies to take up and satisfy outstanding

policies, and give notice of its intention to withdraw from the State

by publishing such notice for two months. It seems clear to me that

the notice which the American Automobile Insurance Company is

now publishing thus meets the requirements of the section since the

section does not contemplate publication of anything more than

notice of the intention of the company to withdraw from this State.

Furthermore, the official to whom such company must necessarily

apply for leave to withdraw its deposit is the Insurance Commis-

sioner, and the fact that the Insurance Commissioner is by this

notice erroneously designated as "Hon. L. A. Irons" does not operate

to designate the official to whom the application will be submitted as

any other than the Insurance Commissioner of the State of Georgia.

While it would perhaps be better to correct this error in future

publications of this notice, I am of the opinion that the notice as

published does meet the requirements of the statute, in this respect,

859
and that it is not necessary to republish the corrected notice for the issues of the newspaper in which the erroneous notices have already been published.
As a matter of fact I seriously doubt if the publication of this notice is at all necessary in a case where an insurance company withdrawing from the State follows the procedure required by the Amendatory Act of 1913 and reinsures its outstanding liabilities. It is my understanding that this particular company is reinsuring its liabilities, but I do not understand that the matter you submitted to me involves this question.
INSURANCE-Certain rules of Southeastern Underwriters Association unauthorized
December 20, 1934 Hon. Lewis A. Irons Deputy Insurance Commissioner Dear Mr. Irons:
I am in receipt of your letter of recent date inclosing copies of notices recently sent out by the Southeastern Underwriters Association of Atlanta, Georgia, in which you request my opinion as to whether or not the rules promulgated by the Southeastern Underwriters Association, as embodied in these notices, are violative of Section 2466 of the Georgia Code.
The rules referred to are as follows: "On and after January 1, 1985, no member of this Association
shall compensate its Local Agents who represent a Mutual Insurance Company whose domicile and principal office is outside of S. E. U. A. territory, on any other basis than as follows:
"Fire (including all other kinds of business written on fire policies) not exceeding . . . 15%
"Windstorm, cyclone and tornado, not exceeding . . . 15% "Said commission allowances will cover and include all agency expenses, such as postage, exchange, advertising, solicitors' fees, personal local license fees, rent, clerk hire, services in adjusting losses under policies issued by the Agent or Agency, local board expenses, and all other agency charges, excepting only maps, map corrections, advertising as required by law, and taxes." "No member of this Association may enter an agency representing any Mutual Company, or any Company paying dividends to policyholders, unless such Company is domiciled and has its principal office in the territory of the South-Eastern Underwriters Association; nor shall any member of this Association remain in an agency which shall hereafter take on the representation of any Mutual Company or Companies paying dividends to policyholders, unless such Mutual Company, along with Stock Companies members of the Association, shall be acquired through purchase of an agency, and then only if such Mutual Company is domiciled and has its principal office in the territory of the South-Eastern Underwriters Association."

860
It is my understanding that the Southeastern Underwriters Association is composed of substantially all of the insurance corporations, usually designated as "old line companies," which are engaged in writing fire insurance in this State, and that these companies enter into the Association under agreements by which they contract to observe the rules of the Association and to write insurance only at the rates promulgated by the Association. Accordingly, it should be assumed that the rules hereinabove quoted have been assented to by all of such companies and therefore, in purpose and effect, represent contracts or agreements to which all such companies are parties.
Section 2466 of the Civil Code of Georgia (Section 56-219, Code of 1933) provides in part as follows:
"It shall be unlawful for any insurance company, or companies, authorized to do business in this State, or the agent, or agents thereof, to make, maintain, or enter into any contract, agreement, pool, or other arrangement with any other insurance company, or companies, licensed to do business in this State, or the agent or agents thereof, for the purpose of, or that may have the tendency or effect of, preventing or lessening competition in the business of insurance transacted in this State. And when it shall be made to appear to the commissioner of insurance that any company, or companies, agent, or agents have entered into any such contract, agreement, pool, or other arrangement, such commissioner shall revoke the license issued to such company or companies, and the same shall not be reissued until the president or chief officer of such company or companies shall file an affidavit with said commissioner, stating that such contracts, agreements, pools, or other arrangements have been annulled and made void:"
It seems clear to me that the rules quoted above represent contracts or agreements to which all of the insurance companies holding membership in the Southeastern Underwriters Association are parties. It remains therefore to determine only whether such contracts and agreements were entered upon "for the purpose of, or that may have the tendency or effect of, preventing or lessening competition in the business of insurance transacted in this State."
The manifest purpose and intent of this section of the Code was to prevent combinations or agreements between insurance companies which would have the effect of lessening competition, and to foster and encourage competition between insurance companies, to the end that the public might secure insurance protection at the lowest obtainable rate. It is the declared public policy of this State that competition in all lines of business should be encouraged, and that contracts in restraint of trade, or tending to establish monopolies, should be discouraged and outlawed. See Civil Code 1910, Section 4253 (Section 20-504, Code of 1933); Brown v. Jacobs' Pharmacy Company, 115 Ga. 429. This was an established principle of the common law which has been carried forward into the statute law of many states and of the United States. It has thus been held that a combination or contract between manufacturers or producers and

361
dealers or between dealers, by which they bind themselves not to purchase goods from particular producers, or to buy only from parties to the combination, is unlawful at common law and violative of the Federal Anti-Trust Act where the direct effect is to interfere with interstate commerce. See Bailey v. Master Plumbers Association, 103 Tenn. 99; Eastern States Retail Lumber Dealers Association v. United States, 234 U.S. 600, 58 L. Ed. 1490. It has also been held that contracts for the sale of goods by which the manufacturer attempts to prohibit the vendee from purchasing goods of the same kind from any other manufacturer are invalid at common law and violative of the Federal Anti-Trust Act. Likewise that contracts for the sale of goods which attempt to obligate the purchaser not to sell the goods of a rival manufacturer are void under the Federal Anti-Trust Laws, where the effect of such contract is such as to substantially lessen competition or tend to create a monopoly. 41
c. J. 144, 145.
It is a matter of common knowledge that most, if not all, of the fire insurance policies written in this State are written by agents who work upon a commission basis, and many of whom represent numerous companies. It is also a matter of common knowledge that the so-called "old line" insurance companies, who are members of the Southeastern Underwriters Association, write policies of fire insurance only at the rates prescribed by the Association, and that they are all operating under mutual agreements entered upon among themselves to observe these rates and issue policies at no other rates.
It is manifestly to the interest of the public, and essential to competition between insurance companies, that all of the companies which can qualify to do business in this State be required to compete fully and fairly for the insurance business, and that they be represented by such agents as will be readily accessible to the public. The clear purpose of the rules hereinabove quoted is to prevent agents of "old line" companies from at the same time representing mutual companies, to the end that the competition between the "old line" companies and the mutual companies might be lessened by rendering it more difficult for the public to obtain insurance in mutual companies. It can hardly be said that such an agreement, if carried out, would not tend to lessen competition, because it is manifest that the discontinuance of the business of writing insurance for mutual companies, now being conducted by agents for "old line" companies, or vice versa, would take the insurance companies whose agencies were thus discontinued out of the particular field in which they are now operating. Such being the manifest purpose and intent of the agreement, and it being clear that such will be the tendency of the agreement, I am of the opinion that it is violative of the Code Section quoted above.
I realize that ordinarily a citizen may contract, or not contract, with whom he pleases. An insurance company may determine for itself that it will not employ agents of a particular type. It cannot, however, in my opinion, enter upon an agreement with other insur-

362
ance companies which will bind all of the parties to the contract not to employ agents of a particular type.
I am of the opinion that any agreement entered upon by insurance companies which obligates the contracting parties to observe a specified scale of rates, or which otherwise tends to lessen competition, is in violation of the Code Section quoted. You do not request my opinion as to the validity of the agreement under which, as I understand it, the Southeastern Underwriters Association is operated, and I make no ruling as to that. I do hold, however, that the particular agreements which are set forth by the rules quoted above are violative of the Code Section referred to above.
JUSTICES OF THE PEACE-Summary of laws relating to
January 30, 1933
Mr. B. R. Jarrell
Round Oak, Georgia Dear Sir:
Your letter of recent date has been referred to this Department by Governor Talmadge.
Section 115 of the Civil Code of 1910 (Section 34-2701, Code of 1933) provides for the holding of election for Justices of the Peace on the first Saturday in December, 1900, and every fourth year thereafter. Such an election has been held to be a general state election. Rose v. State, 107 Ga. 697, 703. Sections 119, 120 of the Civil Code, (Sections 34-2705, 34-2706, Code of 1933) provide for elections for constables to be held at the same place, and on the same day as elections for Justice of the Peace, except that elections for constables are held two years instead of every four years. The laws governing elections for Members of the General Assembly, wherever applicable, govern in the election of Justices of the Peace. Civil Code, 1910, Sec. 118 (Section 34-2704, Code of 1933).
Section 81, Paragraph 13, of the Civil Code of 1910, (Section 34-1201, Code of 1933) provides for the pay of managers and clerks at general elections. This section provides that the "county authorities . . . . shall fix and prescribe in each voting precinct, before the day on which the elections are held, such compensation as they deem reasonable for managers and clerks of election, and in case said county authorities fail to fix and prescribe such compensation, each manager shall receive two dollars, and each clerk, not exceeding three at a precinct, one dollar, to be paid by the county treasurer on order by county authorities; provided, this section shall not apply to municipal elections."
Section 81, quoted above, is, in the opinion of this Department, applicable to elections for Justices of the Peace and Constables. Under this section, the managers and clerks at the precinct referred to by you were entitled to receive, for holding the election for Justice of the Peace and Constable on December 3, 1932, such compensation as had been fixed by the county authorities previously to the

863
election. If none was fixed, each manager was entitled to receive $3.00, and each clerk was entitled to receive $1.00, provided there was not more than three clerks. Such amounts should be paid out of the county treasury on proper county warrants. In the opinion of this Department, however, such managers and clerks would not be entitled to charge for two elections because the election for constable was held in connection with the election for Justice of the Peace. In my opinion, the law contemplates that every fourth year these elections shall be held at the same time and place, by the same managers, and when so held shall be deemed one election.
You do not state in your letter whether the county authorities had, previously to the election referred to, fixed the compensation of the managers and clerks or not. If not, each manager would be entitled to $2.00 under the code section quoted above, to be paid by the county. I presume from your letter that there were no clerks at the precinct to which you refer.
BARBER8-Disabled veterans not exempt from regulatory fee required for registration of barbers
May 12, 1933 Hon. C. A. Morrison, Chairman State Board of Barber Examiners Dear Mr. Morrison:
Your letter of May 11th requesting a ruling as to whether or not disabled and indigent veterans are exempt from paying the regulation fee required for registration of barbers, is acknowledged.
Under Code Section 1888, Michie's Code of 1910, (Section 84-2011, Code of 1933) disabled or indigent veterans are exempt from the payment of peddler's license or specific occupation or business licenses. Such disabled veterans are not permitted to engage in the peddling of certain specific articles mentioned in said section and neither are they exempt from the payment of certain business licenses and occupation taxes specified in said section.
Under the provisions of the General Tax Act there are also certain occupation taxes from which disabled veterans are not exempt. The particular section of the Tax Act from which such disabled veterans are not exempt contained provisions to the effect that no person or persons shall be exempt from the payment of the license tax imposed by the particular paragraph.
Under the provision of Section 9 each person engaged in barbering within this State at the time of the approval of the Act and who had at that time practiced the occupation for a time of three years prior to the approval of the Act was given the right to file with the Secretary of the Board an affidavit setting forth the facts and paying to the Treasurer of the Board $5.00 as a registration fee for the certificate of registration, etc.
Under the provisions of Section 10 of said Act others who are not qualified under Section 19 may qualify and obtain a certificate of

registration by making application to the Board therefor. Such applicants are required to satisfy the board that they are free from infectious and contagious diseases and shall pay an examination fee of $15.00. After having filed the said application and the payment of said registration fee he is entitled to present himself at the next meeting of the Board for the examination. When the applicant passes said examination a certificate of registration is then issued entitling him to practice the profession of barbering.
By the provisions of Section 11 apprentices are permitted to register as such and pay to the Treasurer a registration fee of $3.00.
By the provisions of Section 4 the Board of Barber Examiners is given the right to adopt reasonable rules and regulations governing the sanitary requirements of barbershops, subject to the approval of the State Board of Health and any member of said board is permitted to enter and make a reasonable examination of any barbershop for the purpose of ascertaining the sanitary conditions thereof, subject to the provisions of said paragraph.
In the case of the State Board of Barber Examiners v. Blocker, 167 S. E. page 298, decided by the Supreme Court on December 15, 1932, it was held that beauticians, beauty culturists, and operators of beauty shops were barbers within the statutory definition making them subject to regulations governing barbering.
I think it is clear from the provisions of the Act itself that the fees imposed are required of the applicants as a registration fee and are not to be classified as taxes.
Disabled and indigent veterans are exempt from the payment of said taxes. It has been held by the Supreme Court of this State that "taxation" is the rule and "exemption" is the exception, and that therefore statutes exempting the payment of taxes would necessarily have to be strictly construed.
In my opinion, a strict construction of the statute which exempts disabled veterans from the payment of certain licenses and business or occupation taxes would not be extended by judicial construction, to apply to disabled veterans who engage in the business of barbering so as to exempt them from the payment of the registration fee imposed by the Act.
In my opinion this fee is a regulatory one and intended for the protection and benefit of the public generally. I am also of the opinion that it was not the purpose of the Legislature in imposing the registration fee referred to to intend that the Act which imposed such registration fee should be a revenue raising measure. The registration fee is imposed primarily for the purpose of defraying the expenses of regulating the business of barbering for the benefit of the public. That such regulation on the part of the Legislature falls within the proper exercise of the police power of the State and results in benefit to the public generally. These regulations have as their purpose the insuring of the proper sanitary conditions in barber shops and the prevention of spreading disease in the State of Georgia. This purpose was expressed by the caption of the Act.

865
It was held in the case of Campbell v. City of Thomasville, 6th Ga. Apps. 212, that indigent confederate veterans, although they were exempt from the payment of municipal license fees imposed upon the businesses conducted by them, were not exempt from the operation of such reasonable regulations as the municipality may impose upon those engaging in such business.
The writer agrees with the sentiment expressed by Justice Powell in the above case as is found on Page 287 as follows:
"The writer, and, indeed, all the judges of this court, have the highest love and veneration for those veterans who served the State so unselfishly in perilous days gone by, and we have no desire to take away from them any exemptions or to limit any privilege extended to them by the laws of the State, but with all our love for them we must recognize that they are nevertheless subject to the laws and regulations enacted and adopted to preserve the health, peace, good order and safety of the State and the various communities thereof." Therefore, regardless of my feelings toward the heroes of 1917, who may now be disabled by virtue of their period of service, I am compelled to hold that they are subject to the regulations enacted and adopted to preserve the health, peace, good order and safety of the State and various communities thereof, and therefore, under my construction of the law, they are not exempt from the payment of the regulations or registration fee required of those who engage in the business of barbering.
BARBERING-Construction of Act regulating the practice of barbering in this State
May 29, 1988
Hon. C. A. Morrison, Chairman State Board of Barber Examiners Dear Mr. Morrison:
Your letter of May 26th requesting this Department to construe certain paragraphs of Sections Two and Four of the Act of the . General Assembly of 1914 as amended by the Act of 1931, regulating the practice of barbering in this State, is acknowledged.
The words "dyeing the hair of any living person for hire or pay" as found in Section 2 is simply a continuation of the definition of a barber.
In my opinion the definition given by Section 2 is not an exclusive one but simply undertakes to state the kind of work generally engaged in by those who come within the meaning of the term "barber."
In the case of State Board of Barber Examiners v. Blocker, decided by the Supreme Court last December and reported in 167 S. E. page 298, the Supreme Court in construing this section of the Act as amended, said:
"It seems to us that the new definition given to the word 'barber' and 'barbering' was to throw around patrons of not only barber

866
shops proper, but to give the same protection and sanitary insurance to customers of beauty shops. It is a matter of common knowledge that hair dressers not only cut hair but massage the face and scalp, apply creams and lotions, and dye the hair, and use all manner of applications to the face, head and upper part of the body, both by hand and mechanical appliances, and the danger of infection or injury is as great in the case of beauty shop operators as of the usual and ordinary barbershop." In the above case the Court discussed the title to the Act to regulate barbering and said that it was the clear and expressed purpose and intent of the Legislature in passing the Act, and as expressed in the title, to protect the public and to insure the proper sanitary conditions in barbershops, to prevent the spreading of disease and to insure the safety of the public who might patronize such shops. On this point the court said: "The Legislature no doubt thought that a barber infected with a contagious disease, whether male or female, whether in barbershops or hotels or private residences, would spread disease and contagion, although they operated under the name of beautician, or some other name, but that is no reason why they should not be regulated, and why the Legislature, under the police power which it possesses, might not pass legislation for the good of the public in preventing the spread of disease . . . . So we conclude that it is not in the name that brings the plaintiff within the scope of the legislation enacted but the nature of the work in which they are engaged." The mere fact that a person engages in those acts enumerated in the definition of barbering makes it necessary that they operate under the rules and regulations of the State Board of Barber Examiners under licenses after registration. To hold otherwise would have the effect of nullifying what I conceive to be the real purpose and intent of the Legislature. A person might as easily spread contagious diseases and endanger the health of the public by engaging in those acts without pay in the same manner and to the same extent as where the work is charged for. The mere fact that one who is thus engaged might state that it was not her purpose or intention to charge for such services, would not, in my opinion, be sufficient to justify her in engaging in this .kind of work without qualifying as required by the Act.
In the second paragraph of your letter you ask whether or not you are authorized under Section 4 of the Act to make cases against proprietors of barbershops violating the sanitary requirements, and especially with respect to tools, appliances and furnishings kept in an unsanitary and unclean condition so as to endanger health.
The express provision of the Act, on this point is that such violalators shall be subject to prosecution and punishment therefor. Where you have a right to make an examination of the tools and appliances of barbershops and where after such examination you find that they are kept in an unclean and unsanitary condition and in violation of the Act, in my opinion it would be your duty to institute

367
prosecution against such offenders as provided by the terms and provisions of the Act.
By the provisions of Section 476 (2) of the Penal Code (Section 84-9901, Code of 1933) persons who violate the provisions of the Act requiring the registration, etc., of those who engage in the practice of barbering are guilty of a misdemeanor and shall be punished as specified in said section.
Where persons are engaged in the business of barbering and are doing the particular acts specified in the Act, then they should be required to come within the provisions of the law regulating the profession.

BARBERING-Inspection of shops must be made by member of the State Board of Barber Examiners

September 27, 1933

Dr. R. C. Coleman, Joint Secretary

State Board of Examiners

Dear Dr. Coleman:

I am just in receipt of your letter of the 26th requesting my opinion

as to whether or not the State Board of Barber Examiners has

authority to employ additional inspectors to examine and inspect

barber shops under the Act approved August 28, 1931.

Section 3 of the Act approved Aug:ust 28, 1931, provides in part

as follows:

"That there shall be established a board to be styled the State

Board of Barber Examiners . . . . which said board shall be

composed of three members which members shall have attained

the age of twenty-one years and had at least five years experience

in the practice of barbering."

The remainder of said paragraph provides for the terms of the ap-

pointments, for the giving of bonds with sureties approved by the

Secretary of State, to be conditioned for the faithful performance

of their duties and that the member shall be considered a public

officer and shall take the oath required of all such public officers.

Section 4 of the Act provides in part as follows:

"Any member of said board shall have power to enter and make

reasonable examination of any barber shop in cities in excess of

five thousand inhabitants in this State during business hours for

the purpose of ascertaining the sanitary conditions thereof."

Section 5 of said Act fixes the compensation of the members of the

Board, which compensation shall be paid out of any money in the

hands of the treasurer of said Board after it has been approved,

upon an itemized statement properly verified filed with the Secre-

tary of State.

.

The other provisions of the Act are not germane to the question

propounded.

The Attorney General can not make law. He can only construe

the law after it has been passed by the General Assembly and ap-

368
proved by the Governor, whether he personally approves the wisdom of the law and the terms and conditions thereof or not.
The Act clearly states that there shall be a Board of Barber Examiners composed of three members, each of whom shall give a bond conditioned for the faithful performance of his duties, that each member shall be a public officer and shall take the oath required of such. The Act further provides that any "member" of said board shall have power to enter and make reasonable examination of any barber shop, etc.
It will be seen from the above that members of the Board are public officers and before qualifying must give bond and take an oath. It will be further seen that under the terms of the Act that any member of the Board shall have power to enter and make reasonable examination of any barber shops in cities in excess of five thousand population during business hours. It will thus be seen that the Act is very clear to the effect that the members of the Board are public officers and that the members are required to make examinations. The Board is without authority under the law to appoint additional inspectors and under the terms of the Act, whether we approve it or not, inspections can be legally made only by a member of the Board who is a public officer.
CHIROPODIST AND CHIROPRACTIC-What constitutes such practice
October 31, 1933 Hon. G. T. Dowling, Chairman State Board of Chiropody Examiners 803-5 Norris Building Atlanta, Georgia My dear Mr. Dowling:
Yours of the ~6th instant has been received. You inclose two advertisements, one clipped from the Rome paper and being an advertisement relative to a demonstration to be given on Friday and Saturday, October 6th and 7th, at the Higgins Shoe Store in Rome. "By special arrangement with Dr. William W. Scholl, World noted foot authority, an expert of his Chicago staff will be at our store on the above date, for the most important demonstration of foot comfort ever held in this city." This advertisement, which is similar in its wording to the other one inclosed relative to the demonstration to be held in Atlanta by the same parties at the Foot Health Shop, 110 Peachtree Arcade, contains the following expressions: "To you, it presents a most unusual opportunity. You will see all the newest of Dr. Scholl's Appliances and Remedies for relieving foot troubles of every kind and degree. You will have the benefit of the knowledge and experience of a highly trained expert in analyzinf! foot and shoe troubles. You will learn the exact condition of your feet; what causes them to hurt, and how you

369
can be relieved with ease and certainty. This relief will be actually demonstrated on your own feet. All this WITHOUT COST OR OBLIGATION! Remember the date and be sure to attend." You desire an opinion relative to the question of whether or not the giving of these purported demonstrations by the purported expert would amount to the practice of chiropody under the Chiropody Act of 1933. You state that no expert from Dr. Scholl's Chicago staff holds any license to practice chiropody in Georgia. It is rather difficult to give a very definite opinion upon this matter, due to the fact that I do not know exactly what acts the so-called "expert" from the Chicago staff of Dr. Scholl performs. The Chiropody Act as passed by the Legislature in 1933 defines Chiropody as follows: "Chiropody (podiatry), for the purpose of this Act, means the dia!fnosis, medical, surgical, mechanical, manipulative, and electrical treatment limited to the ailments of the human foot and leg. No chiropodist shall do any amputation or use any anesthetic other than local." Under this definition if the acts performed by the expert and termed in the advertisement as "analyzing foot and shoe troubles" can be construed to be the same as diagnosing foot troubles, then I feel that said expert must obtain a license under the Chiropody Act before he can legally carry on such pursuits. It would seem that this expert does give a diagnosis of a person's foot ills in these demonstrations, construing all of the various words and sentences of the advertisement in a most common sense manner. You direct my attention to Section 11 of the Chiropody Act of 1933 and desire to know whether I think that by the use of such words and language in this advertisement, the general public has been induced to believe the so-called expert is practicing chiropody and is a chiropodist. This is a question of fact and personally I am not misled after reading this advertisement. If I went to the store in response to this advertisement, I would expect to find not a chiropodist but some fellow who had had some experience with the feet and was mainly interested in selling the products manufactured by Dr. Scholl. I would regard him more as a high pressure salesman than a professional man known as a chiropodist. Under Section 11 the Act provides that it
"Shall not apply to any legally licensed medical doctor and furthermore provided that this Act shall not prohibit the fitting, recommending, or the sale of corrective shoes, arch supporters or similar mechanical appliances by retail dealers or manufacturers, provided, however, that such dealers or manufacturers shall not be entitled to practice chiropody as in this Act defined unless duly licensed to do so as hereinbefore provided."
As stated above, I am not fully informed of just what Acts the so-called expert performs, however, it is my opinion from reading the advertisements that he is chiefly interested in demonstrating the appliances which have been perfected by Dr. Scholl and which are sold in the various stores in which he demonstrates. The expert

870
does not charge a fee and gets no profit, as I understand it, from his action, other than perhaps a salary from Dr. Scholl. The Act gives him the right to fit, recommend, or sell corrective shoes, arch supporters, or similar mechanical appliances. If he goes further than this, then he is practicing chiropody as prohibited under Section 11 and is guilty of a misdemeanor, if he has no license for the practice of chiropody.
I have been unable to find any decisions of our courts construing this statute but I find a case which is comewhat similar in its nature which was decided by the District Court of New Jersey and is contained in 156 Atl. 285. The facts of that case were as follows: Two professional women investigators employed by the State, did on several occasions enter the shoe store of the defendant, who appeared to be a reputable dealer of some twenty years standing in the City of New Brunswick, and complained of pains in the feet. The dealer suggested that they bathe their feet in hot water, use soap, balm and powders; he also had the witnesses remove their shoes and stand on a pedigraph (electrical machine) to take a picture of their feet. He finally sold them some nationally known proprietary preparations in the original packages, having printed thereon a written statement as to their uses, and the price printed thereon. Defendant also sold a pair of arch supporters. The dealer called their attention to the directions on the package. He did not hold himself out as a doctor of chiropody, nor did he cut any corns or callouses, nor did he make any charges, other than the printed price for the socalled remedies. The court held that the defendant was not guilty of practicing chiropody without a license. It is true that the statute in New Jersey did not define definitely the practice of chiropody and this is one of the reasons which the court gave in deciding that the defendant was not guilty. However, since the statute in Georgia provides that one may fit, recommend, or sell corrective shoes, arch supporters, or other mechanical appliances, and since it is my opinion from the facts given in the advertisements and in your letter that this so-called expert did no more than the shoe dealer did in New Jersey, the said expert is not guilty of practicing chiropody without a license.
I can find only one other decision relative to a definition of the word "chiropody" as construed by the courts of our land. In the case of State v. Armstrong, 38 Idaho 493, chiropody was defined as
"The art of removing corns and callouses."
Since the so-called expert did not advertise himself as being able to remove corns and callouses and I have no information that he attempted any operations of this nature, or in fact of any other nature, upon the people who came to either of these stores in response to the advertisement in the papers, then I feel that he is not guilty of practicing chiropody without a license, unless as stated in the early part of this opinion, his actions in analyzing the foot troubles of the people who called in response to the advertisement amount to a diagnosis of their foot ills.

371
You desire a further opmwn relative to the rights of a person licensed to practice the chiropractic art to treat a person by manipulations of the feet, etc. In the chiropractic act as contained in Michie's Code of 1926, Section 1741 (1) the term "chiropractic" is defined as
"Adjustment of the articulation of the human body, including ilium, sacrum and coccyx, and electricity in the use of x-ray photograph, but the x-ray shall not be used for therapeutical means." Thus, from a reading of this definition it is seen that a chiropractic has the right to make adjustments of the articulate, or jointed portions of the body, which as I construe it, would include the feet and legs of a person. I do not feel that a licensed chiropractic could be restricted to other portions of the body than the feet and legs. I do not feel that a chiropractic is prohibited from making treatments on the feet and legs of a patient, when such treatment is necessary to the best interests of his patient in the pursuit of his art as a chiropractic. Trusting that this opinion answers the questions in your mind, and assuring you that if you will submit to me more definite facts, I shall be glad to furnish you with a more definite opinion, I am
NURSING-Construction of Act licensing nurses
November 23, 1933
Dr. R. C. Coleman Joint Secretary State Examining Boards My dear Dr. Coleman:
In response to your oral request for the authority of the Board of Examiners of Nurses for Georgia to employ a supervisor of nurses to assist in carrying out the rules and regulations adopted by the Board and to give advice and encouragement to nurses training schools in preparing applicants for registration, beg to advise as follows:
Section 13 of the Act establishing a Board of Examiners of Nurses is very explicit and clear as to the authority of the Board and the material part of that section being as follows:
"Be it further enacted that one or more persons be employed by the Board to work under the direction of the Secretary, and to be paid out of funds accruing from application fees, to assist in carrying out the rules and regulations adopted by the said Board, and for giving advice and encouragement to nurses training schools in preparing applicants for registration. Duties and salaries shall be determined by the Board and shall be paid as other expenses are paid."
I am of the opinion that the Board of Examiners of Nurses of Georgia has the authority, under the section above quoted, to employ a competent. person to be paid out of funds accruing from the application fees to assist in carrying out the rules and regulations

872
adopted by the Board and to give advice and encouragement for nurses training schools in preparing applicants for registration.
It will be incumbent upon the Board to prescribe the duties and fix the salary and to determine the expenses to be paid.
NURSIN~Definition of a practical nurse
November 27, 1933
Dr. R. M. Harbin % Harbin Hospital Rome, Georgia
My dear Dr. Harbin: Yours of the 23rd instant received. Under the law I am the legal adviser of the Governor and State
House officials and am prohibited from giving private individuals official opinions. However, I am glad to give you my personal views on the same.
You desiremy construction of Section 16 of the law governing the practice of nursing in Georgia and ask the following question: "If a nurse is known to be a graduate or undergraduate but calls herself practical can she do so legally?"
To arrive at the true meaning of this section of the law, it must be construed in connection with the cognate sections of the entire law. Under the previous sections of this Act, a graduate nurse and her qualifications are clearly defined. Also an undergraduate nurse and her qualifications are clearly set out. Further the Act is explicit upon the question of registered nurses and licensed undergraduate nurses. The purpose of the Act seems to be to prevent a misrepresentation to the public by any person who holds herself out to the public of her true status as to training, experience and qualifications.
The law often defines a certain class of people or a certain class of crimes in general by first defining one class and placing all others in the class not specifically defined, such as, for instance, all crimes are declared to be misdemeanors which are not felonies. By analogy, this seems to be the only definition we have of a practical nurse under the Georgia law. That is, all nurses who are not graduate or undergraduate licensed nurses are classified as practical nurses. It is unreasonable to assume that a licensed graduate nurse or a licensed undergraduate nurse would hold herself out to the public as a practical nurse and thus assume inferior standing among her profession and consequently receive a smaller compensation for her work. The natural pride which she has in her training will prevent this.
It is therefore my interpretation of Section 16 of the Act referred to that all persons who are not undergraduate nurses or graduate nurses are practical nurses. An undergraduate nurse who is unlicensed could not go out and represent herself to the public as being an undergraduate nurse and practice her profession and receive compensation upon such a basis without violating the law. Neither

878
could a graduate nurse who was not licensed go out and practice the profession of nursing and charge for her services upon the basis of a graduate nurse and not violate the law. It seems to be the misrepresentation of her true status to the public that the law is aimed against.
The provisions of Section 16 of the Nursing Act which are pertinent to this question are as follows:
"The provisions of this Act shall not affect nurses known as practical nurses, not holding themselves out to be either graduate or undergraduate nurses, within the meaning of this Act." Graduate or undergraduate nurses within the meaning of this Act who are allowed to practice as such are only those nurses who have been licensed and registered in accordance with the Act, meeting all of the qualifications thereof. The phrase "known as practical nurses" must necessarily be interpreted as practical nurses known to the public as such and who represent themselves to be nurses of no greater experience, training or qualifications than the term "practical" implies in its ordinary signification. I do not find where the courts of any of our states have ever judicially defined the phrase "practical nurse". However, it is my interpretation of this phrase that such a person is one whose training has not been along special lines such as would ordinarily be received in a nurse's training school or hospital by one who has in her dealing with the sick gained such knowledge as would be of some assistance during a period of illness and enjoys a knowledge with reference to the administration of care to the sick which is greater than that possessed by the ordinary layman, such knowledge making her services more desirable than those of an ordinary novice. Let us take a concrete example in arriving at the true meaning of the Act. Suppose X, a graduate nurse, stands the examination as prescribed by the State Board and fails to merit a license from that Board. X goes to a certain sick room and represents herself to be a graduate nurse and receives compensation as such. Any acts done by her with respect to nursing the sick, after such a representation, are prohibited under the law. The same will be true as to an undergraduate nurse who was not licensed. It, therefore, seems a necessary corollary that a graduate or undergraduate nurse who desires to represent herself as such and receive compensation upon such a basis for the practice of her profession must be under the terms of the Act a licensed registered nurse. That is, an R.N. or an L. U.N. The expression "known as a practical nurse" must be construed as a person who is known and represented to the public as such.

874
REAL ESTATE BROKERS OR AGENTs-Veterans holding disability certificates not exempt from regulatory fees imposed by statute
January 19, 1984 Dr. R. C. Coleman Joint Secretary Examining Board Dear Dr. Coleman:
I have your request for an opinion as to whether or not disabled veterans who hold certificates from the Ordinary are entitled to do business as real estate brokers or agents without paying the fees prescribed by the statute.
In my opinion the fees required to be paid by the statutes regulating the business of real estate brokers or agents are regulatory fees and not license fees within the meaning of Section 1888 of the Civil Code which affords exemption from license taxes to certain veterans.
In the recent case of McKinney v. Patton, 176 Ga. 719, the Supreme Court held that disabled veterans holding certificates from the Ordinary are not exempted from the payment of the regulatory fees prescribed by the Acts of the General Assembly regulating the business of motor carriers for hire.
Under the decision just cited it is my opinion that disabled veterans holding certificates from the Ordinary are not exempted from the payment of the regulatory fees prescribed by the Acts regulating the business of real estate brokers and agents.
CHIROPODY-Construction of Act regulating the practice of chiropody
March 24, 1984 Hon. T. M. Linder Secretary Executive Department Dear Mr. Linder:
Replying to your verbal request for an opinion with reference to the Act approved March 24, 1988, regulating the practice of chiropody, I beg to advise as follows:
Section 8 of this Act regulates the licensing of persons desiring to practice this profession and provides in part as follows:
"Any person wishing to practice chiropody shall make written application to the Board of Chiropody Examiners, fifteen days prior to examinations, in such form as shall be determined by the board. Applicants for license shall have attained the age of twenty-one years, be of good moral character, be a graduate of a recognized college of chiropody. Any legally incorporated college of chiropody shall be accredited as being of good standing which requires, prior to matriculation, a four year high-school course or equivalent, and for graduation a course of studies of at least two years, covering twenty-six hundred scholastic hours or

875
over. Examinations shall be in the English language, written or oral, embracing the following subjects: Histology, dermatology, anatomy, physiology, chemistry, bacteriology, pathology diagnosis and treatment, materia medica and therapeutics, clinical chiropody, and such added subjects as shall subsequently be taught by accredited colleges of chiropody. Any chiropodist graduating from any accredited college of chiropody may be granted the privilege to practice until the following examination by his making application to the board and paying the fee. The minimum requirement for license shall be a general average of seventy-five per cent. of the subjects involved, and not less than fifty per cent. in any one subject." It will be noted that a graduate of any accredited college of chiropody may be granted the privilege of practicing until the next examination by making application to the board and paying the fee prescribed by the statute. It is my opinion that this provision does not authorize the board to grant a permanent license to the graduates of accredited colleges unless and until such graduate shall have taken the examination provided by the statute. It simply authorizes a temporary license which automatically expires when the next examination is held. It is further my opinion that the board is authorized to recognize only such colleges of chiropody as meet the requirements of Section 3, that is such colleges as require a four year high school course or the equivalent, as a prerequisite to matriculation, and require for graduation a course of study in the subjects prescribed by such school of at least two years and covering at least twenty-six hundred scholastic hours. I think the Act contemplates that the course of study of such colleges of chiropody shall embrace the subjects upon which the applicant must be examined. When an applicant has graduated from such an accredited college, the board in its discretion may authorize him to practice until the next regular examination, upon his paying the fee. He cannot practice any longer than until the next regular examination. When it is held he must take the examination and comply with the other provisions of Section 3. It is entirely within the discretion of the board as to whether any graduate will be permitted to practice before taking the examination, and the board will be authorized to consider, in determining this question, the course of study taken at the college, the grades made by the applicant and the standing of the college itself. You further requested a construction of Section 5 of this Act which provides in part as follows:
"All persons having been engaged in the practice of chiropody in Georgia one year or more, prior to and next preceding the approval of this Act shall file an application for license to continue the practice of chiropody, with the Board of Chiropody Examiners in the office of Secretary of State Boards, State Capitol, Atlanta, Georgia, within ninety days after the passage of this Act."

876
It is my opinion that this section applies only to chiropodists who have been regularly engaged in the practice of their profession in this State more than twelve months prior to March 24, 1933. By chiropodists engaged in the practice of their profession, I mean persons who have been practicing the profession as such, charging for their services, and paying the professional tax levied by Paragraph 3 of the General Tax Act of Georgia.
This section does not apply to a student or apprentice who has been engaged in doing chiropody under the direction and control of some other chiropodist while learning the profession and it would not apply to a chiropodist whose practice had not been confined to clinical work. As stated it applies only to chiropodists who have been regularly engaged in the practice of their profession as a profession.
ARCHITECTs-Construction of Act for examination and registration of architects
April 30, 1934
Mr. R. C. Coleman, Joint Secretary State Examining Boards Dear Sir:
Your letter of April 27th, in which you ask me to interpret Sections 15 and 16 of the Act for Examination and Registration of Architects, has been received.
In construing all of the Sections of this Act as a whole, it appears to be its purpose to prevent a person from acting under the title of an architect without first obtaining a certificate of registration from the State Board for the Examination and Registration of Architects.
The heading of the Act states it to be an Act "To make it unlawful for any person to use the title of architect in the State of Georgia without securing a certificate of his or her qualifications to engage in the practice of architecture under the title of 'architect'." Section 13 provides: "Any person, wishing to practice architecture in this State, etc., shall, before being entitled to be, or known as, an architect, secure from the said Board a certificate of qualifications to practice under the title of architect, as provided by this Act." Section 14 provides: "No person, etc., shall assume any title indicating that he or she is an architect, or any words, letters or figures to indicate that the person using them is an architect, unless he or she shall have qualified and obtained a -certificate of registration from said Board." Section 15 provides in part: "Nor shall anything contained in this Act prevent persons, mechanics or builders from making plans and specifications for, or super-

877
vising the erection, enlargement or alteration of buildings or any appurtenance thereto to be constructed by themselves or their employees, provided that the working drawings for such construction are signed by the authors thereof with their true appellation, as 'engineer', 'Contractor', or 'carpenter' or etc., without the use in any form of the title 'architect'." Section 16 states the elements constituting the practice of architecture, namely: ''The planning or supervision of the erection, enlargement or alteration of any building or buildings, or of any appurtenances thereto, or consultation as to planning of same to be constructed for others or by persons other than himself." In interpreting Section 15 along with the caption of the Act, it appears that a person can practice architecture as defined in Section 16 without securing a certificate from the State Board for the Examination and Registration of Architects as long as he does not use the title architect. In other words, the Act does not make it unlawful for a person to practice architecture without a certificate but makes it unlawful for any person to use the title of "architect" without first securing a certificate from the said State Board.
ARCHITECTs-Use of funds derived from Act regulating the examination and registration of architects
May 11, 1934 Dr. R. C. Coleman, Joint Secretary State Examining Boards Dear Dr. Coleman:
I have your request for an opinion as to whether or not the State Board for the Examination and Registration of Architects may legally expend funds received under the provisions of the Act regulating the examination and registration of architects for the purpose of paying a membership fee in the National Council of Architectural Registration Boards and the expenses of a member of the State Board in traveling to and from and attending a meeting of the National Council as a delegate from the State Board.
Section 7 of the Act creating the Board of Examination and Registration of Architects charges the board with the duty of enforcing the Act and authorizes the board to incur such expenses as shall be necessary, which expenses shall be paid out of the revenue arising out of the Act. Section 11 limits the compensation of the members of the board to $10.00 per day. Section 12 provides:
"That the members of the said board shall be reimbursed the amount of actual expenses incurred in travel to and return from meetings, and their expenditure for hotel bills, meals, stationery, postage, printing, ,typewriting, and the like necessary expenses incurred in the performance of their duties under this Act. Subject to the approval of the Treasurer of the State." There seems to be no provision of law which either requires or authorizes the State Board of Georgia to affiliate with State Boards

878
of other States. It is provided by Section 18 (b) that an architect may be permitted to practice his profession in this State upon registration or certification by another State where the qualifications prescribed by the other State are equal to those prescribed by this State. Of course, the ascertainment of the qualifications prescribed by other States is merely a matter of communication with the proper agency of such other States.
In view of the fact that the scope of the examination to be given applicants is to be fixed by the board within the limitations prescribed by the statute, in my opinion, the board would be authorized, in the event it should deem it necessary in the interest of uniformity so to do, to apply for membership in the National Council referred to and pay the membership fee out of funds arising under the Act.
Since, however, the expenses which a member of the board may incur are expressly limited by the provisions of Section 12 of the Act, I do not think the board would be authorized to disburse State funds to pay the expenses of a member attending a meeting of the National Council as a delegate from this State.
NURSING-Requirements for applicants for registration as graduate nurses
June 19, 1934
Hon. R. C. Coleman, Joint Secretary State Examining Boards Dear Mr. Coleman:
I have your request for an opinion construing Section 6 of the Act regulating the practice of nursing (Georgia Laws, 1927, p. 251), based upon the request of the firm of Gazan, Walsh & Bernstein of Savannah, the particular question to which you desire an answer being whether it is necessary to charter a school for nurses.
Section 6 of the Act makes two requirements for applicants for registration as graduate nurses. The first is that the applicant must be at least 21 years of age, of good moral character and a !fraduate of a re!fular chartered trainin!f school for nurses, connected with a general hospital or sanatorium, (in which medical, surgical, obstetrics and pediatric cases, and where men, women and children are treated), where three years of training with a systematic course of instruction on the above mentioned classes of cases is given in the hospital or other educational institution.
The second, or alternative, requirement of the statute provides: "Or (the applicant) must have graduated from the training school connected with a hospital of good standing, supplying a three years training corresponding to the above standard, which training may be obtained in two or more hospitals." (Parentheses ours). It will be noted that this later provision omits the requirement that the applicant must be a graduate of a re!fular chartered trainin!! school for nurses.

379
It is therefore my opinion that it is not necessary that the training school referred to in the latter part of the statute be chartered. A training school connected with a general hospital such as is described in the first part of Section 6 can graduate nurses without being chartered. However, a regular chartered training school for nurses cannot graduate nurses who would be entitled to registration as graduate nurses, unless such chartered training school for nurses is connected with a general hospital or sanatorium of the nature described in the statute.
BARBERING-Examining Board authorized to examine teachers to determine qualifications for teaching in barbering school or college
November 15, 1934 Hon. C. A. Morrison, Chairman State Board of Barber Examiners Dear Mr. Morrison:
Replying to your verbal request for an opinion as to whether or not the State Board of Barber Examiners is authorized to conduct an examination for teachers engaged in teaching in a barber school or barber college which has applied to the Board for a license to operate, I beg to advise as follows:
Section ll(a) of the Act of August 28, 1931, provides in part as follows:
"That said Board shall have the right to pass upon the qualifications, appointments, course of study, hours of study in said barber school or college." By reference to qualifications the Legislature manifestly meant the qualifications of the persons engaged in teaching in such school or college. I am of the opinion, therefore, that the State Board of Barber Examiners is authorized, if in its discretion the same be necessary, to conduct such examination for persons who desire to teach in barber schools or colleges, as will disclose their qualifications for such work.
OPTOMETRY-Department or jewelry store not registered can conduct an optical department under its name if it employs a registered optometrist
December 10, 1934 Dr. F. C. Wilson, President Georgia State Association of Optometrists Valdosta, Georgia Dear Dr. Wilson:
I have yours of the fifth instant asking whether under the optometry law a department store or jewelry store or any firm which is not registered can conduct an optical department under its name even though they may employ a registered optometrist.

380
Section one of the Act approved August 7, 1916, (Georgia Laws 1916, p. 83) defines the practice of optometry as follows:
"Optometry or the practice thereof is defined to be the employment of any means, other than the use of drugs, for the measurement of the powers of vision and the adaptation of lenses for the aid of same." By Section eight of this Act it is made unlawful for any person to practice or pretend to practice optometry unless he shall have first obtained a license from the State Board of Examiners and by Section four of an amendment to the optometry law as approved March !l4, 1933, (Georgia Laws 1933, pp. 202-204) it is further provided: "And such person who practices, offers or pretends to practice, or holds himself out as eligible to practice, and who is not legally registered and licensed, shall be guilty of a misdemeanor and shall be punished as for a misdemeanor for each day or fraction of day he practices in violation of this Act." I think that the purpose and spirit of this law was to protect the public health against unlicensed and inexperienced practitioners of optometry, and it occurs to me that a department store or jewelry store or any other firm which has an optical department with a registered optometrist in charge would not be violating the optometry law, as the public health would be protected. Of course, if such a firm employs a man who was not a licensed optometrist and such person measured the powers of vision and adapted lenses for the aid of same, such agent would be guilty of violating this law. The only way a firm or corporation could violate this law would be through its agents or the persons in the firm practicing illegally. Where such agents or members of the firm are licensed optometrists there would be no violation.
NAVAL STORES-Person buying and grading rosin should be duly appointed and qualify as an inspector.
April l!l, 1984 Mr. H. M. King Supervising Inspector of Naval Stores Savannah, Georgia Dear Mr. King:
Yours of the 12th instant, inclosing the letter of Mr. J. B. Stubbs of Douglas, Georgia, dated April 7th, in which he requests an opinion as to whether it is necessary for him to be licensed to inspect rosin which he buys and grades in Douglas and in adjoining counties, has been received.
Under Civil Code, Section 1839, (Sec. 5-1602, Code of 1933) it is provided:
"No person shall ship, or put on board any vessel for exportation from this State, any pitch, tar, rosin, or turpentine before the same is inspected and marked, provided there be at the port of exportation a sworn inspector of such articles, etc."

881
Under Civil Code, Section 1842, (Sec. 5-1605, Code of 1988) it is provided:
"The corporate authorities of any seaport town may make such further regulations for the inspection of rosin, pitch, tar, and turpentine, and for the discovery of fraud in making and vending said articles, as to said authorities respectively shall seem proper." Section 1848 (Sec. 5-1601, Code of 1938) provides:
"Inspectors may be appointed, their duties prescribed, their fees fixed, and inspection and marking regulations adopted, by the corporate authorities of any city, for the inspection of . . . . . . . pitch, tar, turpentine, rosin . . . . . and for measuring and gauging the said articles, or any of them, within the limits of said cities; and the same power may be exercised by the Ordinary of every county, outside the limits of such town, and within the limits of such county: Provided, such regulations be not inconsistent with the following provisions:
1. No person shall be permitted to inspect, measure or gauge, except such as may be regularly appointed, under a penalty of five hundred dollars for every offense . . . Every person so appointed shall be required to take an oath or affirmation faithfully to perform the duties of the office to the best of his skill and ability, and shall moreover give bond and security for the faithful discharge of the duties thereof."
It is, therefore, my opinion that a person inspecting naval stores should be duly appointed and qualified in accordance with these provisions of our law.
PENSIONS-Widow of Confederate veteran who remarried not entitled to pension after death of second husband
April 27, 1933
Hon. A. L. Henson Director, Veterans Service Office
Dear Mr. Henson: I am in receipt of your letter of April 24th requesting an opinion
as to whether or not a widow of a Confederate soldier who remarried subsequent to his death, and whose second husband is now dead, is entitled to receive a pension as the widow of her soldier husband, to whom she was married before January 1, 1881.
The Constitution of this State (Michie's Code of 1926, Section 6551 as amended in 1920; Section 2-4901, Code of 1933) authorizes the payment of pensions to widows of Confederate soldiers who were married prior to January 1, 1881. It is further provided by the Constitution that:
"No widow of a soldier killed during the war shall be deprived of her pension by reason of having subsequently remarried another veteran who is dead, unless she is receiving a pension on account of being the widow of such second husband."

882
The last quoted provisiOn became a part of the Constitution by the Resolution of 1908 which was ratified on October 7, 1908.
Pursuant to the Constitutional Amendment of 1908 the General Assembly in 1910 passed an enabling Act which provided by Section 8 as follows:
"Be it further enacted by the authority aforesaid, That when a soldier was killed or injured while in the service, and in line of duty as a soldier, or died as a result of such injury before the close of the war, leaving a widow who was his wife when injured or killed, who has since married and is now a widow, shall be paid the annual pension as provided by this Act, provided she is otherwise eligible under the provisions of this Act as are required of other widows of Confederate soldiers."
By an Act approved August 19, 1912, Section 8 of the Act of 1910 was further amended to read as follows:
"Be it further enacted by the authority aforesaid, That when a soldier was killed or injured while in the service and in line of duty as a soldier or died as the result of such injury before the close of the war or was honorably discharged, leaving a widow who was his wife when injured or killed or honorably discharged, who has since married, and is now a widow, shall be paid the annual pension as provided by this Act: Provided, she is otherwise eligible under the provisions of this Act as are required of other widows of Confederate soldiers."
As amended by the Act of 1912 Section 8 of the Act of 1910 now appears as Section 1482 (6) of Michie's Penal Code of 1926.
Section 1497 of the Penal Code of 1910 has apparently been superseded by the Constitutional Amendment of 1908.
In my opinion Section 8 of the Act of 1910 as amended applies only to widows of Confederate soldiers who were actually married to such Confederate soldiers before the discharge of such soldiers from the military service of the Confederate States. The Amendatory Act of 1912 properly construed entitles a widow who was the wife of a Confederate soldier at the time of his honorable discharge from the service to the same privileges as a widow who was the wife of a. Confederate soldier at the time he was killed or injured in the serviCe.
There is no express provision of the statute by which the widow of a Confederate soldier, who might otherwise be entitled to a pension, but who remarried after the death of her soldier husband, is entitled to apply for a pension after the death of her second husband as the widow of her soldier husband. On the contrary, the express provisions of the Constitution and of the statute which have been referred to and which relate only to those widows who were married to a soldier before his discharge from military service of the Confederate States would seem, by necessary inference, to exclude those widows who were not so married. Taking the view most favorable to the applicant the question must be determined on

883
application of the general principle of law and without any reference to any express provision of the statute.
A widow is defined as being "Wife that outlives her husband; one whose husband is dead
and who remains unmarried." 40 Cyc. 934. Under the definition stated when the applicant to which you refer married her second husband she ceased to be the widow of her first husband. The death of her second husband did not restore her to the status she formerly occupied as widow of her first husband. Upon the death of her second husband she again became a widow but she became the widow of her second husband and not the widow of the first husband. The general rule with reference to this question is stated in 48 C. J., p. 788, Section 10, as follows:
"Except where otherwise expressly provided by statute, the remarriage of a widow to another, after the death of, or divorce from, the husband, as the wife of whom she was entitled to a pension, terminates her right to the pension thereafter, although her second husband is dead, and although the second marriage was illegal when she did not repudiate it or when she procured its dissolution by divorce instead of having it annulled for illegality." Since there is no express provision of the Georgia law whereby the applicant to whom you refer is now entitled to claim a pension as the widow of her first husband, it is my opinion that under the general rule just stated she is not entitled so to do, and that her application must necessarily be denied.
PENSION-Funeral expenses of Confederate veteran
October 4, 1933
Hon. A. L. Henson, Director Veterans Service Office Dear :Mr. Henson:
I have your letter of September 28th, with reference to the payment of the funeral expenses of deceased Confederate veterans. Your letter sets forth the pertinent provisions of Section 1504 of the Penal Code of 1910 (Section 78-221, Code of 1933) as follows:
"Whenever a pension has accrued to any pensioner who dies before the payment of the same, the Pension Commissioner is authorized, and it shall be his duty, to pay the same over to the Ordinary of the county of such deceased pensioner . . . to be applied to funeral expenses and expenses of last illness as may be shown by a sworn statement of such." As you state in your letter,
"These payments are conditioned on twelve months residence within the State immediately preceding death; no surviving widow and no estate." You request an opinion as to whether or not you may now pay
"From current funds derived from cigar and cigarette tax to the Ordinaries of the several counties for the purposes contemplated

884
in Section 1504 of the Penal Code of 1910 a portion of the claims approved under that authority."
You state that you very much desire to pay on each approved claim $100.00 to represent a part payment, providing that sum is due to the pensioner and was unpaid at the time of death.
I note what you say with reference to the practice of the Department which has heretofore existed of paying $100.00 to the Ordinary to defray funeral expenses in each case, and that the forms and the "bookkeeping set-up" are arranged accordingly.
There is no provision of law for the payment of $100.00 for the funeral expenses of deceased veterans or any other amount except out of accrued payable pensions, and in my opinion, the practice to which you refer was and is unauthorized by law. Practice in violation of law does not make new law.
Section 1504 of the Penal Code simply provides that when a pensioner dies the Pension Commissioner shall pay his accrued pension to the Ordinary, just as he pays the pensions of living pensioners. If the deceased pensioner left no widow or dependent child or children, and if he left no estate of any kind, the Ordinary applies the pension to the payment of funeral expenses, attaching the sworn statement of the undertaker to his voucher in lieu of the receipt of the pensioner. If the amount of the pension is more than enough to pay the funeral expenses, the surplus must be refunded by the Ordinary to the State Treasurer. If the amount of the pension is less than enough to cover the funeral expenses, the Ordinary can pay on the funeral expenses only the amount of the accrued pension, and only out of funds legally available. It was not the intent and purpose of this Act to make the accrued pension a part of the estate of the deceased pensioner, and it was not the intent or purpose of the Act to make any specific amount available for funeral expenses. As stated, the payment made is not a payment of funeral expenses, but is a payment of pension, and is to be made only as and when living pensioners are paid. In other words, the Pension Commissioner sends the accrued pension of a deceased veteran to the Ordinary for funeral expenses just exactly like he would if the pensioner were still in life, and out of the same class of funds.
At the time of the passage of the Act now codified as Section 1504 of the Penal Code, pensions were payable in an annual lump sum. It was never contemplated that there should ever be any failure to pay these annual pensions as they accrued and Section 1504 at the time of its passage has reference only to the pension of a deceased veteran for the year in which he died. There is some doubt as to whether unpaid pensions for a year previous to that in which the veteran died fall within Section 1504 of the Code at all. In other words, there is considerable doubt as to whether the Pension Commissioner is now authorized to make any payment on account of 1930 pensions in a case where the veteran died after the end of the year 1930. However, this doubt might be resolved in favor of the veterans since the term "accrued pension" as used in Section 1504,

385
literally construed, is broad enough to cover unpaid pensions for years preceding that in which the veteran died.
It is my opinion, from what is stated above, that you are not now authorized to pay the sum of $100.00 per pensioner, or any other sum, out of the current receipts from the Cigar and Cigarette Tax, to be applied to the funeral expenses of veterans who died previous to January 1, 1933. When the pensions and funeral expenses for 1933 have been fully paid and there is a surplus which can be legally applied to the payment of unpaid pensions for 1930 and when and as you pay living pensioners for 1930, or any part thereof, you will be authorized to send the same amount to the Ordinary of each county as payment on the pensions of veterans who were in life during the year 1930, but who have since died, to be applied by the Ordinary in conformity with Section 1504 of the Penal Code. The Cigar and Cigarette Tax for each year is specifically allocated to the payment of pensions for that year. Accordingly, no part of the Cigar and Cigarette Tax collected during the year 1933 can be lawfully used to pay pensions for 1930, or any other year, or to pay to the Ordinary pensions which accrued during 1930 for the funeral expenses of deceased veterans under Section 1504 of the Penal Code, so long as any portion of the 1933 pensions remains unpaid.
It is further my opinion that under the Act of 1929 the pensions of Confederate Veterans do not accrue on the first day of January of each year, but that same accrue monthly, as provided by that Act, on the first day of each month. Under Section 4 of the Civil Code of 1910 (Section 102-102, Code of 1933), providing rules for the construction of all the statutory enactments in this State, the Ordinary signification is to be applied to all words used in statutes, except words of art and those relating to particular businesses or professions. The ordinary signification of the words "accrued pension" as used in Section 1504 of the Penal Code is pensions which have become due and payable at the time of the death of the pensioner.
Words and Phrases, Vol. 1, p. 193; Donelley v. United States, 17 Ct. Cl. 105-10; Ga. Words and Phrases, p. 10.
Prior to the passage of the Act of 1929 providing for the monthly payment of pensions, the entire annual pension of each Confederate veteran and widow accrued on the first day of January of each year, and was then due and payable. Under the Act of 1929 it is specifically provided that pensions shall be paid in equal monthly instalments of $30.00 on the first day of each month and that the total amount of the annual pension shall be $360.00. Accordingly, pensions no longer accrue annually, but they now accrue monthly.
In my opinion, you are authorized to pay to the Ordinaries of the various counties, for application under the provisions of Section 1504 of the Penal Code, only the monthly pensions of deceased pensioners which have accrued at the time of the death of the pensioner, and for the months for which you have paid or do then pay living pensioners. In other words, if a veteran should die in July, 1933, you would be authorized to pay his pension through the month of July, 1933, but only when and as you pay living pensioners for that month. If this

S86
veteran had an accrued pension for the year 1930, you are not authorized to send that pension to the Ordinary of his county for disbursement under Section 1504 of the Penal Code until you can make payment in regular order to all living pensioners for the year 1930. When you do make such payments for the year 1930, you will be authorized to make requisition for funds to pay to the Ordinaries, for disbursement under Section 1504 in the same amount to apply on the pensions of deceased pensioners as is then being paid to living pensioners, and no more; each individual requisition should set forth the date of the death of the pensioner on account of whose accrued pension requisition is being made, and should cover only the months and the year during which the pensioner was in life, and for which payment is then being made to living pensioners for that period.
In dealing with Section 1504 of the Penal Code, it should always be borne in mind that it was not the purpose or intent of the General Assembly to grant any amount for the payment of funeral expenses, but simply to provide for the application of the accrued pension of deceased pensioners to that purpose.
PRISON COMMISSION-Definition of felony convict
October 30, 1933 Mr. G. A. Johns, Vice-Chairman Prison Commission of Georgia State Capitol Atlanta, Georgia Dear Mr. Johns:
Yours of the 27th instant has been received. You desire an interpretation of Code Section 1074 of the Penal Code of our State (Sec. 27-2602, Code of 1933) with reference to the question of what constitutes a capital offense, or more specifically, whether a person convicted of murder but sentenced to life imprisonment has been convicted of a capital felony. I feel that your question is fully answered by the case of Caeser v. The State, 127 Ga. 710, in which our Supreme Court held: "When a person on trial for murder is found guilty of that offense, but with a recommendation by the jury that he be imprisoned for life in the penitentiary, he is convicted of a capital felony, and a writ of error sued out to review a judgment overruling a motion for a new trial in such a case is properly returnable to the Supreme Court." In the opinion of Judge Cobb in this decision, it was stated: "In our view the expression 'capital felony', when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for a violation of the same."

S87
I commend this section to your reading, in the event that this opinion does not clarify the issue in your mind. After reading this case, I am sure that you are right in your contention that Section 1074 of the Penal Code rather than Code Section 1229 of the Penal Code (Sec. 77-401, Code of 1933) is applicable to the situation presented in your letter.
PRISON COMMISSION-Computation of sentences
February 7, 1934 Hon. G. A. Johns, Vice-Chairman Prison Commission of Georgia State Capitol Dear Judge Johns:
Re: John Gouch Yours of the 6th instant requesting an opinion relative to the construction of Section 1067 of the Penal Code (Sec. 22-2510, Code of 1933) in the light of the Act approved August 27, 1931, (Ga. Laws 1931, p. 165) has been received. You state that a prisoner received four sentences in Fulton Superior Court on January 12, 1934, imposed by Judge E. D. Thomas, all of which were to run concurrently five to ten years. Later, on January 23, 1934, this same prisoner was sentenced by Judge C. C. Pittman in the Fulton Superior Court at the same term for a term of not less than 20 years and not more than 20 years on the charge of robbery, the court merely stating in the record that the later sentence was "to be computed as provided in the Act approved August 21, 1931". You desire to know whether the four former sentences are to be served concurrently with the 20 year sentence or whether the 20 year sentence is to be served after the expiration of the first four sentences. We have carefully examined the cases of Fortson v. Elbert County, 117 Ga. 149; Simmons v. Georgia Iron and Coal Co., 117 Ga. 306; Hightower v. Hollis, 121 Ga. 159; Sullivan v. Clark, 156 Ga. 706; Teasley v. Nelson, 164 Ga. 242; and have also examined the authorities in 16 C. J. 1307 and 8 R. C. L. 242, upon this question. All of the Georgia cases above cited were, of course, decided prior to the amendment in 1931. This amendment seems to be in conflict with the provisions of Code Section 1067, for it is provided under this Act: "It shall be the duty of the several judges of this State, in the imposition of sentences for violation of the penal laws of the State, to specify that the term of service, under such circumstances, shall be computed as from the date of the sentence," with certain exceptions in cases of appeal and bond cases. Therefore, we are inclined to defer to the language of Judge Hill in the case of Teasley v. Nelson, as above cited, as follows: "No presumption will be indulged in favor of sustaining a sentence as cumulative. Accordingly, the rule is that where the defendant is already in execution of a former sentence, and the second

888
sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providin~ a different rule." Citing 8 R. C. L. 242. Section 1067 does provide a different rule and provides that in such cases the sentence "shall be severally executed, the one after the expiration of the other", but it is our opinion that the Act of 1931 varies this law to the extent that the service "shall be computed as from the date of the sentence", and certainly in a case such as that under discussion where the court does not in the sentence passed refer to the former sentences imposed upon a prisoner, specifically ordering that the sentences shall be served consecutively, it is our opinion that said sentences are to be served concurrently. Under the Act of 1931, the sentence passed on January 23, 1934, began upon the date of the sentence. It was mandatory upon the Judge to specify that the term of said sentence be computed as from that date, which was done. It is, therefore, my opinion that in the case under discussion, all of the sentences will be served concurrently and at the expiration of the longest sentence the prisoner should be discharged.
PRISON COMMISSION-Authority of Judge m imposing sentences
February 26, 1934
Hon. G. A. Johns Prison Commission of Georgia State Capitol Dear Judge Johns:
Re: John Gouch You will recall that this Department rendered you an opm10n under date of February 7th relative to the construction of Section 1067 of the Penal Code in the light of the Act approved August 27, 1931 (Georgia Laws 1931, 165). Since this opinion was rendered, we find that the Supreme Court, in the case of Murphy v. Lowry, 172 S. E., page 457, (See advance sheet for February 22, 1934), in a very clear and full discussion of this question, reconciled the apparent conflict between Section 1067 (Sec. 22-2510, Code of 1933) and the Act of 1931. In view of the peculiar facts stated in your letter requesting the opinion rendered by this Department on February 7th, we do not think our opinion was in error. However, we thought that we would call this decision to your attention so that you would have the benefit of the opinion of Judge Bell in considering future matters of this nature.
Headnote I of this decision is as follows: "Statute requiring computation of term of service from date of sentence does not preclude courts from requiring sentences concurrently imposed to be served consecutively."

389
And the court further held that the Act of 1931 did not repeal either by implication or otherwise, the provisions of Section 1067 of the Penal Code. In your request for the opinion it was stated that Judge C. C. Pittman who passed the twenty year sentence on the defendant merely stated that this sentence was "to be computed as provided in the Act approved August 21, 1931", which did not amount to a statement that the sentence should be served consecutively with the other sentences imposed by Judge Thomas on January 23, 1934.
PRISON COMMISSION-Prisoner not entitled to deduction of time served on first sentence from second sentences where new trial granted and convicted on second trial
June 14, 1934
Hon. E. L. Rainey, Chairman Prison Commission State Capitol My dear Judge Rainey:
In Re: Charlie Thomas. Yours of recent date which advised that Charlie Thomas was convicted for voluntary manslaughter in Fulton Superior Court and sentenced to a term of from fourteeen to twenty years and on February 23rd voluntarily began the service of his sentence and that on July 24th a new trial was granted; that he was sent back for a new trial, having served five months and six days on the first sentence that later, on the second trial, he was given a sentence of from two to five years on which he began service on October 5, 1933. You also advise that the prisoner contends that in computing his time he should be given credit for the five months and six days under the original sentence. I beg to advise that the latter sentence on which he is now serving is entirely independent of the original sentence and that the prisoner is not entitled to have deducted from the term of the second sentence the time served under the original sentence. There is no connection whatever between the two sentences. The prisoner sought a new trial, and got one and must abide by the results of that trial. It may have been that the jury took into consideration in fixing the last sentence the time the defendant had served on the original sentence, but be that as it may, each sentence is independent.

390

PRISON COMMISSION-Prisoners in county jails or chain gangs may be forced to take treatment for contagious and infectious diseases

July 16, 1934

Hon. G. A. Johns

Vice-Chairman, Prison Commission

State Capitol

Dear Judge Johns:

I have yours of July 13th requesting an opmwn as to whether

prisoners in the county jails or chain gangs can be forced to take.

treatment for syphilis, typhoid and other contagious and infectious

diseases.

-

Civil Code Section 1650 (4), (Sec. 88-417, Code of 1933) provides:

"All persons who shall be confined or imprisoned in any State,

county or city prison of this State may be examined or treated for

venereal diseases by the health authorities or their deputies."

This section gives the aforesaid authorities the further power to

treat such persons at the expiration of their terms of imprisonment

until they are cured at the public expense.

This section obviously gives the health authorities of the State or

counties, and their deputies the right to treat persons for any venereal

diseases.

Under Civil Code Section 1662, (Sees. 88-112, 88-9901, Code of

1933) it is provided:

"The State Board of Health shall have supervision of all matters

relating to the preservation of the life and health of the people

of the State. It shall have supreme authority in matters of quaran-

tine and may declare and enforce the same when deemed neces-

sary. It shall make and enforce reasonable order or regulations

for the prevention of the spread of contagious or infectious dis-

eases."

Also, under Civil Code Section 1670, (Sec. 88-203, Code of 1933)

the county authorities of the several counties are given power to

adopt, enact, establish, or maintain all rules and regulations not in-

consistent with the laws of the Constitution of Georgia and of the

United States, as they may deem necessary and proper for the pro-

tection of the health of the respective counties and for preventing

the introduction, generation and spread of infectious and contagious

diseases therein. Such rules and regulations as the county authori-

ties may establish, before the same shall have the force of law, must

have the written approval of not less than three reputable physicians

of the county, and shall be posted at the court house door of the

county, and also published at least once in the newspaper of the

county in which the sheriffs' notices arc advertised. (See Civil Code

Section 1672); (Sec. 88-205, Code of 1933).

Therefore, it is my opinion that after the county officials have

properly promulgated a rule or regulation relative to the vaccina-

tion of prisoners for typhoid, or any other disease, or for the treat-

ment of any venereal disease, the prisoners in the county jails and

chain gangs may be required to take such treatment.

391
PRISON COMMISSION-Governor without authority to transfer insane convicts to State Hospital for Insane; Prison Commission must provide for them
October 23, 1934
Hon. E. L. Rainey, Chairman Prison Commission of Georgia State Capitol
Dear Judge Rainey: I have yours of the 23rd instant requesting an opinion as to the
authority of the Governor to transfer insane convicts of a violent character from the State Prison Farm to the State Insane Asylum.
I have searched the statutes on this subject and it is my opinion that the Act of 1904 (Georgia Laws, 1904, p. 107; Penal Code Section 1229), (Sec. 77-401, Code of 1933), provides the manner and place of keeping such prisoners. This Act provides:
"In each case where a convict is sentenced to the penitentiary and becomes insane, such convict shall be removed to and kept at the Prison Farm during the term for which he may have been sentenced, or until such insanity is cured, and the Prison Commission shall make such provision for the care, maintenance and 1nedical treatment of such insane convicts as is proper in such cases; provided further, that such convicts as are now in the State Sanitarium under the provisions of either Section 1183 or 1186 of the Criminal Code, shall be returned by the Superintendent thereof to the Prison Commission so soon as arrangements have been made to care for said convicts as is provided in this Act." The citation to Sections 1183 and 1186 of the Criminal Code refer to Volume 3 of the Code of 1895. Section 1183 of the Code of 1895 provides: "If a penitentiary convict becomes afflicted so as the affliction would entitle another person to a place in said asylum, he shall be received therein if accompanied by the certificate of the physician at the penitentiary, and the principal keeper thereof, of said fact. The certificate shall also show the name of the convict, the offense for which sentenced, the county from whence sentenced and his term of service and it shall be filed and preserved." Section 1186 of the Code of 1895 is found in its original form as a resolution in Georgia Laws, 1875, p. 369, as follows: "Whereas, doubts are entertained whether it is the duty of his Excellency, the Governor, to direct the removal of the penitentiary convicts, who are clearly insane, to the lunatic asylum of this State; be it therefore, "Resolved by the General Assembly of the State of Georgia that in each case where a convict is sentenced to the penitentiary of this State and becomes insane, whether in the hands of a lessee or otherwise, on the fact being established to the satisfaction of his Excellency, the Governor, he shall direct said convict to be removed to the lunatic asylum, there to be supported and receive

89~
medical assistance, as other pauper patients do at the expense of the State." This resolution was approved March 6th, 1875. Considering all of these provisions with' respect to the care and disposition of insane convicts (except those convicted of a capital felony and sentenced to death), it is my opinion that the Act of 1904, above quoted, supersedes and repeals the provisions of Sections 1183 and 1186, and that under this Act of 1904, it is made the duty of the Prison Commission to make provision for the care, maintenance and medical treatment of insane convicts and the Governor has no authority to transfer such convicts to the State Sanitarium for the Insane. It is manifest from the Act of 1904 that those insane convicts who at the time of the passage of this Act were in the custody of the State Asylum for the Insane, should, as soon as arrangements could be made by the Prison Commission for the proper care, maintenance and medical treatment, be returned to the custody of the penitentiary system. Please refer to our letter of November 2, 1933, as to insane convicts under death sentences.
PRISON COMMISSION-Where one is indicted for murder in Superior Court and removes case to Federal Court and is convicted of misdemeanor, State executes sentence
November 5, 1934
Hon. G. A. Johns, Vice-Chairman Prison Commission of Georgia State Capitol Dear Judge Johns:
I have your letter of even date with reference to the United States revenue officer who was indicted in the Superior Court of Douglas County for murder, removed his case to the District Court of the United States for the Northern District of Georgia, and was there tried and convicted of a misdemeanor and sentenced by the District Judge of the United States Court to serve three months on the Georgia State Farm. You desire to know whether this man is a Federal prisoner or whether he should be received by the warden of the State Farm to execute the sentence imposed upon him in that institution.
There is no express provision of either State or Federal law on this subject. The removal to the Federal Court was had under U.S. C. A. Title 28, Section 74 et seq. The propriety of the removal of the case is a question which has already been determined by Judge Underwood.
I have made some examination of the authorities and the only case on the exact question which I have been able to find is that of Virginia v. Felts, 132 Federal 85. In that case District Judge McDowell of the United States Circuit for the Western District of Virginia, in laying down the procedure for governing a case which had

898
been removed to his court under the Federal statute, and which in volved facts very closely akin to those involved in the instant case, said:
"Inasmuch as the defendant is prosecuted for an offense against the State law, it follows, in cases of conviction, that the State should execute the sentence. If the verdict and sentence be that the defendant be hanged, the order should direct that he be de livered to the sheriff of the county from which the case came for execution of sentence. If the sentence be imprisonment, the order should direct the marshal to deliver the defendant to the sheriff for transportation to jail or the State penitentiary, as the case may be. If the State authorities decline to receive the convict, an order should be made directing the marshal to liberate him. I perceive no reason why the Federal Government should execute such sentences. If the jury merely imposes a fine on the defen dant, and it is not paid, he should, I think, be delivered to the sheriff of the proper county. If the fine should be forthwith paid by the defendant, I think the clerk of this court should receive it and pay the sum to the clerk of the court from which the prosecu tion was removed; reserving, however, so much of the sum as represents the costs in the Federal Court, if the costs be adjudged against the defendant." The reasoning of Judge McDowell seems to me to be sound. In the same case he outlines the procedure for the trial of a case removed under the Federal Statute as being that applicable, in matters of substance, under the State practice. The effect of the Federal Statute is simply to remove the case itself for trial in the Federal Courts and thus bring about a change of venue. The status of the case is not otherwise altered by the removal. From what has been stated, I think it will be proper for the warden in the State Farm to receive this prisoner and that he be released upon the expiration of his term of service in accordance with the regulations of the Prison Commission of Georgia. I am of the opinion, however, that it is the duty of the United States Marshal to deliver the prisoner to the Sheriff of Douglas County for transmission to the State Farm in the same manner as if he had been convicted in the Superior Court of Douglas County.
RAILROADS-Authority of Georgia Public Service Commission in connection with pullman surcharges in intrastate traffic
October !l6, 1983
Public Service Commission of Georgia State Capitol Attention: Mr. George L. Goode Gentlemen:
Your letter of October 28rd is acknowledged. You state that on September 6, 1988, the Public Service Commission issued a rule nisi calling upon all rail carriers to show cause on October 80, 1988, why surcharges on sleeping, parlor and

894
chair cars now assessed on Georgia intrastate traffic should not be reduced and/or eliminated.
You further state that a considerable number of the carriers have voluntarily amended their tariffs by eliminating these charges in their entirety, and that in such instances the carriers have first obtained permission to do so from the Interstate Commerce Commission and after obtaining such consent that they voluntarily filed their consent with the Georgia Public Service Commission and asked that it be made applicable to intrastate.
You give to me a copy of the response to the rule nisi filed in this matter by the Southern Railway Company, Georgia Southern & Florida Railway Company, and the Alabama Great Southern Railway Company in which response the said companies set up that the present surcharge referred to in the order nisi was put into effect in compliance with a report and order of the Interstate Commerce Commission in a proceeding before it under the docket No. 13, 412, reported in 69 I. C. C. 623. It is further contended by said respondents, as appears from their answer, that the order of the Interstate Commerce Commission entered in connection with said matter requires respondents to establish and put in force and maintain surcharges upon passengers traveling in sleeping cars and parlor cars in intrastate commerce within the State of Georgia which corresponds with the surcharges put into effect under an order of the Interstate Commerce Commission (58 I. C. C. 220) upon passengers traveling in interstate commerce within the State of Georgia and points in other states. The effective date of said order being September 26, 1932, upon notice to the Interstate Commerce Commission and to the general public by not less than five days filing and posting in the manner prescribed by the Interstate Commerce Act.
It is further contended by said respondents that the said order of the Interstate Commerce Commission was duly served upon them, that it is now in effect and has continuously been in effect since the date of its issuance and that the same has not been changed or modified in so far as these respondents are concerned, by the order of the Interstate Commerce Commission. That the Public Service Commission of this State was without jurisdiction to pass an order which would have the effect of changing the present surcharge on Georgia intrastate passenger traffic and was without authority to order respondents to cancel or reduce the aforesaid surcharge upon passengers traveling in sleeping and parlor cars in the State of Georgia. It is further contended by said respondents that the surcharge rate now in effect is reasonable, non-discriminatory and non-prejudicial.
You request that we advise you what may be done in the premises. Under the general trend of authority, I am of the opinion that the pullman surcharge is a charge made to compensate the carrier for special additional passenger service furnished passengers in sleeping and parlor cars not enjoyed by coach passengers. That this surcharge is not intended as an additional tax which the pullman company charges for without giving something in return. That it was devised as a simple and convenient method for computing an addi-

395
tion to the basic passenger fare for those who ride in pullman cars and is in fact equivalent to an increase in the rate per mile.
Therefore, any order of the present Public Service Commission removing or reducing the surcharge fare on intrastate traffic would probably be construed by the courts as a reduction in intrastate passenger fares applicable to the pullman passengers.
The present surcharge, as I understand it, was fixed by the Inter~ state Commerce Commission upon the application of the railroads under Section 15-A of the Transportation Act of 1920. An investigation on the part of the Interstate Commerce Commission resulted in the order of that body under date of July 29, 1920, fixing the basic passenger fare at 3.6 cents per mile and authorizing a surcharge upon passenger in sleeping and parlor cars amounting to fifty per cent of the charge for passengers in such cars. (See ex parte 74, Increased Rates, 1920, 58 I. C. C. 220).
These charges went into effect on August 26, 1922, on all interstate traffic and on intrastate traffic within most of the States. The surcharge, intrastate, was put into effect in a majority of the States by their Public Service Commissions. In Georgia the Public Service Commission denied the application of the carriers for authority to make effective the intrastate surcharge and this charge was established by an order of the Interstate Commerce Commission dated July 11, 1922. (69 I. C. C. 623).
It appears that on September 1, 1920, the surcharge had become effective within the State of Georgia with the approval of the Georgia Commission and that it remained in force on intrastate transportation in Georgia until December 5, 1921, when the Georgia Commission, after a hearing, ordered the cancellation of the surcharge effective on and after December 20, 1921. That the carriers petitioned the Georgia Commission for a rehearing, which was denied and accordingly the surcharge was discontinued on December 20, 1921, on passengers traveling intrastate within the State of Georgia. The carriers filed a petition with the Interstate Commerce Commission who accordingly instituted a proceeding for the purpose of determining whether the discontinuance of the surcharge intrastate within the State of Georgia caused an undue or unreasonable advantage, preference or prejudice as between persons or locations in intrastate commerce on the one hand and interstate commerce on the other hand or any undue, unreasonable or unjust discrimination against interstate commerce; and to determine what charges should be prescribed in order to remove such advantage, preference, prejudice or discrimination that might be found to exist.
In that case (69 I. C. C. 623) the Interstate Commerce Commission found that the order of the Georgia Commission which directed the carriers to discontinue the imposition of the surcharge in Georgia had the effect of reducing additional revenue of the rail carriers which its establishment was intended to produce and found that the surcharge authorized by its order was reasonable, just upon passengers traveling in interstate commerce and that the failure of the carriers to make corresponding surcharges upon passengers traveling

896
in intrastate commerce within the State of Georgia had resulted and would result in intrastate charges lower than the corresponding interstate charges, which resulted in undue prejudice to passengers traveling in interstate commerce within the State of Georgia and between points in the State of Georgia and points within other States and likewise resulted in an undue preference in favor of persons traveling intrastate in Georgia. That this worked an unjust discrimination against interstate commerce.
The Interstate Commerce Commission further found that this unjust discrimination should be removed by the establishment of the surcharge upon passengers traveling intrastate which surcharge should correspond with the surcharge in effect upon passengers traveling in interstate commerce within Georgia.
These findings on the part of the Interstate Commerce Commission were without prejudice to the right of the authorities of the State of Geordia or of any other party at interest to apply in the proper manner for a modification of the findings and order of said commission on the ground that said findings are not related to the interstate charges in such a way as to contravene the provisions of the Interstate Commerce Act.
The Interstate Commerce Commission entered its order in said matter and the surcharge rates went into effect in Georgia.
It is significant to note that the order itself specifically provides that it should
"Remain in force until the further order of the Commission." I have gone somewhat at length into the study of the history of the surcharge as it was put into effect intrastate by the various States. I find that a number of the State commissions, like the Georgia Commission, denied the applications of the carriers for authority to make effective the intrastate surcharge and that the same was established by orders of the Interstate Commerce Commission. For example, in N ortli Carolina the surcharge became effective and remained so for approximately two years and was subsequently abolished by the Act of its General Assembly on March 19, 19~3. The carriers thereupon filed a petition with the Interstate Commerce Commission for relief and on October 6, 19~5, the surcharge was re-established in that State. (10~ I. C. C. 537).
In 19~2 the Interstate Commerce Commission again reviewed railroad rates, including the surcharge, and on May 16, 1922, they handed down an opinion in which they refused to reduce the passenger fares or to annul the surcharge as a part thereof and ordered that the same be continued. (68 I. C. C. 676).
Again, in 19~5, a general investigation was made touching the surcharge but found that the passenger surcharge accruing to the carriers was not unjust or unreasonable and authorized them to continue to collect the same. (95 I. C. C. 469).
The Interstate Commerce Commission in the general surcharge case (95 I. C. C. 476) made a finding to the effect that the

897
"Per car-mile earnings of the railroads were less from the pullman travel than from the coach travel, even when the surcharge collections were added." Reference is made to the general findings of the Interstate Commerce Commission upon which the surcharge was allowed as set forth in this case. The surcharge was put into effect in South Carolina (60 I. C. C. 290); in New York (59 I. C. C. 290); in Illinois (59 I. C. C. 350); in which cases the Interstate Commerce Commission found that the direct effect of lowering the intrastate fares was to disrupt the interstate system of fares, resulting in a material interference with interstate commerce by reducing the earnings of interstate carriers. In Alabama the Public Service Commission undertook to deny the right of rail carriers to collect the surcharge and the Interstate Commerce Commission ordered the surcharge restored. (62 I. C. C. 155). In Virginia the State Corporation Commission passed an order requiring the carriers to discontinue the pullman surcharge on intrastate traffic in that State. An appeal was taken from the order of the Commission to the Supreme Court of Appeals. The proceeding before the Virginia Commission was instituted on April 22, 1924, and a rule nisi was issued by the Commission of that State against all rail carriers requiring them to show cause why the surcharge should not be removed in the State of Virginia and the Virginia Commission continued the case from May to July, because at that time the general investigation touching the surcharge (95 I. C. C. 469), and the North Carolina case (102 I. C. C. 537) were then pending before the Interstate Commerce Commission. However, the Virginia Commission issued its order on August I, 1924, prior to the decision of either of said cases. The Virginia Court found that the pullman surcharge was not an additional tax but was a charge made to compensate the carrier for additional service. That this was not an independent third charge upon the passenger but had been devised as a simple and convenient method for computing an addition to the basic passenger fare for those who ride in pullman cars.
This court also found that if the State Commissioners were allowed to reduce intrastate fares below the general level of the interstate rates the result would be to break down the interstate rates established by Federal authority and that the Transportation Act of 1920 gave to the Interstate Commerce Commission the power to regulate intrastate commerce as far as may be necessary to efficiently regulate interstate commerce and that the State authorities
"Still have the power to deal with intrastate rates on the !ffeneral level which the Interstate Commerce Commission has found to be fair to Interstate commerce." The supporting authority was quoted as the Wisconsin case, 257 U.S. 384, 66 L. Ed. 371, (22 A. L. R. 1086).
In the Wisconsin case referred to the Court said that the authority of the Interstate Commerce Commission as to intrastate traffic was

898
merely incidental to the regulation of interstate commerce but that this authority was necessary to its efficient and effective control. Reference was there made to the Shreveport case in 234 U. S. 342 (58 L. Ed. 134).
The Wisconsin case also cites the Illinois Central R. R. cases in 245 U. S. 493, 62 L. Ed. 425, and the American Express Company cases v. South Dakota, 244 U. S. 617, 61 L. Ed. 1352.
Chief Justice Taft wrote a very full opinion in the Wisconsin case and said that it was incumbent upon the Interstate Commerce Commission to prevent any real discrimination against and obstruction to interstate commerce and that the State commissions in dealing with intrastate rates must do so on the general level which the Interstate Commerce Commission has found to be fair to interstate commerce.
The Virginia Court then went further and held that the Interstate Commerce Commission acting under the Transportation Act occupies the entire field in all matters pertaining to interstate commerce and it has ousted the jurisdiction of the State authorities where they undertake to legislate or regulate the control intrastate transportation- in a manner which results in an unjust or unreasonable discrimination against interstate commerce. Arriving at the conclusion that the Virginia case was controlled by the principles announced in the Alabama case (62 I. C. C. 155); the Georgia case (69 I. C. C. 623); and the North Carolina case (102 I. C. C. 537); and, therefore reversed and annulled the order of the Virginia Commission removing the surcharge.
It, therefore, appears, that the order of the Interstate Commerce Commission under date of July 11, 1922, which put the surcharge into effect in this State and which made the effective date September Q6, 1922, remains in force, it not having been modified as to these respondents, in so far as I have been able to ascertain, by the further order of the Interstate Commerce Commission.
Under the provisions of Section 13 of the Interstate Commerce Act it is provided that such orders of the Interstate Commerce Commission and the rates when fixed by that body which are to be thereafter changed, the law of any State or the decision of any State anthority to the contrary notwithstanding.
The Interstate Commerce Commission having specifically found that the removal of the surcharge by the carriers in this State worked an unjust discrimination against interstate commerce and having ordered the carriers to maintain surcharge upon passengers traveling in sleeping cars and in parlor cars in intrastate commerce within the State of Georgia which correspond with the surcharges made effective by the order of said Interstate Commerce Commission in the increased rates case (58 I. C. C. 220), and not having modified its said order that the Public Service Commission of Georgia at this time does have the authority to remove the surcharge provided by that order.
In the Nebraska rate, fares, and charges case, reported in 81 I. C. C. Q90, the Interstate Commerce Commission, on page 291 and page !l9!l, says :

S99
"The rate charged on the shipments was established and continued in effect during the period of movement under an order made by us. It follows that such order can be altered or set aside only by a further order made by us or by a federal court." This same principle was announced again by the Interstate Commerce Commission in 102 I. C. C. 559. I am of the opinion that the above statement expresses a correct principle of law, especially in view of the fact of the authority of the Interstate Commerce Commission as provided by Section 13 of the Transportation Act. (U. S. C. A. Title 49, Section 13, Par. 4.). In view of the fact that a large majority of the carriers engaged in interstate and intrastate traffic in this State have petitioned the Interstate Commerce Commission for permission to amend their tariffs by eliminating the surcharge and in view of the fact that the Interstate Commerce Commission has given its consent to the removal of this surcharge in every instance where it was applied for, I am of the opinion that the Georgia Public Service Commission should, (I) determine for itself whether the surcharge now in effect and now being made by the respondents in this case should be modified or eliminated in view of present day or changed conditions; (2) Should then make an appropriate finding. In the event that the Commission should determine in its finding that the surcharge should be eliminated or reduced and should the respondents refuse to file an amended tariff so reducing or eliminating the surcharge, I then think it would become the duty of the Commission to proceed as the law directs by appealing to the Interstate Commerce Commission for relief.
UTILITIE8-Georgia Public Service Commission without authority to regulate rates for water furnished by municipalities to citizens residing beyond the corporate limits
February 7, 1934 Mr. J. P. Wilhoit, Chairman Georgia Public Service Commission State Capitol Dear Mr. Wilhoit:
In response to your request that I write you with reference to the matter mentioned in the second paragraph of a letter from Mr. Sweatman to Governor Talmadge under date of February 1, 1934, I wish to advise as follows.
It seems that Mr. Sweatman is complaining as to the water rates being charged by the City of Atlanta to customers who reside outside the city limits. He states that those customers who so reside beyond the city limits must pay the city $40.00 to tap on to the mains and that the minimum monthly bill is $2.50 while within the city the minimum is $1.00.
For reasons which are assigned in the memorandum hereto attached, I am of the opinion that such a complaint cannot be handled by the Commission. On the other hand, if the rates charged are un-

'400
reasonable and unjust, Mr. Sweatman would have recourse to the courts.
The memorandum hereto attached is self-explanatory, I call your particular attention to the conclusion at the end of the memorandum.
POWER OF COMMISSION TO REGULATE WATER RATES The power exercised by the Public Service Commission is a dele-
gated one. The power to fix rates is legislative and vested in the General
Assembly. The power to say what are just and reasonable rates has been delegated to the Public Service Commission.
Southern Ry. Co. vs. Melton, 188 Ga. 277, 280. The power to determine what are just and reasonable rates and charges is vested exclusively in the Commission. Code Section 2680. This board being an administrative body, and not a legislative body, has only such powers as the Legislature has expressly, or by fair implication, conferred upon it. Zuber vs. Southern Ry. Co.. 9th Appeals 589, 2nd headnote. Southern Ry. Co. vs. Melton, 188 Ga. 277. This power to fix just and reasonable rates was originally applicable to carriers, railroad corporations, etc. Section 22681, et. seq. By the Act of 189Q-91, page 151, the authority to regulate rates was extended to
"All companies or persons owning, controlling or operating a line or lines or express or telegraph . . . . . . . . . . . . " Section 2660. By the Act of 1907, page 78; 1908, page 67; 1919, page 64, this authority was extended and enlarged as follows:
"So that its authority and control shall extend to street railroads and street railroad corporations, companies or persons . . . . . . Docks and wharves, and corporations, companies or persons owning, leasing or operating the same; over terminals or terminal stations; cotton compress corporations or associations; telegraph or telephone corporations, companies and persons; gas and electric light and power companies, corporations or persons." Section 2662. Section 2668 discusses generally the jurisdiction of the Commission over such companies, corporations or persons as are named above. Further powers, not pertinent here, are conferred upon the Commission as set forth in Section 2664.
The powers of the Commission with respect to the issuing of stocks and bonds are set forth in Section 2665. The provisions with respect to liabilities and penalties are set forth in Sections 2666 and 2667 -and 2668.

401
By the Act of 19flfl, page 143, the name was changed from Railroad Commission to Georgia Public Service Commission and all powers, duties, privileges and jurisdiction were transferred and expressly conferred upon the Georgia Public Service Commission.
Therefore, the General Assembly has not specifically delegated the power and authority of fixing just and reasonable water rates upon the Commission and since the Commission exercises only such powers as have been delegated to it, it therefore is without authority to prescribe just and reasonable rates for water service.
As stated above, the power exercised by the Public Service Commission in fixing just and reasonable rates is delegated power and must be exercised only in regulating such persons, companies or corporations as come within the provisions of the statute delegating the power.
In this connection the Supreme Court in the case of Riley & Co. vs. Wright, 151 Ga. 609, on page 613, said
"It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex or condition . . . . . This interest or, as it is sometimes termed, estate, that is, the right to continue their prosecutions is often of great value to the possessors and cannot be arbitrarily taken from them any more than their real or personal property can be thus taken." In the above case the court was dealing with the revocation of a license of an insurance agent and held such licenses carried with them property rights and that the Legislature could not destroy such a business at will nor could it arbitrarily take away the right to carry on such business, especially where the business was not inherently harmful. In the case of Estes, et al, vs. Perry, 167 Ga. 90~,
the Supreme Court discusses the history of the conferred power and jurisdiction of the Public Service Commission showing step by step how this power has been enlarged and extended and after thus reviewing the conferring of these powers upon the Public Service Commission concluded as follows:
"The entire legislation deals with administrative matters regulatory of specific businesses, and does not indicate a policy to lay hold of other businesses under a blanket desi~nation. In view of what has been said, the jurisdiction of the Georgia Public Service Commission does not include regulation and control of the business of motor busses on the public highways of this State." Following the decision in the 167 Ga., supra, the Supreme Court in Mcintyre vs. Harrison, 172 Ga. 65,

40~
again had this particular matter under advisement and referred to the Perry case. In the Mcintyre case the court asked and answered the following question:
"Will injunctive relief be granted to restrain the Commission from exercising control and regulation over a business, where the power to do so has not been conferred by law upon that body?"
In discussing the question the court, on page 69, said:
"If the plaintiffs are private carriers, we shall undertake later in this opinion to show that they are not subject to regulation by the Commission under this Act." And again on page 70 the Court said:
"If plaintiffs are private carriers, they are not subject to the Motor Carrier Act of 1929 as we shall undertake hereinafter to show; and in that event they would not be liable to control and regulation by the Commission under that Act."
It follows from the above that the Supreme Court was of the opinion that an injunction was a proper remedy to prevent the Commission from undertaking to exercise jurisdiction over a business where authorities to regulate had not been conferred by law.
In an older case, Long vs. Railroad Commission, 145 Ga. 353,
the Supreme Court, while it did not grant the injunction there sought, said, on page 355;
"Should the Railroad Commission actually promulgate the rules which they proposed to consider, and threaten to enforce them and put them in a form to be enforced, the question as to their power under the laws and the constitution to do this may be raised and refused."
In the last case, the Supreme Court had under consideration the question as to whether the authority of the Railroad Commission extended to the regulating of persons engaged in motor bus business for hire. It appeared that while the Commission had held that it was their duty under the laws of the State to exercise general supervision over the business of all common carriers of passengers in this State, including those engaged in the operation of automobiles and motor cars under regular schedule and definite routes or between definite points or termini, that the rules and regulations attacked had not been promulgated but were only under consideration as tentative rules. The court simply stated that
"Courts will not undertake in advance to enjoin one from considering whether or not he will perform a certain act."
When a municipal corporation owns and operates its own water system and fixes the rates by ordinance, the courts have held that such rates are not taxes but merely the price paid for a commodity, and that the relation between the municipality and the consumer is simply one of contract.
40 Cyc. 796

403
It has also been held that it is reasonable for either a municipality or a company to require the consumer to bear the burden of making connections between his premises and the main as well as requiring the customer to bear the expenses incurred in repairing service pipes leading from the main to the property of the consumer. It has also been held that it is reasonable for such authority to require the consumer to bear the expenses of the meter and to provide such rules and regulations governing the supply of water to its customers and their use thereof as are necessary including rules which tend to prevent the waste of water or its use by persons who do not pay for it and rules respecting the style and installation of plumbing, hydrants, etc.
40 Cyc. 794, 795, With citations. The Legislature has power which it may delegate to a municipality to fix the rates to be charged by a water company for its service and independent of statute, a municipality has the power and owes a duty to its inhabitants to prevent extortion in the price charged for water supplied and to compel that it be furnished at reasonable rates. 40 Cyc. 797. In fixing water rates, a municipality must conform to the statute which grants the authority. 40 Cyc. 798.
A municipal corporation which operated its own water works may fix the rates so as to derive a fair and reasonable revenue from the plant. As the system is operated by a private company and the rates are fixed by the municipal authorities, they must not be established arbitrarily and made unreasonably low but must be fixed at such a figure as will enable the company to derive a- fair and reasonable profit from its operations and the basis for calculation of such profit is the fair value of the plant and property at the time it is being used taking into consideration the cost of maintenance or depreciation, current operating expenses, taxes and fixed charges, and dividends in a fair and reasonable rate. On the other hand, the rates must not be unreasonably high so as to either produce an excessive profit or inflict hardships upon the consumer.
40 Cyc. 799, 800.
The limitation upon the municipality is usually expressed in the statute, however where the rates have not been fixed either by statute or municipal ordinance, the rates established are subject only to the limitation that they must be fair, uniform and reasonable.
Water rates, like other rates, must be uniform and free from unreasonable discrimination as to all consumers using substantially the same amount of water, etc. Customers however, may be classified according to their various businesses or with reference to the quantity of water used and special rates may be provided for those whose situation or the character of whose demand for water makes it especially expensive or trmiblesome to serve them.
40 Cyc. 802, 803.

404
One of the leading cases dealing particularly with the question of discretion between customers who are centrally located and those who reside in an outlying district is the case of
Souther, et al, vs. the City of Glouscester, 187 Mass. 552, Reported in 69 L. R. A. 309. The principle there announced is as follows: "Owners of cottages in an outlying district of a city cannot complain that some discretion is made on rates between them and customers in the heart of the city, where special circumstances exist which justify it." In this case special pipes were required to be laid and an additional reservoir had to be constructed to enable the city to furnish the water to the outlying districts and the court said that these were such special circumstances which justified a discrimination in rates between the two classes of consumers and that the consumers, therefore, did not have a right to complain because the city required them to pay as much for service during the summer months as it required its customers in the city to pay during the whole year.
This was a suit brought by citizens residing in the outlying district against the City of Glouscester, seeking to enjoin the city from cutting off the plaintiff's water supply. The court said that the special cost of extending the system to the outlying section, the interest on the cost of this special construction and on the construction of the works as a whole were matters which should be considered in determining whether or not the rates fixed were reasonable.
It therefore seems to be clear that: (I) the General Assembly of Georgia has not delegated to the Public Service Commission the power and authority to fix just and reasonable water rates; (2) that the General Assembly has, in specific instances, delegated to municipalities the right to own, maintain and operate a water system and that this right necessarily implies the right to fix just and reasonable water rates; (3) that the municipality may delegate this power either by contract or otherwise to private corporations, and may fix the rates by contract; (4) that the municipality may by ordinance or otherwise prescribe just and reasonable water rates for customers served by it or for customers served by corporations under contract with it; (5) that in fixing just and reasonable water rates, special circumstances might permit some discrimination between those customers residing in the heart of the city and those residing in outlying districts; (6) while specific statutory authority given to a municipality is confined to the corporate limits of the city, there is no inhibition against the city making provision to furnish water to its consumers residing beyond the city limits; (7) that in the absence of either statutory regulation or in the absence of prices fixed by municipal ordinance there is no limitation except that the rates fixed must be reasonable and just and reasonably commensurate with the cost of rendering the service and the worth of the service to the consumer; (8) that where citizens re-

405
siding beyond the municipal limits or being served by the municipality and have reasonable ground for complaint as to the rates being charged, their recourse would be to the courts and not to the Commission.
UTILITIES-Power of Georgia Public Service Commission in regard to issuance of notes or obtaining of loans by motor carriers operating within this State.
June 18, 1934 Hon. Jud P. Wilhoit, Chairman Georgia Public Service Commission Dear Mr. Wilhoit:
I have your letter of June 15 requesting my opinion as to whether or not the Georgia Public Service Commission has jurisdiction to pass upon a proposed issuance of notes, or the obtaining of loans, by motor carriers operating within this State. Your question does not indicate whether you have reference to motor common carriers or private motor carriers.
The authority of the Public Service Commission in this respect is found in Section 2665 of the Civil Code of 1910 (Sec. 93-414, Code of 1933). This provides generally that the company or corporation over which the authority of the Commission is extended shall not
"Issue stocks, bonds, notes, or other evidences of debt, payable more than twelve months after date thereof, except upon the approval of said Public Service Commission," and then only when necessary for the purposes prescribed. The authority of the Public Service Commission to pass upon proposed transactions whereby the credit of any such corporation is pledged is expressly limited to evidences of debt which do not mature within 12 months from the date thereof. There is nothing in either of the Acts of the General Assembly regulating the operation of motor carriers for hire or motor common carriers which confers upon the Commission jurisdiction to pass upon indebtednesses proposed to be contracted by any corporation so engaged. In the case of Estes v. Perry, 167 Ga. 902, the Supreme Court held that the regulatory powers of the Public Service Commission did not extend to common carriers other than classes of common carrier corporations specifically mentioned in the Acts defining the jurisdiction of the Public Service Commission. This was before the passage of the Motor Carrier Acts but since neither of these Acts extends the authority of the Public Service Commission to regulating the issuance of securities by motor carriers and since the Supreme Court held in the case just cited that the Public Service Commission had no jurisdiction at all over motor carriers before the passage of the Acts regulating them, I am of the opinion that the Public Service Commission is without jurisdiction to pass upon any loan proposed to be contracted by a corporation so engaged.

406
MOTOR CARRIERS-Georgia Public Service Commission is not authorized to permit license issued to interstate carrier under Section 18 of Motor Carriers Act to be transferred from one person to another
November 9, 1934 Hon. J. M. Forrester, Secretary Georgia Public Service Commission Dear Mr. Forrester:
I am in receipt of your letter of the eighth in which you ask my opinion as to whether or not under the law the license issued under Section 18 of the Motor Carriers' Act approved March 31, 1931, which authorizes the operation of the vehicle registered and licensed, under the registrant's certificate of convenience and necessity may be transferred from one carrier to another.
Section 18 of the Motor Carriers' Act is as follows: "Every motor carrier shall as soon as a certificate is issued and annually on or before each succeeding January first as long as such certificate remains in force, make application to the Commission for registration and license of all motor vehicles to be operated under said certificate and upon payment of a fee of $25.00 for each vehicle to the Comptroller General shall be entitled to register the same and receive a license therefor. "The sum or sums derived herein from the issuance and transfer of Certificates of Convenience and Necessity by the Comptroller General, shall be paid to the State Treasurer who shall keep such sums thus paid to him in a separate fund to be known as the Motor Vehicle Fund. From such funds thus derived the State Treasurer shall, upon proper warrant from the Governor, pay all the expenses and salaries of every character as due and provided herein. Such sum or sums as may be left after such salaries and supervisory expenses have been paid, as may remain unexpended on the first day of January each year, shall be paid to the State Highway Department for use in maintenance and repair of the highways, as in the discretion of the Highway Board may be directed." It will be noted that each motor carrier is required to make application to the Commission for registration and license of all motor vehicles to be operated under the Certificate of Convenience and Necessity issued to the carrier. It is my opinion that the registration of the vehicle is not for the purpose of identifying the vehicle and the license issued does not pertain to the vehicle itself, but is simply issued under the Certificate of Convenience and Necessity as a permit for the operation of the particular vehicle. In other words, the license is not a license of the vehicle itself but a license to the operator, who is thereby authorized to operate the particular vehicle under his Certificate of Convenience and Necessity. For this reason I am of the opinion that the license or permit to operate the vehicle on the highways of the State for hire is not transferable with the vehicle but being a license granted to the carrier as such, it must be retained by the carrier and can only be exercised

407
by him. I am therefore of the opinion that although the Commission would be authorized to transfer the vehicle license from one truck to another, in the event of the sale or destruction of the truck licensed, it is not authorized to transfer the license issued for the operation of the truck from one person to another except where there is also a transfer of the Certificate of Convenience and Necessity under which the truck was being operated.
I think the same rule applies to trucks engaged in operations in interstate commerce. while such carriers are not required to obtain a Certificate of Convenience and Necessity they are required to qualify with the Commission in the manner pointed out by the Act and the licenses granted to interstate carriers under Section 18 are in the same manner licenses for the operation of particular vehicles, which are not issued as means of identifying the trucks. Consequently, I am of the opinion that the Commission is not authorized to permit a license issued to an interstate carrier under Section 18 to be transferred from one person to another.
PRINTING-Liability of State Printer under contract
June 15, 1933 Hon. J. J. Mangham Supervisor of Purchases State Capitol
My dear Mr. Mangham: This will acknowledge receipt of a letter from your Assistant, Mr.
Kettles, reading as follows: "I will appreciate your giving me your opinion as to whether or not
the State Printer has any authority to have any part of the State printing done outside his own shop."
Replying to this letter, I wish to advise as follows: As you know, the duties formerly devolving upon the Commissioner of Public Printing, and upon the Superintendent of Public Printing, were by the reorganization Act of 1931 transferred to the Supervisor of Purchases. The office of Superintendent of Public Printing was abolished, and all of the powers, duties and functions of said office were vested in the Supervisor of Purchases. The Commissioners of Public Printing were likewise abolished, and the powers, duties and functions heretofore devolving upon them are now vested in and delegated to the Supervisor of Purchases.
Under the law, it is the duty of the Supervisor of Purchases in the the exercise of the duties heretofore devolving upon the Commissioners of Public Printing, and the Superintendent of Public Printing, to contract for the public printing of the State, in the manner set forth in Chapters 5, 6 and 7 of Michie's Code, beginning with Section 1337 and ending with Section 136~(~6). Any person who bids or contracts for the purpose of doing public printing for the State, within the provisions of the law referred to, should have the capacity

408
and ability to perform such contract in such a way as will promote the best interest of the State.
When any such contractor fails to do the work according to the contract, or fails to furnish the material contracted for, then the contractors and their securities are liable on their bond, for any such failure, and the bond may be forfeited and a new contract awarded. In such event, such security shall be liable for the resulting damages.
The bond also is for the purpose of guaranteeing that the contractor will promptly and faithfully perform his duty as set forth in the contract, and according to the specifications set out therein, and within the time specified therein.
I especially refer you to Sections 1339, 1343, 1356, 1362 (20) and 1362 (24) of the Code of 1926. Section 1340 of this Code provides that this shall be unlawful for any person who contracts to do all of the pnblic printing for the State of Georgia as herein provided to transfer or assign said contract.
While, by the specific provisions of the above Section, such contracts for public printing of the State cannot be assigned, yet, in my opinion, the contracting party can arrange for the performance of the contract according to its terms, stipulations and conditions, so long as he does in fact live up to the contract. Since he is under bond and responsible for the faithful and efficient performance of the contract according to the specifications recited therein, I think that it is the duty of the Supervisor of Purchases to see that the contract is fully, faithfully and efficiently performed. So long as the contractor does this, either in his own shop or through others whose aid he may enlist, I think that the provision of the law will thereby be fully met. He cannot assign his contract so as to avoid any liability thereunder, but in my opinion, he can provide for assistance which would enable him to faithfully and efficiently perform every duty under the contract.
ELECTRICAL CONSTRUCTION-Georgia School of Technology not subject to ordinances of City of Atlanta regulating electrical construction
July 17, 1934
Dr. M. L. Brittain, President Georgia School of Technology Atlanta, Georgia My dear Dr. Brittain:
I have the letter of Miss Henderson, your Secretary, dated July 17, 1934, requesting my opinion as to whether or not the City of Atlanta can enforce its ordinances regulating electrical construction on the property of the Georgia School of Technology and against that institution.
The Georgia School of Technology is a branch of the University System of Georgia, which is under the direction of the Regents of the University System, a governmental agency of the State.

409
The property of the Georgia School of Technology is held by the Regents in trust for the people of the State, and by express declaration of Statute the State has an interest therein, Civil Code 1910, Section 1282, (Section 91-104, Code of 1933).
I am of the opinion that the City of Atlanta is without authority to enforce its ordinances against the State of Georgia or against any governmental agency of the State. In my opinion, the Georgia School of Technology may do its electrical work through such means or agency as the governing authorities of the institution, in the exercise of the discretion vested in them by State law, may deem proper, and that without reference to any ordinances of the City of Atlanta.
There is nothing in the charter granted to the City of Atlanta by the State of Georgia which authorizes it to control or regulate the governmental affairs of the State.

INHERITANCE TAX-State Revenue Commission unauthorized to refund inheritance tax payment voluntarily paid

Hon. Paul H. Doyal, Chairman State Revenue Commission

January 31, 1933

Dear Mr. Doyal: This letter is in reply to your letter of January 23, 1933, in which

you request an opinion as to whether or not under the law you would be authorized or required to refund to the Citizens & Southern National Bank the sum of $913.16 paid by the bank to the State Revenue Commission on or about November 5, 1931, same having been paid on inheritance tax claim against the Estate of W. B.
Hamby. From your letter, and the inclosures therewith, it appears that W.

B. Hamby, at the time of his death on November 6, 1930, was a resident of Georgia; that he owned at the time of his death a large estate, consisting of both real estate and personal property; some of which was located in Georgia and some in Florida; that he filed his return for federal estate tax and that this return as agreed upon showed a tax liability of $1,618.87, $1,295.00 of which could be credited on account of state inheritance taxes.

That subsequently, the said bank made the payment of $913.16 on this account to the State Revenue Commission. It further appears that this was a voluntary payment on their part.

There is no provision in the inheritance tax law of Georgia which would authorize or require you to make this refund. The only

provision in the Act authorizing a refund is as follows: "Provided that if after the filing of a duplicate return and the assessment of the state inheritance taxes the Federal authorities

shall increase or decrease the amount of the Federal Estate tax, an amended return shall be filed with the State Tax Commissioner

showing all changes made in the original return and the amount

of increase or decrease in the Federal Estate tax, and such official

410
shall assess against said estate SO per cent of the additional amount
found to be due for Federal Estate tax. In the event of a decrease in the Federal Estate tax the state shall refund to said estate its proportion of said decrease." Code Section 4317 (Section 2().....1007, Code of 1933) on the question of voluntary payments is as follows: "Payments of taxes or other claims, made through ignorance of the law, or where the Acts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule." Therefore, it is the opinion of this Department that since there is no provision in the Act authorizing the refund and since the payment was a voluntary one, you would not be authorized nor required to make the refund. We are returning herewith the file in this matter.
CIGAR AND CIGARETTE TAXATION-Construction of Act taxing cigars and cigarettes
February 7, 1933 Hon. R. E. Matheson, Commissioner State Revenue Commission Dear Mr. Matheson:
I acknowledge receipt of your letter of February 6th, in which you advise that numerous retail dealers are selling cigarettes for 17 and 18 per package, and are affixing only a 27!l tax stamp thereto.
You request to be advised as to whether or not this is a compliance with the law requiring a stamp tax of 20% on the retail price on cigarettes, in view of the following language of paragraph A, Section 2, of the Act levying this tax:
"Whenever in this Act reference is made to the retail sale price of the article taxed as the basis for computing the tax, it is intended to mean the ordinary, customary or usual price paid by the consumer for the articles taxed." It is noted that your investigation discloses that the ordinary, customary and usual price at which these cigarettes are sold is 12~ per package. Since the tax is levied upon "the retail sale price," and since the term "retail sale price" is expressly defined as meaning the ordinary, customary or usual price paid by the consumer for the articles taxed, it is the opinion of this Department that a tax of 20% of the retail sale price as thus defined is a compliance with the law, even though some retail dealers may sell the same package of cigarettes at a greater price than is usual and customary. Therefore, I think that even if numerous retail dealers sell certain cigarettes for more than

411
Ifl,Y2 per package, they are not required to stamp the goods in accordance with the price at which they actually sell them, but in accordance with the ordinary, customary or usual price paid by the consumer, and therefore, if this price is 12,Y2 per package, a 2,Y2 tax stamp is all that is required on such package.
CORPORATION TAXES-Commissions of tax collectors on delinquent corporation taxes
April 18, 1983 Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
I have your letter of the 14th inclosing a communication from Hon. John L. Cabell, Tax Collector of Chatham County, with reference to his commissions on delinquent corporation taxes. I note Mr. Cabell states that his reason for deducting commissions at 10% is that commissions at this rate are allowed by the Act creating the Department of Revenue which was not affected by the provisions of the Reorganization Act, which created the State Revenue Commission.
Mr. Cabell evidently has reference to Section 3 of the Act approved December 14, 1923, creating the Department of Revenue, which section is as follows:
"Be it further enacted by the authority aforesaid, That it shall be the duty of the tax collectors of this State to cooperate with the department of revenue in supplying information as to delinquents, and said department shall have access to all records of tax collectors of this State in putting into effect the operation of this Act, and that said tax collectors shall not be entitled to any commission whatever in the collection of delinquent taxes except where such collections are made directly by such tax collector, and then such commission shall not exceed that of ten per cent now provided by law, and said tax collectors shall not then have right to relieve any delinquent of penalty provided in this Act, but shall collect said penalty and remit same, less his commission of ten per cent. to said revenue department." It will be quoted that this section provides that the tax collector shall be entitled to commissions for collections of delinquent taxes only in cases where such collections are made directly by the tax collector and such commission shall not exceed that of 10% now provided by law. While it is further provided that the tax collector shall collect the penalty "and remit same less his commission of ten per cent. to said Revenue Department," I do not think it was the intent of this section to fix the commissions of tax collectors on delinquent taxes at 10%. The purpose and intent of this section was to allow a tax collector the same commission for collections made after the tax had become delinquent as he would receive if such collection was made before delinquency. If this section should be otherwise construed and it should be held that in the case of delinquency the

41~
tax collector would be entitled to ten per cent and in case of collections before delinquency he might be entitled to a less commission the effect would be to encourage the tax collector, in some instances, to permit taxes to become delinquent. While I know, of course, no such result would obtain in the case of the tax collector of Chatham County because Mr. Cabell is a very active, energetic and conscientious public officer, such result might obtain in other instances. It certainly could not have been the policy of the General Assembly to make such a result possible.
Under the General Tax Act now of force, to which you refer, the commissions of tax collectors for the collection of domestic corporation tax is fixed at five per cent. of the first $500.00, two per cent. of the amount from $500.00 to $1,000.00, and one per cent. of all amounts above $1,000.00. This scale of commissions was not in force at the passage of the Act of 1923 referred to but in view of the fact that since the passage of that Act the commissions of tax collectors on collections of domestic corporation tax have been reduced to the scale now of force, it is my opinion that under the plain language of Section 3 of the Act 1923 a tax collector is entitled only to the commissions fixed by the General Tax Act on collections of this sort, whether made before or after delinquency. This construction is, I think, authorized by the express provision of Section 3 referred to, that such commissions shall not exceed that of 10% now provided by law. At the time of the passage of the Act of 1923 the tax collector received ten per cent commission on all special taxes. In many cases he receives that amount of commission now but he does not receive ten per cent on the domestic corporation tax.
MOTOR VEHICLES-Authority of State Revenue Commission regarding sale of lists of automobile owners of the State
April ~7. 1933 Hon. Paul H. Doyal, Chairman State Revenue Commission Dear Mr. Doyal:
I have your letter of August 27 with reference to the resolution approved August 21, 1929, regarding a sale of the lists of automobile owners of the State. You ask the following questions:
1. "Does said resolution make it mandatory for the motor vehicle commissioner of Georgia, (the functions of which are now being performed by the State Revenue Commission of Georgia), to furnish the lists referred to therein where the purchaser is willing to pay the price asked therefor?"
.d.nswer: In my opinion the resolution makes it mandatory upon the Motor Vehicle Commissioner, and now upon the State Revenue Commission, to sell the list of automobile owners of the State where the purchaser is willing to pay the price charged therefor.
2. "Does the provision 'is hereby authorized and required to sell said lists' refer to the complete list of registered owners, or can it be made mandatory to furnish a designated part thereof?"

418
Answer: In my opinion the list referred to by the resolution is a complete list of all the automobile owners of the State, and that the State Revenue Commission cannot be required to furnish a designated part thereof. It will be noted that the preamble of the resolution recites that:
"There is a great demand for a list of all the automobile owners of the State;" it will be noted further that the body of the resolution authorizes and requires the sale of "said lists", manifestly referring to a list of all the automobile owners of the State. 8. "In other words, can we under such resolution be required to furnish a list of any designated county of the State, a list of any designated make of car, a list of new cars purchased, or any designated list which does not include the complete registration list?" Answer: This question is answered in the negative by what is stated in answer to question No. 2. 4. "Does the further provision in said resolution 'be further authorized and required to charge for all reports furnished in regard to the license numbers and motor numbers on file' in any way affect the obligation in either of the foregoing three particulars?" Answer: In my opinion what is stated above is in nowise affected by the provisions of the resolution quoted in this question. This language refers to the information and reports in regard to the license numbers and motor numbers on file, and has no reference to the complete list of all the automobile owners of the State.

TAX ASSESSOR-Tax assessor disqualified to hold any other office

Hon. Paul H. Doyal, Chairman State Revenue Commission Dear Mr. Doyal:

May 80, 1988

I have your letter of the 25th in which you state your attention has been called to the fact that in some counties Justices of the Peace or holders of other county or municipal offices have been appointed to the County Board of Tax Assessors, and have continued to hold office during their terms as assessors.

The section of the Act of 1913 quoted by you seems rather to render a member of the Board of County Tax Assessors ineligible to hold another office than to render the holder of another office ineligible to be a tax assessor. In other words, a tax assessor would not be eligible to be appointed to another office, and the proper construction of the Act might be that upon his qualifying as a tax assessor such person would thereby automatically become ineligible to continue to discharge the duties of another office which he was holding at the time he was appointed tax assessor. However this may be, it is quite clear that no person can be a tax assessor and hold another office at the same time.
I think, however, that the Acts of such a person as Tax Assessor

414
would be valid as the acts of an officer de facto. See in this connection, in Civil Code 1910, Section 258 (Section 89-101, Code of 1933). In Wright v. State, 124 Ga. 84, it was held that even though a Justice of the Peace might be ineligible to hold the office of Jury Commissioner, his Acts as a Jury Commissioner were valid as the 'Acts of a de facto officer.
I think the principle upon which this case rests would have application to a member of the Board of County Tax Assessors.
From what is said above it is my opinion that a digest made up by a Board of Tax Assessors composed in part of members holding other offices at the same time they act as County Tax Assessors is not void but is a valid digest, and that the Acts of such Tax Assessors are valid as the Acts of de facto officers.
BILLIARD AND POOL ROOM8-Act regulating operation of billiard and pool rooms constitutional
August 22, 1933
Hon. R. E. Matheson State Revenue Commissioner
Dear Mr. Matheson: I have your letter of the 16th with reference to the Act approved
August 26, 1925, regulating billiard rooms. In the case to which you refer the Act of 1925 as well as the pro-
visions of the General Tax Act levying a tax on billiard rooms, etc. were attacked as unconstitutional on various grounds as set forth by the petition. The case was decided in favor of the plaintiff and the effect of the judgment was to hold both the tax Act insofar as it applies to billiard rooms and the Act of 1925 to be unconstitutional. The case was never appealed and the question has never been passed upon by the Supreme Court.
In the case of Shaver v. Martin, 166 Ga. 424, the Supreme Court laid down the broad general rule that a pool or billiard room for public entertainment is a business which, from its very nature comes within the police power of the State. In that case the Supreme Court upheld the ordinance of the City of Macon prohibiting the operation of public billiard and pool rooms.
While there is no express reference in the caption of the Act of 1925 to the provisions requiring applicants for licenses to operate a billiard room to give a surety bond, I think the caption is broad enough to cover that provision. If the bond is designed only to secure payment of the license fee it might be held to be unconstitutional on the ground that it is a special law having application only to billiard and pool rooms when no such requirement is made of persons operating other businesses licensed by the General Tax Act. However, if the requirement in question is designed to secure conformity to the regulations provided by the Act this result would not follow.

415
H it will be of any benefit to the Department of Revenue to insist upon compliance with the provisions of the Act of 1925 with reference to giving a bond my advice to you would be to do so. We can then make a case and allow the Supreme Court to determine the constitutionality of the Act.
In my opinion it is constitutional and valid, the judgment of- the Superior Court of Fulton County to the contrary notwithstanding.
CHAUFFEURS-Definition of a chauffeur and who required to obtain chauffeurs' licenses
November 7, 1933 Hon. Paul H. Doyal, Chairman State Revenue Commission My dear Mr. Doyal:
I am in receipt of your letter of recent date attaching a letter from the Georgia Power & Light Company at Valdosta, Georgia, with reference to chauffeurs' licenses.
Georgia Code, Paragraph 1770(23) says: "The term chauffeur shall apply to any person, operating a motor vehicle other than his own as mechanic, employee, for hire; but shall not apply to any employee of a licensed dealer demonstrating or testing cars under said dealer's license." I realize fully the difficulties which may result from any effort to classify persons who are operating automobiles for their employers. Any opinion which this department may render must be construed in the abstract and the concrete application of the principles stated will in a large measure depend on discretion, common sense and judgment. In my opinion, if the contract of hire contemplates that the employee shall operate a motor vehicle then the employee is a chauffeur. It is my further opinion, if the contract of .hire does not contemplate the operation of a motor vehicle by the employee and if the operation is merely occasional and incidental then the employee is not a chauffeur. I realize fully that the line of demarcation is shadowy and the enforcement of this law should be with discretion, common sense and good judgment but like all laws it should be observed.
INHERITANCE TAX LAW-Construction of December 4, 1933
Hon. Paul H. Doyal, Chairman State Revenue Commission Dear Mr. Doyal:
I have your recent letter inclosing communications from Messrs. Cumming and Harper, Augusta, Georgia, and a communication from Messrs. Wright, Jackson and McClure, also of Augusta, Georgia, with reference to the inheritance tax Act of the State of Georgia,

416
and the proper construction to be placed thereon in view of the Act of Congress of June 6, 1932, amending the inheritance tax law of the United States.
The Georgia statute as amended simply provides that the legal representative of any person dying in this state, and whose estate is subject to the payment of a federal estate tax, shall file a duplicate of the federal return with the State Tax Commissioner, and shall pay to the State Tax Commissioner for state inheritance taxes SO% of the amount found to be due for federal estate taxes. The reason for fixing the amount of the state inheritance tax at SO% of .the federal estate tax was that the federal law allows the deduction from the federal estate tax of the amount paid to the state in inheritance taxes provided such amount does not exceed SO% of the federal tax. The state law did not, however, require the payment of a state inheritance tax equal to the exemption allowed on account of state inheritance tax by the federal law, and the amount to be paid to the state is in nowise dependent upon the exemption allowed by the federal law.
It is the opinion of this Department that the federal return referred to by state law, a duplicate of which is required to be filed with the State Tax Commissioner is the federal return required to be made under the federal estate tax law as it existed at the time of the passage of the state law. It is true that it was provided by the Act of 1927 that if the federal authorities shall increase or decrease the amount of the federal estate tax after the filing of the duplicate return and the assessment of the state inheritance tax, a corresponding change shall be made and the amount in the state assessment upon an amended return showing such increase or decrease being filed with the State Tax Commissioner. This provision of law does not, however, operate to change the basis for assessing the state tax and was merely intended to authorize a reassessment by the State Tax Commissioner in the event the federal authorities, under the then existing federal law should make a change, as authorized by the then existing federal law, in the amount of the federal estate tax. This provision cannot be construed to mean that in the event of a subsequent change in the federal Act a like change in the state law would result. It merely means that the State Tax Commissioner in assessing the state inheritance tax shall follow the manner and method employed by the federal authorities in assessing the federal estate tax under the then existing federal laws.
It is the opinion of this department that the Act of Congress of June 6, 1932, had no effect whatever upon the state inheritance tax law. It will be noted from an examination of the federal Act of 1982, which will be found in the 1933 supplement to the U.S. C. A., Title 26, Section 1092a, that it imposes the tax therein provided for in addition to the estate tax imposed by Section 1092 of Title 26, which is the Act of 1926 in force at the time of the passage of the state law.
As hereinbefore stated, I do not think the State law can be construed to fluctuate in accordance with subsequent Acts of Congress.

417
To so construe the Act would, in my opinion, render the State law unconstitutional as amounting to the delegation of the legislative powers of the General Assembly of the State of Georgia to the federal congress.
See in this connection Featherstone v. Norman, 170 Ga. 370. As a practical matter, the Federal Act of 1932 offers no difficulty to the calculation of the state inheritance tax since the tax imposed by the federal Act of 1932 is in addition to that imposed by the federal Act of 1926, and the taxpayer is still required to make the return necessary under the Act of 1926. 'With a special reference to the correspondence of Messrs. Wright, Jackson and McClure, it would seem that under the 1927 amendment to the Georgia Inheritance Tax Act, the estate of George R. Lombard is entitled to a refund of the amount of $2,540.16 heretofore paid as an additional inheritance tax in accordance with an additional assessment made by the federal authorities. It seems from their letter to you that on August lOth, 1931, the executor of this estate paid this sum on account of an increase in a federal assessment, the increase being brought about by reason of the refusal of the federal authorities to accept the valuation placed by the executor on certain real property. The payment was made to the federal government and a suit to recover the same back was instituted. This suit was adjudicated in favor of the taxpayer, and as the matter now stands, the estate has paid to the State of Georgia the amount stated above, which the state was not entitled to collect under the provisions of the Act of 1927, making the federal return basis for assessment. Of course, we have no information as to the facts about this matter.
With a special reference to your correspondence with Messrs. Cumming and Harper, in which they particularly desire information as to whether there is now a valid Georgia Inheritance Tax law, I beg to say that in my opinion, the repeal by Congress of the federal Act of 1924 had no effect upon the State Act of 1926. The Act of 1925 provided in general terms for the filing with the state authorities of a duplicate of the return required to be made to the federal government under the Act of Congress of 1924, and for the payment to the state as state inheritance tax of 25% of the amount required to be paid to the federal government as federal estate tax. Of course, the Act of 1925 required the payment to the state of 25% of the federal estate tax accruing under the then existing Act of Congress, that is, under the federal Act of 1924. However, the Act of 1926, which is the present Georgia Inheritance Tax Act, while enacted as an amendment to the Act of 1925, in my opinion does not relate back to the Act of 1925 so as to operate upon the basis fixed by the federal Act of 1924, but was manifestly intended as a new state inheritance tax Act, adopted as the basis for assessment the federal estate tax Act of 1926. As hereinbefore stated, the state Act does not depend for its validity upon the federal Act. It merely adopts the federal law as the measure of the tax. This being true, a change in the federal law or even the repeal of the federal law would

418
not affect the state law. Even i it could be said that the state Act of 1926 was intended to operate upon the federal Act of 1924, I do not think the repeal by Congress of that Act would nullify the state law. I think the state might legally and constitutionally adopt as the measure for assessing a tax levied by state law a basis laid down by some federal Act already repealed. I do not think, however, that this is what the state Act of 1926 purports to do, or that such was the intent and purpose of the General Assembly. As just stated, in my opinion, the state Act of 1926 intended to adopt as the measure for the state inheritance tax the federal estate tax imposed by the Act of Congress of 1926. I do not think that the repeal or modification of the federal Act of 1926 would work any change in the state law.
TAXATION-Construction of Gross Receipts Tax Act
December 19, 1933 Hon. John Andy Smith, Chief Clerk Income Tax Division State Revenue Commission Dear Mr. Smith:
I have given careful consideration to the matter of the liability of the Callaway Mills of LaGrange, Georgia, for certain gross receipts tax, referred to in your letter of November 8th, and in correspondence with counsel for the Callaway Mills.
The Gross Receipts Tax Act of 1929 lays a privilege tax on account of the business activities enumerated by the Act and measured as provided for by the Act. With respect to manufacturers, the tax imposed for the privilege of carrying on the business of manufacturing is one half of one mill on the dollar, of the value of articles manufactured, as shown by the gross proceeds derived from the sale thereof by the manufacturer.
The question submitted involves the determination of the extent to which receipts from sources other than the sale of manufactured products may be deemed to be covered by the tax which is measured by the value of the manufactured products. The only tax imposed by the Act on manufacturers is measured by the gross value of the product. Payment of this tax, however, does not mean that the manufacturer is exempt from any other tax laid by the Act. In other words, a manufacturer may also be engaged in some other business taxed by the same Act. It seems to me that the proper construction of the Sales Tax Act is that the tax imposed on a manufacturer and measured by the value of the manufactured product, as evidenced by gross sales, should cover receipts from other business activities necessarily and ordinarily incident to the business of manufacturing the particular commodity.
In other words, I think the law contemplates that the tax imposed on manufacturers by the Act should also cover receipts from business activities carried on in connection with the business of manu-

419
facturing and necessarily and ordinarily incidental thereto. I do not think the statute can be construed to mean that the tax imposed on manufacturers shall cover any other business activity from which receipts are actually obtained and which may actually be operated by the particular manufacturer as incidental to his manufacturing business, but which are not ordinarily and necessarily incidental thereto.
Applying this rule to the facts of the particular case: (I) It is my opinion that receipts from Item A, listed in your letter, being receipts from the sale of waste products, are taxable under the Act as a part of the gross proceeds derived from the sale of the manufactured product. I think waste which arises from the process of manufacture and is actually sold, is a manufactured product within the meaning of the Act. (2) It is my opinion that receipts listed in Item B, from houses rented to employees, are not taxable. The business of furnishing houses to employees is ordinarily incidental to the business of operating a cotton mill, since it is the almost universal custom of cotton mill manufacturers so to do, and it is necessary to the retention of labor that the manufacturer furnish houses to his employees. (3) Under the rule stated above it is my opinion that the receipts from the sale of fuel to employees, listed as Item C in your letter, are taxable. I do not think the business of selling fuel to employees at low cost can be said to be ordinarily or necessarily incident to the business of operating a cotton mill. (4) It is my opinion that interest received on accounts arising from the sale of manufactured goods is not taxable. The measure of the tax is the sale price of the manufactured article, irrespective of whether credit is or is not extended. The business of extending credit to the purchaser of manufactured products is necessarily incidental to the business of operating a cotton mill.
(5) I do not think the owning of stock in an independent corporation can be classed as necessarily or ordinarily incidental to the business of operating a cotton manufacturing plant. It is therefore
my opinion that these items are taxable. (6) I do not think that the business of operating a dairy or
laundry for the purpose of furnishing milk and service to employees can be classed as necessarily or ordinarily incidental to the operation of a cotton mill. It is therefore my opinion that receipts from these sources are taxable.
It should be borne in mind, in considering this matter, that a corporation engaged in a manufacturing enterprise may also be engaged in some other enterprise and be subject to taxation under a separate provision of the Sales Tax Act. The fact that these other enterprises may be incidental to the business of manufacturing as actually operated by the corporation is not controlling. In my opinion, the controlling factor is whether such activities are necessarily or ordinarily incidental to the business of manufacturing.

420
CIGAR AND CIGARETTE TAX ACT-Construction of Act in relation to duty of State Revenue Commission in connection with contraband goods
March 16, 1934
Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
Your verbal inquiry as to whether under the Cigar and Cigarette Stamp Tax Act of 1931 (Georgia Laws Ex. Ses. 1931, pp. 11 et seq.) Section 18 gives the Commissioner of Revenue the jurisdiction or authority to waive the forfeiture of the goods in the event that the violation of the law is unintentional, by requiring the offender to affix to all of the contraband goods twice the amount and value of the stamp necessary to represent the tax and cancel the same, where the appraised value of the goods exceeds $100.00, is hereby acknowledged.
In considering this question, as it arises under Section 18, reference should first be made to Section 15, which provides for a forfeiture of cigars and cigarettes possessed in violation of the provisions of this Act. Section 16 makes provision whereby any person, firm or corporation who claims title to or any lien on the goods declared contraband, existing prior to the date of the seizure, may file a claim with the Commissioner or his agent under oath and give bond. Thus from a reading of these two sections, we find the origin of two words which are used and are significant in the construction of Section 18, to wit: "offender and claimant." The name offender is given to one who possesses any cigars or cigarettes in violation of the provisions of this Act, whereas a claimant is a third party who claims title to or a lien upon the goods which have been declared contraband, and who is innocent in that said party has not participated in violating this Act as to said goods.
Under Section 18 it is provided: "Jurisdiction is hereby conferred upon the said Commissioner, (or, if the appraised value of the goods does not exceed $25.00, upon his agent making the seizure), to waive the forfeiture of the contraband goods or any part thereof in the event he shall find that the violation of the law, for which the goods became contraband, was unintentional or without intention to defraud the State of its revenue; provided that the offender shall first affix to all of the contraband goods twice the amount and value of the stamps necessary to represent the tax, and shall cancel the same." (Parentheses ours). Reading the Section with the portion in parentheses omitted, we find that jurisdiction is conferred upon the said Commissioner to waive the forfeiture of contraband goods or any part thereof in the event that he shall find that the violation of the law was unintentional or without intention to defraud the State of its revenue, this waiver of forfeiture to be affected by requiring the offender to affix to the contraband goods twice the amount and value of the stamp necessary to represent the tax and cancel the same. There is no limitation as to amount which restricts this

421
jurisdiction or authority with respect to the Commissioner. However, the language inclosed in the parenthetical clause above does restrict the agent's authority to waive the forfeiture in the manner prescribed by imposing a limit based upon the appraised value of the goods not to exceed $25.00. This limitation of $25.00 does not apply to the Commissioner himself, but only to agent, and, there:fore, the Commissioner under this Section has the authority to waive the forfeiture irrespective of the appraised value of the goods seized in the manner provided by the Act.
As noted above, Section 18 refers to two classes of subjects, offenders as contemplated under Section 15 and claimants as contemplated under Section 16. A method of waiver of forfeiture is prescribed by the first portion of Section 18 as has been discussed above, as applied to offenders. The latter portion of Section 18 confers the power to make compromises with any claimant upon the Commissioner, this authority being limited in the Commissioner to cases where the appraised value of the goods does not exceed $100.00. The statute reads as follows:
"The said Commissioner may make a compromise with any claimant, before or after the claim is filed in court, when the appraised value of the goods does not exceed $100.00." It is further provided: "A record of all such compromises and waivers of forfeiture shall be kept by the Department of Revenue and shall be open to public inspection." Summarizing the jurisdiction, powers and authority conferred by Section 18, it is our conclusion: First, that the agent of the Commissioner making the seizure may waive a forfeiture in the manner provided by the Act where the value of the goods does not exceed $25.00; Second, that the Commissioner may waive the forfeiture of contraband goods in the manner provided by Section 18, no matter what the appraised value of the goods is in amount; Third, that only the Commissioner himself may make a compromise with any claimant and said Commissioner can only make such a compromise with a claimant when the appraised value of the goods does not exceed $100.00.
TAXATION-Duties of Board of Income Tax Review
April 3, 1934
Hon. Paul H. Doyal, Chairman State Revenue Commission Dear Mr. Doyal:
I have your letter of April 2nd in which you state you are receiving applications for refunds of income tax paid under the Act of 1929 on account of dividends of capital stock from National Banks and on account of disallowances in claimed deductions of Federal income taxes.

422
You are correct in your statement that the ruling of the Court of Appeals holding that the State cannot legally tax dividends received on shares in National bank stock has become final. The recent ruling by the Supreme Court in answer to certified questions in the National Biscuit Company case, holding that Federal income taxes constituted allowable deductions under the Act of 1929, is now pending in the Supreme Court on a motion for rehearing.
It is my opinion, upon a careful consideration of the Act of 1929, that no refund can legally be made to any taxpayer except the same be ordered by the Board of Income Tax Review created by Section 7 of that Act. Where a taxpayer has complied with the provisions of Section 4 and either upon an original return, or upon an amended return filed in accordance with the requirement of the Department, claimed that certain items of income were not taxable under the Georgia statutes, he may pay the tax under protest and seek a refund in the method provided by the statutes. When this is done, it becomes the duty of the tax commissioner to refer these claims to the Board of Income Tax Review and it is the duty of that Board to pass upon it and allow or disallow such claims with the right of either party to appeal.
In my opinion the provisions of Section 10 with reference to refund do not establish a separate method for obtaining refunds from that prescribed by Sections 4, 5, 6, 7 and 8. In other words, I think the protest referred to in Section 10 must be as comprehensive as the claim referred to in Section 4.
In every case it would be incumbent upon the Board of Income Tax Review to determine whether the taxpayer has complied with the Act in his claim of exemption.
In my opinion it is the duty of the State Tax Commissioner, now the State Revenue Commission, to refer all of these claims for refund to the Board of Income Tax Review for review.
INCOME TAXATION-Where profit or transaction was earned at sale before taxpayer moved to Georgia, notes for balance of purchase price not taxable in Georgia
May 18, 1934
Hon. John A. Smith, Chief Clerk Income Tax Division State Revenue Commission Dear Mr. Smith:
I am in receipt of your letter of recent date with reference to the income tax returns of Mr. C. S. McCord.
As I understand the matter Mr. McCord was a resident of the State of Missouri during the year 1932 and while a resident of that State he sold certain corporate stock on which he received a profit.
Forty per centum of the purchase price was paid in cash and the balance became due in instalments. Before all of the instalments matured or were collected Mr. McCord moved to the State of Geor-
1

4~8
gia and is now a resident of this State. You desire to know whether the proportion of the profits received in the sale of stock which took place in Missouri represented in the instalment notes which are now being collected in Georgia is subject to taxation under the Georgia Income Tax Act.
It is my opinion that this income is not subject to taxation in this State. The general rule, of course, is that the taxable situs of intangibles is at the domicile of the owner. The profit on the transaction was earned in the State of Missouri when the sale was made. This being true the instalment notes which had their taxable situs transferred to Georgia by the removal of Mr. McCord to this State do not represent in this State income earned or received by virtue of the sale of the corporate shares but instead represent capital assets removed to Georgia. The Georgia statute permits a taxpayer who sells property on the instalment plan, receiving 40% or less of the purchase price as the initial payment to include the profit in that portion of any instalments falling due in the subsequent year in the income earned for that year. This provision of the statute, however, cannot operate to bring within the taxing jurisdiction of the State income which was not within the jurisdiction of the State at the time it was earned. The income arising to Mr. McCord by virtue of the transaction referred to was earned at the time of the sale of the stock when his profit was realized.
I do not mean to hold that any interest Mr. McCord may receive on these instalment notes is not taxable in this State. In my opinion it is taxable in this State. I do mean to hold, however, that he is not taxable in this State on the profit received from the sale of corporate stock at a time when he was not a resident of this State or within the jurisdiction of the State, even though he may not have actually received this profit in cash until after he became a resident of this State.
INCOME TAXATION-Refund of taxes paid on dividends from national banks October 17, 1984
Hon. Paul H. Doyal, Chairman State Revenue Commission Dear Mr. Doyal:
I have your recent request for my opinion with reference to certain applications for refunds of income taxes paid under the Act of 1929, these applications growing out of the recent ruling by the Court of Appeals holding that dividends received from national banks were not taxable under the Act of 1929, and the recent ruling by the Supreme Court holding that profits derived from the sale of capital assets made during the year 1929, but before the passage of the Income Tax Act of 1929, were not taxable.
You are familiar with the relevant provisions of the Act of 1929 which are contained in Sections 4, 6, 7, 8, 9, and 10 of the Act, and it is not necessary to quote them here.

424
Section 4 provides that any taxpayer making a return shall have a right to attach to the return any claim he may choose to make as to any item or items included in his return to the United States which he conceives to be exempt from taxation by the State. The taxpayer is required to make a clear statement of the relevant facts and of his reasons for contending that such item of income is not taxable by the State.
By Section 4 it is required that the tax shall be paid with the filing of the return, as in other cases, on any item which it is claimed by the taxpayer is exempt from taxation by the State.
By Section 7 of the Act, it is provided that whenever any taxpayer makes a claim for exemption as authorized by Section 4, and shall be dissatisfied with the findings of the State Tax Commissioner as to such claim for exemption, the claim shall be referred by the Tax Commissioner to the Board of Income Tax Review, consisting of the Comptroller General, the Attorney General, and the Secretary of State. This section presupposes a disallowance by the State Tax Commissioner, now the State Revenue Commission, of a claim of exemption presented under Section 4, before the matter is referred to the Board of Income Tax Review. I am of the opinion, therefore, that where the claim for exemption is presented with the original return and the tax paid, such claim for exemption must be first passed upon by the State Tax Commission, now the State Revenue Commission. When the State Tax Commissioner has passed upon such claim, it is his duty to notify the taxpayer in writing of his action, if such action is adverse to the taxpayer. If the taxpayer then, within a reasonable time, gives notice to the State Tax Commissioner of his dissatisfaction with the adverse ruling, it is then the duty of the State Tax Commissioner to refer the claim to the Board of Income Tax Review. Since the procedure by which the claim is placed before the Board of Income Tax Review is not by way of appeal, but by way of a reference to the Board by the Commissioner, the only action necessary to be taken by the taxpayer is to notify the Commissioner of his dissatisfaction with the adverse ruling. While the Act does not expressly so provide, and no time which this notice must be given is stipulated by the Act, I am of the opinion that it must be given by the taxpayer within a reasonable time after he receives notice of the adverse ruling of the Commissioner. I am also of the opinion that a review of the ruling of the Tax Commissioner by the Board is not precluded hr. any lapse of time after notice of dissatisfaction is presented to the Commissioner.
In those cases where a claim for exemption was submitted with the original return, and such claim for exemption has not been passed upon by the State Tax Commissioner, I am of the opinion that the State Revenue Commission may now pass upon and determine such claims, and in a proper case, order a refund of the tax paid. If action now taken by the State Revenue Commission is adverse to the taxpayer, a notice thereof should be given to the taxpayer in order that he may have opportunity by giving notice of dissatisfaction to require a reference of the case to the Board of Income Tax Review.

425
I am further of the opinion that where the State Tax Commissioner has passed upon and disallowed a claim for exemption, he has no further jurisdiction of the matter but may yet refer it to the Board of Income Tax Review, if the taxpayer, within a reasonable time after notice of such adverse ruling, gave notice of dissatisfaction therewith. If the taxpayer failed to give notice of dissatisfaction; then the ruling by the State Tax Commissioner became final and the Board of Income Tax Review would have no jurisdiction to allow a refund.
I am further of the opinion that except where the payment of income taxes was made in response to an additional assessment, the claim to exemption must have been presented with the original return, or with the amended return upon which the payment was made. There is nothing in the statute which would authorize a taxpayer to file an amended return for the purpose of claiming exemption on account of income taxes already paid, and I am of the opinion that the State Revenue Commission has no authority to allow such an amendment.
In cases where the tax was not paid with the original return, and no complaint for exemption was presented with the original return, but the tax was thereafter paid, upon an additional assessment, made by the State Tax Commission, I am of the opinion that such additional assessment amounts to a requirement for the payment of the tax, and takes the case from within the rule stated by Section 4. In those cases it is necessary only that the payment of the additional assessment be made under protest. This protest must have been made in writing, and where filed in writing, at the time of the payment of the tax required to be paid on an additional assessment, it amounts to both a claim to exemption, and a notice of dissatisfaction, with the Commissioner's ruling. In those cases, the Commissioner, having once passed upon and determined the question, has no jurisdiction to further consider it but must refer the claim to the Board of Income Tax Review. Where a protest was filed in writing at the time of the payment of such additional tax, no burden rests upon the taxpayer to present his claim to the Board of Income Tax Review, but it is the duty of the Commissioner to refer it to the Board and the State Revenue Commission may now do so. In most cases where the taxpayer paid the additional tax assessed without filing a protest in writing, I am of the opinion that such payment was voluntary and that neither the State Revenue Commission nor the Board of Income Tax Review has jurisdiction to refund the same. I am also of the opinion that where no protest in writing was filed at the time of the payment of such additional tax, the taxpayer is not now authorized to amend his return for the purpose of seeking a refund.
Under Section 10 of the Act, provision is made for the payment of 7% interest on any sum improperly required of a taxpayer. It is my opinion that under this Section any refund ordered to be made will bear interest at 7% from the date of payment of the tax.

426
Section 11 of the Act provides for the setting up of a special fund for the payment of refunds. I am informed that it has heretofore been the practice of the State Revenue Commission, when refunds are ordered, to make a requisition upon the Governor for such funds and that the Governor issue his warrant upon the Treasurer for the necessary amount, which is deposited by the Commission in a special account, and the refund is made by check. I am of the opinion that the special fund provided for by Section 11 of the Act never becomes a part of the general funds of the State and when placed in the Treasury are held there for the purposes provided by this section. I think, therefore, that the Constitutional provision which prohibits the paying of funds out of the Treasury without an appropriation has no application to this particular fund. The procedure which has been heretofore followed by the Commission is, I think, authorized.
INHERITANCE TAX ACT-Interest does not accrue until after assessment, if at all November 30, 1934
Hon. Paul H. Doyal, Chairman State Revenue Commission Dear Mr. Doyal:
I have your letter of even date with reference to the estate tax due on the Estate of a resident of Georgia who died May 28, 1931. You state that the time for making return has been extended from time to time by the Federal and State authorities and that the representatives of the estate now tender to the State Revenue Commission payment covering 80% of the principal amount assessed by the United States. You desire to know whether or not the Federal authorities can collect interest on this tax from the date the same should have been paid, and if so at what rate and whether the amount due the State should be determined by taking 80% of the principal amount due the United States or 80% of the principal and interest due the United States. You also desire to know whether or not, in the event I determine that the United States cannot or does not collect interest, the State is entitled to interest on the amount ascertained to be due it.
In my opinion the question of whether or not the Federal Government is entitled to collect, or may collect, interest on the amount due it, is not material to the question before you. This is true for the reason that the Georgia Inheritance Tax Act of 1925 as amended requires the representative of the estate to file with the State authorities a duplicate of the return required to be filed with the Federal authorities. It thereupon .becomes the duty of the State authorities to
"Compute the amount that would be due upon said return as federal estate taxes under the Act of Congress relating to the levy and collection of federal estate taxes upon the property of said estate taxable in Georgia, and assess against said estate as a State inheritance tax 80% of the amount found to be due for Federal estate taxes,"

427
It is provided by the Federal Act that in making a return for taxation under the Federal Estate Tax Law the representative of the estate may take credit for the amount paid to the State as inheritance taxes, provided such amount does not exceed SO% of the amount of the tax accruing to the Federal Government under the Federal law. The amount assessed by the State authorities under the Act does not constitute the assessment of a tax based on the Federal law, but the assessment of a tax based on the State law, which is measured by the tax levied by the United States. The State authorities are not dependent upon any assessment made by the Federal authorities before proceeding to collect the tax.
It is expressly provided by the Act of 1925 that in the event of failure to pay the amount assessed within six months after notice it shall be the duty of the proper authority to issue execution against the Estate, which execution shall be enforced by levy and sale.
There is no provision of the Inheritance Tax Act which requires the payment of interest on the amount so assessed.
Section 1144 of the Civil Code (Section 92-7601, Code of 1933) provides for the payment of interest on executions issued for taxes to the State or any county thereof, and that when such executions are issued they shall bear interest at the rate of 7% per annum from the time fixed by law for issuing the same. It has been held by the Supreme Court that no interest accrues under this section under an assessment for taxes and that no interest can be collected until an execution has been issued; but that when the execution is issued it bears interest from the time fixed by law for issuing the same.
There is an amendment to the ad valorem tax laws making ad valorem taxes bear interest from December 20th of each year, but I do not think this applies to special taxes.
The general provisions of law which make liquidated demands bear interest do not, in my opinion, have application to the instant matter, since as I understand your letter the amount of taxes due on this estate has just been assessed. I am of the opinion that under the statute the amount of tax due the State of Georgia is SO% of the principal amount found to be due the Federal Government without calculating interest thereon. If any interest should hereafter accrue it would not be by virtue of any provision of the Federal Act but by virtue of the ascertainment of the amount due the State under the State law.
PROFESSIONAL TAX-Veteran holding disability certificate not exempt July 1, 1933
Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of July 1st requesting an opinion as to whether or not a disabled veteran, holding a certificate of disability from the Ordinary, is exempt from the payment of the tax imposed by Paragraph 3 of Section 2 of the General Tax Act upon persons practicing the professions therein enumerated.

428
The statute exempting certain disabled or indigent veterans from license taxes is contained in Section 1888 of the Civil Code of 1910 as amended, (Section 84-2011, Code of 1933). That section provides that veterans coming within the exempted class who comply with the provisions of law regarding certificates of disability "may peddle or conduct business" without paying license for so doing.
It has been the uniform rule of the Courts of this State and of other States that statutes of that character must be strictly construed. So, construing Section 1888 of the Civil Code, it is my opinion that a person practicing one of the professions upon which a tax is laid by the General Tax Act is not peddling or conducting business within the meaning of said Section 1888, and that said section does not exempt a veteran from the payment of professional tax.
Whether or not what is stated above would apply to a Confederate veteran engaged in the practice of medicine would depend upon whether the Confederate veteran came within the provisions of Section 995 of the Civil Code, (Section 84-909, Code of 1933). That section authorizes Confederate soldiers "who are on the indigent pension roll of this State" to practice medicine without being subject to any tax therefor. Section 995 does not, however, have application to veterans of other wars.
OCCUPATION TAX-Collection agency
February 26, 1934 Hon. R. E. Matheson State Revenue Commission
Dear Mr. Matheson: Yours of the 23rd instant requesting an opinion as to whether the
Credit Adjustment Agency, Inc., is subject to the occupation tax as levied under Paragraph 6 of the General Tax Act, has been received.
Paragraph 6 of the General Tax Act provides: "Upon every person, firm or corporation engaged in business as a collecting, commercial, mercantile, or any other agency of like character, $200.00 in every county in the State where they have an office or branch office. Provided, that any attorney at law, or firm of lawyers, opening a collection agency, and who shall employ solicitors and collectors, or who shall advertise as collectors or as a collecting agency, shall be liable for said tax regardless of having paid their regular professional tax." It is therefore my opinion that any person, firm or corporation who advertises in the city directory or telephone directory as a collection agency, and handles collections for jobbers, wholesale houses and manufacturers, and employs a manager for this department who does nothing else but run a collection business, is subject to the occupation tax as imposed under Paragraph 6 of the General Tax Act. We think this is true, even though the concern handles collections

4~9
only for jobbers, wholesale houses and manufacturers, for the tax is imposed upon commercial agencies of a like character as general collection agencies. It is also imposed upon attorneys at law or firms of lawyers who advertise as collectors or as a collecting agency.
OCCUPATION TAX-Dealers in automobiles and trucks
August 22, 1934
Hon. R. E. Matheson
State Revenue Commission
Dear Mr. Matheson: I have yours of the 20th instant requesting an opinion as to wheth-
er, under Paragraph 11 of the General Tax Act, which lays a tax upon persons dealing in automobiles and trucks and provides that "Such license shall entitle such dealer to sell any makes of new or second-hand automobiles or trucks, and shall entitle said dealer to operate, in connection with said business, a service station in said county in which said license is paid", and further provides "The service station under this paragraph includes work done only on the makes of cars sold by the dealer under this tax, within the county wherein such tax has been paid", a dealer may service only the makes of new cars which he sells, without being subject to the garage tax as laid under Paragraph 17 of the General Tax Act.
You state that your department has construed this Paragraph to allow the dealer to service only the makes of new cars that he sells and not any second hand automobiles or trucks which the dealer may have taken in on trade-ins and resold.
It is my opinion that payment of the license tax laid under Paragraph 11 entitles a dealer "to sell any make of new or second hand automobiles or trucks" and to service any of the makes of cars sold by the dealer under this tax, both new and second hand. All tax statutes must be strictly construed in favor of the taxpayer and the language "makes of cars sold by the dealer under this tax" would include, in our opinion, all makes of cars sold by the dealer, both new and old. I think the legislature intended to allow a dealer paying this tax the right to service cars of every make sold by such dealer without the payment of a garage tax, provided the car serviced was sold by the dealer. A dealer could not service a make of a car, such as Chevrolets, where the car to be serviced was not actually sold by the dealer paying the tax, without payment of a garage tax, even though such dealer is a Chevrolet dealer. In other words, the only servicing of cars which may be done by a dealer paying the license tax laid in Paragraph 11 is that done "in connection with said business", "said business" necessarily referring to the new or second hand automobiles or trucks sold by the dealer. The servicing of cars not sold by the dealer, although the dealer may sell the same make of car as the car serviced, could not be a service in "connection with the business" for which the license is granted.

480
OCCUPATION TAX-Corporation repossessing cars, hiring a person to sell' or trade them; such person subject to tax on used car dealers
April17, 1938
Hon. R. E. Matheson, Commissioner State Revenue Commission My dear Mr. Matheson:
Your letter of April 7th, stating that The Automobile Financing, Inc., discount notes for automobile dealers and frequently are forced to repossess cars, the makers of the notes having defaulted in their payments, and that after these cars are repossessed, for obvious reasons, they do not care to advertise the repossessed cars in their own name for resale, and have made it a practice to hire a person on salary, or commission, or both, to dispose of the cars which they were forced to repossess, and that in disposing of these cars, it sometimes becomes necessary to trade for other cars, received.
You inquiry is, would the person who conducts this business for The Automobile Financing, Inc., be subject to tax under Paragraph 12, which levies a tax on used car dealers.
In reply we are of the opinion that such a person would be subject to such a tax under Paragraph 12 of the Tax Act, which levies a tax on used car dealers.
It is our opinion that when The Automobile Financing, Inc., trade repossessed cars for other cars, and in turn sell or trade them, they are used car dealers, and this would be true, even though they sold the cars outright, and the party operating on a salary, or commission basis, or both, selling repossessed cars for The Automobile Financing, Inc., would be subject to the.tax as a used car dealer.
OCCUPATION TAX-Wholesale and retail dealer at same address subject to tax as both wholesale and retail dealer levied under Paragraphs 13 and 14 of the General Tax Act
May 22; 1933 Hon. R. E. Matheson, Commissioner State Revenue Commission Dear Mr. Matheson:
Your letter of May 20th is acknowledged. You request us to advise you whether or not a person who has paid the $100.00 tax as wholesale dealer on auto tires and accessories required by Paragraph 13 of Section 2 of the General Tax Act, and who conducts a retail business, selling tires and accessories at retail at the same address, would have to pay the tax as a retail dealer, as provided by Paragraph 14 of Section 2 of the General Tax Act. In answer to this query, this is to advise that I am of the opinion that such person would be subject to the tax imposed by both of the paragraphs.

481
Where one engages in such business as a wholesale dealer, he is liable for the tax as such, and where that same person is also a retail dealer, he would be liable for the tax on retail dealers.
I am of the opinion further that the fact that both the wholesale and retail business might be conducted at the same address w<;mld not have any bearing on the liability of the payment of the tax. .
OCCUPATION TAX ON AUTOMOBILE GARAGE&-Person carrying tools, etc., in truck, and having no fixed place of business, subject to tax
July 21, 1933
Hon. W. B. Harrison, Comptroller General Dear Mr. Harrison:
I have your letter of the 21st inclosing a letter from Hon. A. E. Davison, Tax Collector of Clarke County, in which he states:
"We have a party here who is doing automobile repairing and regular service from a big truck in which he carries his tools, etc. "I am inclined to believe he is subject to the garage tax under Section 17, but would like to have your opinion on it. "The truck in question stays parked on a vacant lot, inside the City limits." You request an opinion as to whether or not the person referred to by Mr. Davison is subject to the tax levied by Paragraph 17 of the General Tax Act upon automobile garages. This section provides as follows: "Upon each person, firm, or corporation carrying on the business of operating garages, either for storage or repairing automobiles, in cities of more than .S5,000 inhabitants, $75.00; in cities between 20,000 and 35,000 inhabitants, $50.00; in cities between 10,000 and 20,000 inhabitants, $25.00; in cities and towns of 1,000 to 10,000 inhabitants, $15.00; in cities and towns of less than 1,000 inhabitants, $5.00; and persons operating such garages within one mile of the limits of all incorporated cities, $5.00." Under the facts related by Mr. Davison, in my opinion, the person referred to is subject to this tax. It seems to me that he has a regular place of business and parks his truck in which he carries his tools, etc., regularly on a vacant lot in the city limits of Athens. This being true, I think he is operating on that lot an automobile garage for repairing automobiles within the meaning of Paragraph 17 of the General Tax Act. It is not necessary that the repairing of automobiles be conducted within a building in order to make the establishment a garage, since the tax is laid upon the business so operated and not upon the building.

432
OCCUPATION TAX ON BILL DISTRIBUTORs-Definition of Bill Distributor
April 3, 1938
Hon. W. B. Harrison Comptroller General
Dear Mr. Harrison: I have your communication submitting a letter from Hon. W. S.
Richardson, Tax Collector of Fulton County, which is as follows: "Will you kindly secure a ruling from the Attorney General for definition of Section 26 of the Tax Acts of 1929 covering 'Bill Distributors?' Would an individual, firm or corporation delivering their monthly statements to customers come under this section or would a messenger service of a Telegraph Company who are sometimes employed to distribute various and sundry notices and advertisements come under it?" Paragraph 26 of the General Tax Act provides as follows: "Bill Distributors. Upon all bill distributors and parties engaged in the business for profit in towns or cities, $25.00; provided, this tax is limited to cities of 15,000 population or more." In my opinion, the term "bill distributors" means persons, firms
or corporations engaged in the business of distributing by hand circulars and similar advertising matters for others.
In my opinion, a corporation doing business and which hands the monthly statements to its customers is not a bill distributor within the meaning of this paragraph. I am of the opinion that a telegraph company or other messenger service employed to distribute various and sundry notices and advertisements for others is a bill distributor within the meaning of this section.
I do not think, however, that a monthly statement of an account, such as mercantile establishments regularly send out to their customers each month, is a bill within the meaning of this paragraph. In my opinion, the "bills" referred to are circulars or similar advertising matter.
OCCUPATION TAX-Dealers in stocks or bonds
June 21, 1933 Hon. R. E. Matheson State Revenue Commissioner My dear Mr. Matheson:
In re: Solomon Brothers and Hutzler, Atlanta, Ga., Stock and bond matter.
Your letter of June 20th is acknowledged. You requested that we advise you whether or not, under the statement of facts contained in Mr. Newman's letter of June 19th the above mentioned concern is due the tax imposed under Paragraph 29 of the General Tax Act.

488
Paragraph 29 of the General Tax Act imposes a tax of $100.00 upon each person, firm or corporation dealing in bonds or stocks either exclusively or in connection with other business. The tax of $100.00 is imposed for each town or city in which such person, firm or corporation maintains an office.
Under the statement that "this concern does not deal in stocks ~nd bonds in Georgia; that they do not buy nor sell stocks and bonds in this State; that stocks and bonds which are sold to residents of Georgia are sold on orders accepted and confirmed in and from New York; that the sole activities of the agents of said concern in Georgia consist of soliciting orders which are forwarded to New York for acceptance", we are of the opinion that the tax is not collectible under the paragraph referred to.
Under the ruling of the Supreme Court of this State in the case of American Mills Company vs. Doyle, 167 S. E. 312, I am of the opinion that the transaction referred to in the above quoted paragraph is one of interstate commerce.
If, in this case, the contract is for the sale of stocks and bonds, and contemplates delivery to the buyer in another State after an acceptance of the order there, the transaction would be one of interstate commerce.
If orders are solicited for the sale of stocks and bonds in this State, and after having been taken in this State, they are then transmitted to New York, where said orders are accepted and confirmed, and where, after they have been so accepted and confirmed, a delivery is contemplated to the buyer in this State, and the delivery is actually made to the buyer in this State, we are of the opinion that the transaction would not be one of interstate commerce, and the concern would not be exempt from the provisions of the section referred to. Therefore, since I am not acquainted with the fact as to delivery of the securities, I am not in position to give you a definite answer to your questions.
It must be borne in mind that under this section the tax imposed is a privilege tax and is not a sales tax directly levied on the proceeds of interstate commerce as such.
If you will submit to me the additional facts involved in the transaction, I shall be glad to advise you further.
TAXATION-Where tax officer accepts payment of taxes in full and later a new assessment is made, State not estopped from collecting additional taxes
November 17, 1934 Hon. R. E. Matheson, State Revenue Commissioner
Dear Mr. Matheson: I have yours of the 15th instant enclosing copy of a letter of Hon.
William F. Buchanan, relative to the occupation tax due by the Pig'n Whistle Corporation and Brass Rail, Inc.

In his letter, Mr. Buchanan raises the point that if the tax authorities have made an assessment and collected the tax, they could not then be permitted to go back and collect additional taxes where all facts were made known to them at the time. I cannot agree with Mr. Buchanan in his contentions in this respect. We can find no authority given the tax collector under the law to accept less than the actual amount due as occupation tax as a full settlement. If the tax collector, under a mistake as to the total amount of tax due by the taxpayer, accepts less than the full amount due in settlement of a fi. fa., and issues his receipt for the tax paid, it is my opinion that the public would not be estopped by the receipt, for it is provided in Civil Code Section 303 (Section 89-903, Code of 1933):
"Powers of all public officers are defined by law, and all persons must take notice thereof. The public cannot be estopped by the acts of any officer done in the exercise of a power not conferred." Under the General Tax Act, the tax on cafes and restaurants is made payable to the tax collectors of the various counties and it is provided by Section 6 of this Act:
"That the taxes provided for in this Act shall be paid in full for the fiscal year for which they are levied, and annually thereafter; and, except where otherwise provided, said taxes shall be paid to the tax collectors of the county where such vocations are carried on, at the time of commencing to do business . . . ."
As stated above, no authority is given in the General Tax Act nor in the general law authorizing a tax collector to make a compromise or settlement with a taxpayer for less than the full amount of the tax legally due and payable.
The fact that the tax collector has accepted part of the tax as full payment and issued his receipt accordingly does not alter the case, for a tax receipt, like other receipts for money paid, is only prima facie evidence of payment and may be explained.
"The fact that the taxpayers had paid all that portion of the levy which the tax collector, under the order or resolution referred to, was directed to collect, and held the collector's receipt, would not have the effect of relieving them of obligations to pay the full amount which had been regularly and legally imposed by the levy of August 29, 1934."
See Johnson v. Pinson, 127 Ga. 144; Georgia v. The Southwestern Railroad Company, 70 Ga. 11; and State Revenue Commission v. National Biscuit Company, 175 S. E. 368, (Advance Sheet for Sept. 6, 1934).
I am enclosing you herewith an extra copy of this opinion for your convenience, to be mailed to Mr. Buchanan if you so desire.

435

OCCUPATION TAX-How computed for more than one place of business for Pig'n Whistle

Hon. R. E. Matheson,
State Revenue Commissioner Dear Mr. Matheson:

March 26, 1934!

Yours of the 23rd instant requesting an interpretation of Paragraph 32 of the General Tax Act, as applying to the operations of the Pig'n Whistle which operates several lunch rooms or cafes at different locations in the city and claims that they are due to pay only one tax based upon the total number of stools and tables used in connection with the business, has been received.
As you know, the law imposes the tax "upon every person, firm, or corporation, except hotels, operatinff any cafe, restaurant, or lunch room" and the same is graduated in accordance with, and the liability for the tax measured by the number of stools, seats or tables in the various cafes, etc.
It is my opinion that the clause "operating any" cafe, etc., as used in the Act is used in the sense of "each". It seems that there could be no other reasonable construction of the Act, in view of the fact that the number of tables or seats or stools at each place of business must be determined in order to arrive at the proper measure of liability for the tax to be paid by the owners. Therefore, I agree with you that the tax should be measured by the number of stools or tables used at each location, instead of grouping them.

OCCUPATION TAX ON COMMERCIAL REPORTING AGENCIE8-Dixie Contractor Publishing Company not subject
September 21, 1934 Mr. R. E. Matheson Revenue Commissioner Dear Mr. Matheson:
I have yours of the 19th instant requesting an opinion as to the liability of the Dixie Contractor Publishing Company for the tax as laid under Paragraph 42 on commercial reporting agencies.
Paragraph 42 provides: "Commercial reporting agencies. Upon each person, firm or corporation engaged in the business of a commercial reporting agency, in each county in the state where they have an office or branch office, $225.00." I note from the file and exhibits attached that this concern publishes weekly publication known as the "Dixie Contractor", and to certain of its clients furnishes a daily report of construction contracts which are open to bids, for the information of the contractors who subscribe to this publication. The material contained in the daily reports, as well as in the weekly publication, is a mere summary of the contracts which are to be let, giving the date of letting, the

486
address of the owner and a rough sketch of the materials necessary to be used on the contract. No information is furnished the subscribers as to the financial standing or credit rating of the owner for whom the contract is to be performed.
A commercial or mercantile agency has been defined as: "A person, firm or corporation engaged in the business of collecting information as to the financial standing, ability, and credit of persons engaged in business, and reporting the same to subscribers or customers applying and paying therefor. Special commercial or mercantile agencies are those which confine themselves to reporting a particular business, such as furniture, stationery, jewelry and hardware." (40 C. J. 636). Since the information or news incorporated in the Dixie Contractor and the daily reports does not indicate or furnish any information or facts as to the financial ability, standing or credit of the persons, firms or corporations named in the items published, I therefore agree with you that this company is not subject to the tax as imposed under Paragraph 42 of the General Tax Act.
OCCUPATION TAX ON CORPORATIONS-A business corporation owned exclusively by a disabled veteran, not exempt from corporation taxes
January 13, 1933
State Revenue Commission State Capitol Gentlemen:
I acknowledge receipt of letter addressed to you by Honorable E. M. Wyatt of LaGrange, Georgia, under date of January 12th, inquiring as to whether or not a business corporation chartered by the Superior Court and owned exclusively by a disabled veteran can be operated by said veteran, tax free, where the veteran has obtained a disability certificate from the Ordinary.
Answering this inquiry, I beg to advise as follows: I presume in using the expression "tax free" that Mr. Wyatt refers to the operation of such a corporation without the necessity of paying the capital stock tax and any occupation tax which might be due on the particular occupation engaged in by the corporation. The exemption from the payment of occupation taxes by disabled veterans is provided for by Section 1888 of our Civil Code and applies only to veterans. Of course, a corporation is not and cannot be a veteran. While tax statutes are to be construed liberally against the government and in favor of the taxpayer, this rule does not apply to exemption from taxation. On the contrary, since taxation is the rule and exemption from taxation is the exception, in order to obtain exemption a taxpayer must show specific authority therefor, and statutes granting exemption from taxation arc strictly construed. Of course, a corporation is an artificial person, separate and distinct from its stockholders, and even though all the stock of the

487
corporation is owned by a disabled veteran, who if dealing in his individual capacity might be exempt from certain occupation taxes, the corporation when conducting the same lines of business would be taxable.
I return herewith Mr. Wyatt's letter and am sending you an extra copy of this opinion in order that you may forward the same to Mr. Wyatt if you so desire.

OCCUPATION TAX-Tax voluntarily paid by corporation which never functioned as a corporation cannot be refunded

July 6, 1933

Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
Your letter of June 29th enclosing copy of letter written by Farmers Gin and Warehouse Company of Blakely, Georgia, is acknowledged.
You state in your letter that the Farmers Gin and Warehouse Company of Blakely, Georgia, paid $10.00 domestic corporation

tax, and $5.00 penalty thereon, in May, 1930, and that the manager of that corporation contends that it has never functioned as a corporation.

I note from Mr. Maddox's letter that a charter was granted to the

corporation, but that the organization of the corporation was never perfected and that the business had never been operated as a corporation.

Under the General Tax Act as amended in 1931, corporation tax is

imposed upon every domestic corporation incorporated under the

laws of Georgia. In 1929 the tax was imposed upon such corpo-

rations incorporated under the laws of Georgia and doing business

therein. It will be noted that by the amendment of 1931, the words

"and doing business therein" were stricken from this section as it

existed prior to that time. I respectfully refer you to Section

993(213) of the 1930 supplement to Michie's Georgia Code for the

Act of 1929. I also refer you to Section 993(213) in the 1931 supple-

ment to the Georgia Code for the provisions of the Tax Act as now

in force. This amendment was passed at the 1931 extra session.

See Acts 1931, Extra Session, page 76.



Therefore, since the passage of the amendment of 1931, passive existence on the part of the corporation is all that is required to make it liable for the payment of the tax. Prior to that time, the corporation had to be organized and doing business before it became liable for the corporation tax imposed by the section referred to.

From the facts in this case, it appears that at the time the tax was collected from the Farmers Gin and Warehouse Company of Blakely, Georgia, the Act of 1929 was in force, and if this corporation was not organized and doing business at that time, it should not have paid
the tax.

438

The General Tax Act unfortunately does not give authority to

the State Revenue Commission or the tax collecting agencies to re-

fund taxes voluntarily paid. This is an unfortunate situation, for

in some instances the taxpayer voluntarily makes payment of taxes

under a misapprehension as to the law.

The provisions of Code Sections 1101 to 1104 of Michie's Code of 1926, (Sections 92-6501 to 92-6504, Code of 1933), provide for the

correction of mistakes in tax receivers' digests. Since these sections refer to ad valorem taxes, and since they do not refer to the

question of voluntary payment, I do not think that they could be made applicable in this case.

By Section 4317 of the Code, (Section 2o-1007, Code of 1933),

it is provided that:



"Payments of taxes or other claims, made through ignorance of

the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent prac-

tice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate

necessity therefor, or to release person or property from detention,

or to prevent an immediate seizure of person or property. Filing

a protest at the time of payment does not change the rule." If this tax was not legally due, but was voluntarily paid by the taxpayer in this instance, it is unfortunate that there is no provision of law authorizing that it be refunded.

On the facts submitted, it does not appear that there was an

urgent and immediate necessity for the payment, or that the pay-

ment was made to release the personal property from detention, or to prevent an immediate seizure of the personal property, and therefore, payment was evidently a voluntary one.

I am not passing upon the question as to whether or not this

party should have paid the taxes which were collected in May, 1930, since all of the facts are not given in his letter. If the corporation

was never completely organized, and as such had never functioned,

then payment for tax should not have been made voluntarily. Our courts have spoken on this question, and there is no course left for me except to follow the law as interpreted by them.

In First National Bank of Americus v. Mayor of Americus, 68

Ga. 119, it is held that:



"The coercion or duress which will render a payment involuntary,

must in general consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exact-

ing or receiving the payment over the person or property of

another, from which the latter has no means of immediate relief other than by making payment."

The general rules laid down by our Court which would authorize a recovery of taxes are as follows: First, it must appear that the tax was unauthorized. Second, that it was paid under compulsion to prevent the immediate seizure or sale of plaintiff's goods or arrest

of his person. Third, voluntary payment accompanied by protest

will not suffice.

439
See Calloway v. City of Milledgeville, 48 Ga. 309; Hoke v. City of Atlanta, 107 Ga. 416.
A rule laid down upon which a tax may be recovered is found in the case of Dennison Manufacturing Company v. Wright, 156 Ga. 789. The payment made under the circumstances related in that case was an involuntary one.
The particular tax in question has been allocated, paid out, and used by the public, and since it appears from the facts now in hand that the payment was voluntarily made, and since the law does not make any specific provision for the refund of this tax, I do not think there is authority for refunding the tax referred to. I would be glad i it were possible for me to hold otherwise, if it should appear that the tax in this case was not due by the taxpayer.
OCCUPATION TAX-No tax collecting agency of the State may relieve a taxpayer o penalty provided by law on domestic and foreign corporations and occupation taxes when the tax is delinquent
July 6, 1933
Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
Your letter of June 30th in which you ask the question quoted below is acknowledged.
The question: "Has a tax collector or any tax collecting agency o the State any authority under the law to relieve a taxpayer of the penalty provided by law on domestic and foreign corporations and occupation taxes when the tax is delinquent?"
The answer to the above question is no. In explanation of this answer, I wish to say that the tax imposed by Paragraph 44, Section 2 of the General Tax Act on domestic corporations incorporated under the laws of Georgia, and the tax impose~ by Paragraph 5 of Section 2 of the General Tax Act on foreign corporations doing business or owning property in this State, are required to be paid annually. Upon payment of said license or occupation tax, a certificate or duplicate receipt is issued for each Agent in the several counties of this State, that the corporation tax provided for has been paid.
By the provisions of the last paragraph of Paragraph 44, Section 2 of the General Tax Act, domestic corporations are required to make a report to the Comptroller General on or before the first day of January each year, upon forms furnished for that purpose, and by the provisions of sub-section S of Paragraph 45a, of Section 2 of the General Tax Act, foreign corporations doing business in this State are likewise required to make a report to the Comptroller General on or before the first day of January each year, upon forms furnished by him. These reports contain detailed information as set forth in the sections referred to.

440
By the provisions of sub-section 4 of said Paragraph 45a, if any corporation shall fail to make the reports when required, said corporation shall by that fact become liable for 10% of the face value of said tax as added penalty to be collected in the same manner as the tax itself is collected.
By the provisions of Section 35 of the General Tax Act (amendment of March 31, 1931), should any of the taxes herein imposed remain due and unpaid for ninety days from the date thereof, such person, firm or corporation shall be subject to and shall pay a penalty of 20% of the tax imposed.
By the provisions of the above sections providing for penalties, the penalty itself is to be collected as a part of the taxes and become in fact a part of the tax itself. The law is explicit in fixing the penalty and in describing the conditions under which penalties arise.
In my opinion, if the conditions are such that the penalty attaches, in that event no tax collector or any tax collecting agency of the State has any authority of law to remit the penalty, there being no specific provision in the law authorizing such.
OCCUPATION TAX ON CORPORATIONS-Delinquent corporation taxes remitted to Delinquent Tax Division of Revenue Commission by tax collector
July 19, 1938 Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
The press of business in my office incident to pending litigation has delayed an answer to your recent letter enclosing a communication from Hon. John L. Cabell, Tax Collector of Chatham County.
Mr. Cabell refers to Paragraph 44 of the General Tax Act under which the corporation taxes are payable to the Comptroller General. He desires to know whether or not, where such taxes have become delinquent, remittance should be made to the Comptroller General or to the Department of Revenue.
As you know, the delinquent tax division of the State Revenue Commission has no authority to collect taxes which are not delinquent. When taxes become delinquent, then the delinquent tax division is authorized to make collection, and it would seem from the language of the Act creating the Department of Revenue that the authority of the delinquent tax division then becomes exclusive. The authority of the tax collector to collect delinquent taxes is contained in that portion of the Revenue Act which requires the tax collectors to co-operate with the Department of Revenue, now the delinquent tax division of the State Revenue Commission. I think, therefore, that when a tax collector collects corporation tax which is delinquent he should account for same and make his remittance to the delinquent tax division of the State Revenue Commission.

441

I note Mr. Cabell states in his letter that some of the taxes yet to

be collected are for years prior to 1930 and some of the taxes are for years during which the authority to make these collections was vested

exclusively in the Comptroller General. He desires to know what

commissions the tax collector is entitled to on corporation tax col-

lections for those vears.

' .

My recollection ~f the law is that the commissions allowed tax

collectors under the original Tax Act of 1927 for collecting corpora-

tion taxes was 10%. This being true, I think if a tax collector now

collects corporation tax which accrued for the years prior to 1930 he

would be entitled to commissions at that rate.

By the Act of 1929 the authority to collect corporation tax was

vested exclusively in the Comptroller General. This amendment applied only to the corporation tax for the year 1930. Under the

law, therefore, the only authority a tax collector has for collecting

corporation tax for 1930 is found in the Act of 1923 creating the

Department of Revenue which requires the tax collector to co-operate

with the Department of Revenue in making collections of delinquent

taxes. The section which is quoted in my letter to you of April 18,

1933, provides that where delinquent taxes are collected directly

by the tax collector, he shall be entitled to a commission not to exceed 10% as provided by law. As stated in my former letter, this

section did not purport to fix the commissions of the tax collectors,

but to place a limitation thereon. Under the General Tax Act of

1927 the commissions of tax collectors are generally fixed at 10%.

There was no provision of law reducing this commission as applied

to any particular tax until the Act approved March 31, 1931, fixing

a different scale in the case of corporation taxes. Since the tax col-

lector was authorized, after corporation tax for 1930 became delinquent, to collect the same for the Department of Revenue, and since

the only provision of law regulating commissions on special taxes

was the provision fixing the rate of 10%, I think where a tax col-

lector now collects delinquent corporation tax for 1930, the State

Revenue Commission would be authorized to allow him a commis-

sion of 10% on such collections. With reference to the commissions of the tax collectors for delin-
quent corporation taxes for the year 1931 and subsequent years the

question is controlled by my former letters to you on this subject.

Whether or not the Amendatory Act of 1931 fixing the scale of

commissions allowed tax collectors on account of the collections of corporation taxes could be construed to be retroactive, I think the

scale fixed applies to all collections made subsequent to its passage,

all taxes to which the Amendatory Act applied, and I think it applied to all outstanding unpaid corporation taxes for 1931 at the time of its passage.

The questions Mr. Cabell asks are not without doubt or difficulties and the opinion given you, in so far as it relates to corporation taxes for 1930 or prior years, is not altogether satisfactory to myself. It might well be said that the intent and purpose of the General As-

sembly in providing a new scale of commissions for corporation

44~
taxes, as was done by the Act of 1931, was that the scale fixed should apply to all collections thereafter made by tax collectors, whether delinquent or not, and no matter for what years. You will thus see that I have resolved whatever doubt I had on the subject in favor of the tax collectors. In doing so I think the interests of the State are best subserved, since the State is in large measure dependent upon the tax collectors for the collection of these special corporation taxes, delinquent and otherwise, and it would not seem to be fair to them to restrict them to the new scale of commissions unless the intent of the General Assembly so to do was plain and clear.
OCCUPATION TAX-Mutual building and loan associations not having capital stock not subject to corporation taxes
February 12, 1934 Hon. R. E. Matheson, State Revenue Commissioner Dear Mr. Matheson:
Since rendering our opinion of January 16th, last, relative to whether the building and loan associations are subject to the payment of occupation taxes upon the capital stock of the associations, it has come to our attention that a great many of the building and loan associations of this State have no capital stock. Therefore, we desire to supplement our opinion of the 16th ultimo as follows:
It is our opinion that those building and loan associations which have capital stock are subject to the payment of occupation taxes as imposed under Paragraph 44 of the General Tax Act, the rate of tax for which they are liable being determined by the amount of issued capital stock. Those mutual building and loan associations which do not have any capital stock of course are not subject to the payment of the tax as imposed under Paragraph 44.
Please attach this supplemental opinion to our opinion of January 16th, in which opinion the fact was assumed that all mutualbuilding and loan associations have a capital stock.
January 16, 1934 Hon. R. E. Matheson, State Revenue Commissioner My dear Mr. Matheson:
Yours of the 12th instant requesting an opinion upon the question whether Section 12, page 56, of the General Tax Act exempts building and loan associations from the domestic corporation tax as imposed under Paragraph 44 of the General Tax Act, received.
Paragraph 44 of the General Tax Act, as contained in Georgia Laws, Extraordinary Session, 1931, p. 76, provides as follows:
"All corporations incorporated under the laws of Georgia, except those that are not organized for pecuniary gain or profit, in addition to all other taxes now required of them by law are

443
hereby required to pay each year an annual license or occupation tax as specified in the following scale." It is my opinion that the only domestic corporations which are exempt from the occupation or license tax as is imposed under this Section are "those that are not organized for pecuniary gain or profit", and a mutual building and loan association would not come within this classification of exemption. Section 12 of the General Tax Act of 1927 (Ga. Laws, 1927, p. 100) provides: "Be it further enacted by the authority aforesaid that mutual building and loan associations operating only in the county of their charter, and limiting loans only to members, shall not be assessed on their capital loans to stockholders or members thereof." It will be noted that this section exempts only the "capital loans" from ad valorem taxes. The legislature made no attempt to exempt a mutual building and loan association as described in Section 12, from the operation of an occupation tax for doing business, the rate of the same being based upon the amount of issued capital stock. It is, therefore, my opinion that a mutual building and loan association is subject to the occupation or license tax as specified in Paragraph 44 of the General Tax Act.
OCCUPATION TAX ON CORPORATIONS-All corporations existing in State subject; not necessary to do business
March 15, 1934
Hon. Robert N. Hitch Hitch, Denmark & Lovett 17 Drayton Street Savannah, Georgia
Dear Mr. Hitch: Yours of the 8th instant relative to the liability of the Southern
Building Products Corporation for occupation or license tax for the years 1931 and 1932, has been received.
The fact that you have intrusted the final determination of this matter to my ruling makes me the more loath to decide adversely to your contentions which were so well presented in your letter. I esteem very highly the confidence reposed in me and trust that I shall not abuse or betray the same. However, I am faced with the plain and unyielding provisions of the law relative to this matter and must be governed by the same.
The question, as I see it, resolves itself to this: Can the State tax a domestic corporation for the privilege of holding a franchise or charter granted it by the State, where said corporation does not exercise the powers and privileges granted under the charter; the corporation merely existinf! and not doin!ff any business or owning any property. If the law as it was passed in 1927 levying a tax on domestic corporations (See Ga. L. 1927, p. 69, Par. 44) had not been

444
changed or amended, I could readily agree with your contentions. In 1927 the Act read: "All corporations incorporated under the laws of Georgia shall, except those that are not organized for pecuniary gain or profit, and those that neither charge nor contemplate charging the public for service rendered, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale." The Act of 1929, as contained in Georgia Laws, 1929, page 85,
Paragraph 4, amended the above provision only by adding the phrase "and doing business therein" after the words "all corporations incorporated under the laws of Georgia."
While the law existed as above stated, the same was tested in the case of Harrison v. Forsyth-Hunter Company, 174 Ga. 640, and the court made a ruling clarifying the phrase "doing business" as contemplated in this statute. It is very probable that this decision brought about the amendment of 1931 (Ga. Laws 1931, p. 76, Par. 44), which now reads as follows:
"All corporations incorporated under the laws of Georgia, except those that are not or!Janized for pecuniary gain or profit, in addition to all other taxes now required by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale."
Conditions contained in the Acts of 1927 and 1929 relative to doing business in the State are the charging or the contemplation of charging the public for service rendered and were omitted from the Act of 1931. It will be further noted that the only requirement which subjects a domestic corporation to the tax under the Act of 1931, is that the corporation be "incorporated under the laws of Georgia", and that the only exemption allowed by the Act extends to those corporations "not organized for pecuniary gain or profit." I feel there is no dispute as to the fact that the Southern Building Products Corporation was organized "for pecuniary gain or profit", and this corporation does not fall within the provisions of the exceptions allowed by law. Therefore, it is my opinion that the Act of 1931 does subject a corporation incorporated under the laws of Georgia to the payment of the tax for the mere right of existence, irrespective of the exercise or failure to exercise the rights and privileges granted to it under its charter.
I note that you contend that the tax as imposed is for a license or occupation tax, both of which terms carry the idea of doing and not merely being. It is true that each of the several acts in question contain the words "annual license or occupation tax." N otwithstanding this language, it is my opinion that this tax partakes of the nature of a franchise excise tax. The tax, as you know, is graduated and computed in accordance with the amount of issued capital stock of the corporation. It is not in any manner dependent upon the amount of business done by the corporation in the State of Georgia, and is determined by no other factor than that of the amount of issued capital stock.

445
It occurs to me that if the legislature had intended to tax domestic corporations upon the amount of business done or the net income of the corporation, the computation of the amount of liability of the corporation for said tax would have been based and graduated in accordance with these factors.
The legislature in 1931 imposed the tax in clear and unambiguous terms upon "all corporations incorporated under the laws of Georgia for pecuniary gain or profit", with a capital stock of named and fixed amounts.
"The character of the tax depends upon the legislative intent as expressed in the statute imposing it, and in determining such intent, the practical operation of the statute and its actual effect are persuasive circumstances. But the substance of the statute and its incidents and attributes, control, rather than the name f!iven to the tax by the lef!islature, althouf!h the legislative designation is an important factor in determining the question." (61 C. J. 75, Sec. 6.)
Even though the legislature used the language "Annual license or occupation tax", it is my opinion that by these terms the legislature meant to impose a franchise excise tax, or a license fee upon such corporations for the right of existing and enjoying the protection of the laws of Georgia and the privilege and right to at any time exercise the powers granted to it in its charter. Whether the corporation exercises any of the powers granted by the charter is discretionary with the corporation and its officers. Its failure to exercise the rights and privileges and powers under its charter cannot divest the corporation of its liability for the tax imposed upon its right to exist and to be under the charter granted it by the sovereign power of the State.
"Nothing can be more certain in legal decisions than that the privileges and franchises of a private corporation may be taxed, the manner and method being in the control of the State, subject to its constitutional limitations. The franchise to be a corporation is one distinct from the franchise to do business as a corporation the former belonging to the corporators and the latter to the corporation, and each may be the separate subject of a tax." (61 C. J. 253, Sec. 242). Adams Express Co. v. Ohio State Auditor, 17 Supreme Court, 604; Memphis & L. R. R. Co. v. R. R. Commission, 28 L. Ed. 837; London & San Francisco Bank v. Block, 117 Federal, 900; Southern Ry. Co. v. Green, 160 Alabama, 396.
Whether or not the corporation, to be liable for the franchise tax, must be doing business within the State, depends upon the terms of the particular statute and 'it is clear to my mind that under the Georgia statute the tax is imposed irrespective of any business done within the State.
"Where the tax is considered as being one upon the right or privilege, the exercise thereof is not necessary for liability for the tax to attach against the corporation, if it maintains its corporate organization; and certainly this is so if the tax is on the franchise

446
to be a corporation. . . . . Dissolution alone relieves a corporation from liability for the franchise tax in such a case." (61 C. J. 256, Sec. 246.) See Providence Mfg. Corporation v. Downey Ship Bldg. Corp., 8 Fed. Reporter, 2nd Series, 304; People, ex rei, Clarrebelle Dresses, Inc. v. State Tax Commission, 234 New York Supplement, 140; New York v. Jersawit, 263 U. S. 493; Northern Nebraska Power Co. v. Holt County, 235 N. W. Reporter, 92 (5). In all of the above cases the court held that the franchise of the corporation was subject to taxation, though there was no present exercise of existing franchise rights. It was said in the Clarrebelle Dresses case, cited supra, in headnote 3: "Under tax law, Section 209, as added by Laws 1917, c726, a domestic manufacturing corporation is liable for franchise tax whether or not it exercises franchises during tax year; liability not being based on actual exercise of franchises but on privilege of exercise of franchises in State." As stated above, if our law had not been amended by omitting the term "doing business therein", there would be no doubt that a corporation carrying on no other activities than those of the Southern Building Products Corporation would not be subject to the tax as imposed in Paragraph 44. Doing business was formerly one of the essentials to subject a corporation to the tax, but by the Act of 1931, this requirement has been eliminated. In an opinion of November 23, 1933, this department, in construing the Act of 1931, used the following language: "Since the amendment of 1931, it is only necessary that a corporation have legal existence for the object of pecuniary gain to its stockholders in order to subject it to the tax." I regret that I cannot conscientiously agree with your contentions.
TAXATION-Property of Ware Institute of Music not used for purposes of private or corporate profit or income not subject to ad valorem taxation
April 14, 1934
Hon. William B. Harrison, Comptroller General Dear Mr. Harrison:
I have your communication enclosing a letter from Mrs. J. A. Rollison of Waycross, Georgia, and requesting an opinion as to whether or not the property belonging to Ware Institute of Music or used by the Ware Institute of Music is exempt from ad valorem taxation.
In reply, I beg to advise that under the Constitution of this State the General Assembly is authorized to exempt from taxation
"All institutions of purely public charity; all buildings erected for and used as a college, incorporated academy, or other seminary of learning, and also all funds or property held or used as endow-

447

ment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; and

provided, further, that said exemption shall only apply to such

colleges, incorporated academies or other seminaries of learning as are open to the general public; .... provided the property

so exempted be not used for purposes of private or corporate

profit or income."



Pursuant to this constitutional authorization the General Assembly enacted Section 998 of the Civil Code, (Sections 92-201,

92-202, Code of 1933), which is substantially in the language of the

constitutional provision and provides an exemption of property used

by colleges, incorporated academies, and other seminaries of learning, "Provided the above described property so exempted be not used for purposes of private or corporate profit or income; and all

laws exempting property from taxation, other than the property herein enumerated, shall be void."

In the case of Brenau Association v. Harbison, 120 Ga. 929, the Supreme Court held as follows:

"Property of a corporation having a capital stock formed for the 'business' of conducting an educational institution, and which has the absolute ownership of all the realty and personalty employed in such enterprise, with the right to convey it at will and to make any desired disposition of the income derived from the

fees charged for tuition and board, is not exempt from taxation,

under the Political Code, Section 762." In the case of Linton v. Lucy Cobb Institute, 117 Ga. 678, the

Supreme Court held that the exemption authorized by the Con-

stitution and provided by the Code Section referred to, was not defeated by reason of the fact that tuition fees were charged where the fees themselves were not used for the purpose of private or corporate profit or income but were appropriated to the maintenance of the institution.

I note from an examination of the charter of this corporation, a copy of which you enclose, that it has no capital stock and is not

empowered to declare dividends and is authorized to charge only moderate tuition fees to be collected, not for the purpose of private or

corporate profit or income, but only in amounts sufficient for and to be appropriated to the maintenance of the institution, the charter expressly providing that no profits or dividends shall accrue to the incorporators.

Under these circumstances it is my opinion that any property owned by this corporation and actually used by it in furtherance of

the purpose for which it was organized is exempt from taxation. I

have some doubt as to whether a corporation chartered solely for the purpose of "rendering an advanced musical education of the

highest type", is a college, incorporated academy or other seminary of learning within the meaning of the Constitution. However, I have resolved that doubt in favor of the taxpayer.

Another and different question is presented, however, if the property which is being used by this corporation does not belong to it

448
but belongs to some other person. Such, I am informed, is the case. If this be true, it is my opinion that the property is not exempt from ad valorem taxation. I do not think the owner of property can defeat the right of the State to collect taxes thereon by granting a mere permissive user in an educational institution. This question was considered by the Supreme Court in the case of Gainesville v. Brenau College, 150 Ga. 159. The earlier case of Brenau Association v. Harbison, 120 Ga. 929, dealt with the same property as was dealt with in the Brenau College case. In the first case the property was owned by Brenau Association, a corporation which had the right to charge tuition, and had the right to devote its receipts to corporate and private purposes. The Supreme Court held the property was not exempt from taxation. Thereafter, Brenau Association conveyed the property in question to Brenau College, another corporation, which did not have the right to devote its income to corporate or private purposes. The question involved in the case reported at 150 Ga. 156 was whether under the conveyances executed the title remained in Brenau Association, the court assuming that if the effect of the deed from Brenau Association to Brenau College was not to convey the title to the property to the latter institution, it would remain subject to taxation.
I am of the opinion that if this property is not the property of the Ware Ins.titute of Music but is merely being used by that corporation under permission granted by the owner, it remains subject to taxation.
It will be noted that the constitutional provision referred to deals with "all buildings erected for and used" as a college, etc. In my opinion, the clear intent of this provision was to authorize the General Assembly to exempt only such property as was owned by such an educational corporation as therein described, and actually used by such corporation in its corporate activities.
From what is stated above I am constrained to hold that if the property in question belongs to the Ware Institute of Music it is exempt from taxation. If it does not belong to the Ware Institute of Music but is owned by some other person, it is not exempt from taxation.
CORPORATION TAX-Liability of Georgia Railroad and Banking Company only upon so much of its capital stock as is not exempted
May 26, 1934 Messrs. Cumming & Harper Attorneys at Law 910 Marion Building Augusta, Georgia Gentlemen:
The press of business in my office has delayed a reply to your letter of May 3rd with which you enclosed a brief on the subject of the exemption from taxation of the Georgia Railroad and Banking Company, and its liability for payment of the corporation tax levied by Paragraph 44 of the General Tax Act.

449
While I have never been able to bring myself to the view expressed by the Supreme Court of the United States in the case of Wright, Comptroller General, v. Georgia Railroad and Banking Company, 216 U. S. 420, 55 L. Ed. 545, I think this decision definitely determines that this corporation cannot, under its charter, be taxed by the State of Georgia in any manner other than that provided for by the Act of incorporation.
The Supreme Court in this case clearly held thut a tax upon the franchise of the Georgia Railroad and Banking Company would amount to an impairment of the obligation of th!al contract between the corporation and the State of Georgia.
In view of this decision I think I am bound to hold that the exemption granted by the charter precludes the levying of a franchise tax against the capital stock of this corporation as authorized by the charter.
It is my opinion, however, and in this you seem to agree, that the exemption does not apply to the 2,000 shares which represent the investment in the Washington branch and in the Clayton project. As to this much of the capital stock of the corporation, it is subject to taxation by the State.
This leaves for determination only the question of whether this tax imposed by Paragraph 44 of the General Tax Act is an occupation tax or a franchise tax. It is my opinion that a State may impose a franchise tax upon corporations created by it regardless of the nature of the business in which such corporation is engaged and even though such a corporation may not be engaged at all but may simply hold the privilege granted to it by the State.
The General Tax Act of 1927 provided that the tax upon corporations should be paid by corporations organized under the laws of this State "and doing business therein", but should not be required of corporations "that are not organized for pecuniary gain or profit and those that neither charge nor contemplate charging the public for services rendered".
In the case of Harrison, Comptroller General, v. Forsyth Hunter Company, 170 Ga. 640, the Supreme Court dealt with a corporation situated identically as the Georgia Railroad and Banking Company is situated and held that the corporation which was doing no business but simply owned certain property which it rented out, was not subject to the corporation tax.
At the next session of the General Assembly following this decision by the Supreme Court, the General Assembly amended the General Tax Act by striking from Paragraph 44 the words "and doing business therein", and the words "and those that neither charge nor contemplate charging the public for services rendered", so that the pertinent provision of the statute is now as follows:
"All corporations incorporated under the laws of Georgia, except those that are not organized for pecuniary gain or profit, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale."

450
It seems to me that the manifest purpose of the General Assembly in thus amending the Tax Act was to require all corporations created under the laws of this State to pay the tax imposed, not for the privilege of carrying on any business or occupation, because the amendment expressly eliminated the language of the statute which required that the corporation be engaged in business in order to subject it to the tax, but for the privilege of owning and holding the corporate franchise granted by the State. I think any other construction would destroy the purpose and intent of the General Assembly in thus amending the law. It is true that the statute uses the exact language, "an annual license or occupation tax", but I do not think the use of these words can be taken to change the manifest intent of the General Assembly. The General Tax Act, I think, should undoubtedly be classed as a revenue measure, not as an exercise of the police power of the State. But a revenue measure may lawfully include a franchise tax, and I see no constitutional objection to the inclusion of a franchise tax in a general revenue act.
Since the Act expressly requires all domestic corporations to pay the amounts provided for, whether such corporations engage in business or not, and since the General Assembly manifestly would have no authority to impose such tax strictly as an occupation tax, I think we must necessarily construe the law to levy these assessments as taxes on the franchises granted by the State.
Thus construing the law it is my opinion that the Georgia Railroad and Banking Company is subject to the tax levied by Paragraph 44 of the General Tax Act upon so much of its capital stock as is not exempted by the terms of its charter.
OCCUPATION TAX-A foreign corporation, not subject to tax if doing only interstate business
October 13, 1933
Hon. Wm. B. Harrison Comptroller General Dear Mr. Harrison:
Your letter of October 3rd with reference to the Skyland Stages, Inc., of Asheville, North Carolina, is received. I have carefully noted the contents of the brief submitted to you by counsel for this corporation.
As I understand the facts, this corporation has an office in the City of Augusta, and keeps an agent there who sells tickets for transportation from Augusta to points in other states. I understand that the corporation is not engaged in intrastate transportation, but is engaged entirely in conveying passengers into the State of Georgia from other states and from the State of Georgia into other states, and that it sells no tickets from Augusta to points within the State of Georgia. Under this state of facts, this corporation is engaged exclusively in interstate commerce, and is not sub-

451
ject to the tax imposed on foreign corporations by the General Tax Act.
The Supreme Court so held in the case of Dennison Manufacturing Co. v. Wright, 156 Ga. 789. In that case, it was held that the agent of a foreign corporation doing exclusively an interstate business :was not subject to the license imposed by the General Tax Act of 1918 "upon every agent or representative of any foreign or non-resident corporation, said agent or representative having a place of business or office in this State". In the opinion in that case, the Supreme Court said:
"Ii the purpose of the Legislature by this Act was to impose an occupation tax upon a foreign corporation engaged solely in interstate commerce, it would be void because of the interstate commerce provision of the Constitution, and the exaction of an occupation tax thereunder from such corporation would be illegal." Under this ruling, Skyland Stages, Inc., if it is doing only an interstate business, cannot be required to pay a tax imposed on foreign corporations.
OCCUPATION TAX-A corporation having more than two agents or places of business in this State required to pay $1.00 for each duplicate certificate above two
May 1, 1934 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have yours of the 28th instant enclosing letter of Mr. R. J. Hudson, Treasurer of the Southern Grocery Stores, Incorporated, dated April 21st, and letter of Mr. Hughes Spalding, dated April 25th, relative to whether or not a corporation having more than two agents or places of business in this state is required under Section 45A, sub-section (h) and 45A (2) to pay $1.00 for each duplicate certificate above two.
The relevant portion of Paragraph 45A (1) provides: "Upon payment of said license or occupation tax (as provided in Paragraph 45) the Comptroller General shall furnish to said corporation a certificate or duplicate receipt for each agent in the several counties of this state that the corporation tax herein provided for has been paid." (Parentheses ours). Sub-section (h) of this paragraph requires the corporation to furnish the Comptroller General "the name and location of its officers in this state, and the name and address of the officers or agents of the corporation in charge of its business in this state." Under Sub-section (h), when the report of the corporation is filed with the Comptroller General, said official is enabled thereby to determine the manner of operation of the corporation within the state. That is, it may be determined from this report whether the corporation has more than two places of business or agents within the state,

452
and under Section 45A (1) the Comptroller General, with this information, should then furnish to said corporation a certificate or duplicate receipt "for each agent in the several counties".
Paragraph 45A (~) provides: "When any corporation paying this license or occupation tax requires or demands more than two duplicate certificates for agents, . . . . to pay an additional fee of $1.00 for each duplicate certificate or receipt over and above the first two mentioned."
This provision does not make it optional with the corporation as to the number of duplicate receipts to be obtained from the Comptroller General. If by reference to the report of the corporation, or by the manner of operation of the corporation, it is determined that said corporation has more than two agents or places of business within the state, then the law requires and demands of the corporation a payment of $1.00 for each agent and a duplicate receipt or certificate is required to be issued under the provisions of Paragraph 45A (1) "for each agent in the several counties" where such corporation has an agent or place of business. It is the manner in which the corporation operates its business which determines the number of certificates required or demanded by the corporation under the law. If the corporation has only two agents within the state, then the requirements or demands of the law are met upon the payment of the tax imposed by Paragraph 45. If it has more than two, then a certificate or receipt, upon the payment of $1.00, must be furnished to each agency or place of business.
OCCUPATION TAX ON HOTELS-Manner in which conducted and not number of rooms governs liability for tax
March ~5, 1933
Hon. R. E. Matheson State Revenue Commissioner
.My dear Mr. Matheson: Your letter of March ~4th enclosing copy of letter from Mr. T. W.
Tift under date of March ~3rd is acknowledged. Mr. Tift states in his letter that the Colonial Inn is a small room-
ing house, and contends that as such, and since it is a rooming house with less than twenty-five rooms, it is not subject to the tax under Paragraph 55 of the General Tax Act, which levies a tax on hotels.
You state that it is the contention of the Revenue Commission that it is the method in which the business is conducted, rather than the number of rooms, that determines whether or not they come within the provisions of the General Tax Act.
In the opinion of this department, you are correct in this contention. I do not know of any law which requires that an inn shall operate as many as twenty-five bedrooms before it could be classified and taxed as a hotel.

453
The particular paragraph (Paragraph 55, Section 5!) of the Act provides:
"Upon every person, firm or corporation operating a hotel, in counties of less than 30,000 inhabitants, 50 cents per annum for each sleeping room." In the case of Robert Bonner v. 'Velborn, 7 Ga. 296, our Supreme Court held that the words "Tavern" and "House of entertainment" were synonymous and were intended to mean "Common Inns" of the common law. The character of the business and the manner of conducting same controlled, and nothing whatever was said about the number of rooms. (See pages 304-307). A hotel has been defined in many authorities of other jurisdictions, which are in harmony with the Georgia decision above quoted, and the general definition given it is a place where the proprietor makes it his business to furnish food and lodging, or both, to travelers; a place for the general entertainment of travelers and strangers, and it is nonetheless a hotel, although in some respects it may be conducted differently from other hotels, so long as it is held out to the public as a place of entertainment and care of transient persons who may have occasion to patronize it. See 77 Mo. Appeals, 596, 599; also 46 Mo. 493; 7 Ga. 296, 334, 337. In our opinion the party is subject to the tax.
OCCUPATION TAX-Liability for dealer in domestic ice machines tax
March 4, 1984 Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
Your letter of February 28th requesting an opmwn as to the liability for the special tax on domestic ice machines under the facts stated in the letter of the Henry L. Reid Company, Inc., has been received.
It will be noted that Paragraph 69 imposes the tax upon manufacturers, wholesalers or retail dealers in, or agents for the sale of domestic ice machines . . . . for each place of business in this State.
It is my opinion that if A rents space in a store operated by B for the purpose of displaying electric refrigerators and offers to pay B a commission on the refrigerators sold through the efforts of B, such an operation would constitute "a place of business in this State" and B would be acting as an agent of A.
The courts have variously defined the term "place of business", and a rather comprehensive interpretation of this term is found in 48 C. J. 1213 (3), a part of which we quote:
"A place devoted by the proprietor to the carrying on of some form of trade or commerce; a place where people generally congregate for the purpose of carrying on some sort of traffic, or where people are invited or expected to come to engage in some sort of mercantile transaction; a place where a calling for the purpose of gain or profit is conducted."

454
Also in the case of Roberts v. the State, 46 Ga. Appeals, 207 (4), this phrase was defined as follows:
"A public place of business, in contradistinction to a private business, a place where the public, having business with the owner, are impliedly or expressly invited for its transaction." Also, it was held in the case of Kerley v. New England Company, 109 N. E. 171, as follows: "One has a place of business where he has an office or known and settled place of business for the transaction of his moneyed concerns, and one may have a place of business which is not exclusively his own, when he is allowed to occupy offices of another, and where he receives business calls and directs them to be made." Therefore, it is my opinion that these parties are subject to the tax as imposed under Paragraph 69 of the General Tax Act, on the place of business in the store of B.
OCCUPATION TAX-Classification of automobile radios
March 29, 1933 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of March 28th enclosing a communication from the Ford Motor Company, in which you request an opinion as to the proper classification of automobile radios under the General Tax Act as amended.
Section 79 of the General Tax Act lays a tax upon each person, firm or corporation engaged in the business of selling or renting, as agents or dealers, graphaphones, organs, phonographs, pianos and victrolas, radios and radio supplies. Paragraph 13 lays a tax upon wholesale dealers in automobile tires, and automobile accessories of any kind whatsoever. Paragraph 14 lays a tax upon retail dealers in automobile tires and automobile accessories.
An accessory is defined in Bouvier's Law Dictionary as "anything which is joined to another thing as an ornament and to render it more perfect."
An automobile radio may or may not be an ornament to the automobile. It certainly has nothing to do with the mechanical operation of the automobile. However that may be, even if an automobile radio could be classified as an automobile accessory, it is nevertheless and notwithstanding a radio.
In my opinion, dealers in automobile radios are dealers in radios within the meaning of Paragraph 79 of the General Tax Act and taxable under the provisions of that paragraph.

455
OCCUPATION TAX ON PEDDLER8-Rolling stores
November 8, 1933
Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
Yours of the 3rd instant, together with enclosures, has been received. You enclose a letter in which it is stated that a certain person has been operating two or three grocery trucks or "rolling stores" so called, for around eighteen months without paying a peddler's license tax as laid under Paragraph 84 of the General Tax Act.
You desire to know whether, under the facts stated above, such a party would be liable for a peddler's license tax under Paragraph 84. Paragraph 84 of the General Tax Act provides as follows:
"Upon every peddler or traveling vendor of any patent or proprietary medicine or remedies, or appliances of any kind, or special nostrum, or jewelry, or stationery, or drugs, or soap, or of any kind of merchandise or commodity whatsoever (whether herein enumerated or not), peddling or selling any such goods or articles or other merchandise, in each county where the same or any of them are peddled, sold or offered for sale, $50.00. . . . . " Also, under sub-section (e) of Paragraph 84, the term "peddlers" is defined as follows: "The term 'peddler' is hereby defined as follows, to wit: Any person carrying goods, wares or merchandise of any description with him, other than farm, orchard or grove products, either in a pack or vehicle of any character whatever, and who makes delivery of goods ordered on the day of taking orders, shall be held and deemed a peddler, whether such sales are for consumption or resale. Provided, that the definition of the term 'peddler' as herein used shall not embrace servants, agents, and/or employees of bona fide wholesalers of goods, wares, produce, and merchandise, delivering or selling their goods, wares, produce or merchandise to retailers thereof only." It is my interpretation of these provisions that if a person loads merchandise such as groceries and other articles that are commonly sold in retail stores onto a truck and goes about over the various counties of the State selling these groceries or merchandise directly to the consumer; that is, making delivery of said goods on the day of taking the orders therefor, then such a person comes within the purview of this section of the General Tax Act and his conduct subjects him to the payment of a license fee as imposed in said section. It is, therefore, my opinion that the person described in the enclosed letters is subject to the payment of the license tax.

456
OCCUPATION TAX-Hospitals and clinics
July 11, 1933
Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
This letter is in reply to yours of June 24th enclosing copy of letter. You ask the question as to whether or not, under the statement of facts contained in their letter, they are due the tax imposed by Paragraph 94 of the General Tax Act, which provides for a tax of $100.00 "upon hospitals and sanatoriums, or institutions of like character, whether incorporated or not, conducted for gain." The facts stated in the letter are not complete. The only fact pertinent which is stated in the letter is as follows: "The Crawford W. Long Memorial Hospital is chartered to operate without profit." It will be necessary that we be advised more definitely as to how this hospital is being conducted or operated; whether or not pay patients are received; how the hospital is supported, and specifically as to whether the property is used for purposes of private or corporate profit or income and whether the institution is one of purely public charity, etc. In order that you might definitely understand what I have in mind, I respectfully refer you to the following principles of law: 1. Taxation is the general rule. Exemptions from taxation are the exception. On the question of exemption by the Constitution and statute, the doctrine of strict construction applies. :Mayor et al. Gainesville v. Brenau College, 150 Ga. 156(2). 2. The pertinent language of the Constitution (Code Section 6554) (Section 2-5002, Code of 1933) is: "The General Assembly may by law exempt from taxation . . . . all institutions of purely public charity . . . . . . Provided the property so exempted be not used for purposes of private or corporate profit or income." 8. The pertinent language of the statute, Civil Code Section 998 (Sections 92-201, 92-202, Code of 1933), is: ''The following described property shall be exempt from taxation, to wit: . . . . . . All institutions of purely public charity . . . . . . Provided the above described property so exempted be not used for purposes of private or corporate profit or income." The above provision of the Constitution, not being self-operative, was carried into effect by the provisions of this statute. 4. Therefore, before there can be an exemption, two things are necessary, (a) the institution must be one of purely public charity; (b) must not be used for purposes of private or corporate profit or income.
5. It is to be noted from the above that the Constitution does not exempt anything, but only grants the power to the General Assembly to exempt institutions of purely public charity not operated for purposes of private or corporate profit or income, and expressly denied

457
to the Legislature the power to exempt any other, no matter to whom the institution belongs, whether to a private individual, to a corporation, or to an unincorporated company or association. If such institutions are dedicated to charity and used exclusively as institutions of purely public charity, they are usually exempt. The exemption is squarely on that basis.
In the case of Richardson v. Executive Committee of the Baptist Convention, 176 Ga. 705, it was held by the Supreme Court that, under the construction of the constitutional provisions above quoted and under the construction of the Code Section above quoted, a hospital supported in substantial part by donations and largely by income derived from pay patients received in the hospital is not within the exception stated in the proviso, although the hospital receives without charge certain patients who are unable to pay. In this case, however, the Court was dealing not with license taxes but with property taxes. In that case the corporation involved had no stockholders to reap private gain by corporate profit. The hospital received charitable patients without pay, but also charged for patients able to pay. The income derived from the charge patients was devoted to the purposes of the institution. The holding of the ~ourt was to the effect that such property was used for corporate Income.
In the present case, the provisions of Paragraph 94 of the General Tax Act under which this hospital is sought to be taxed state that the tax is imposed upon hospitals and sanatoriums or institutions of like character conducted for gain. Public hospitals maintained by municipal corporations for charitable purposes only are specifically exempt by the provisions of the section.
Therefore, hospitals other than public hospitals maintained by municipal corporations for charitable purposes only, if exempt at all must be exempt under the proviso, conducted for gain, and this question will necessarily turn upon that identical point.
You can, therefore, readily see that it will be necessary for you to have fuller information as to the manner and method by which the hospital is conducted and operated. The mere statement that it is chartered to operate without profit is not sufficient to exempt it.
OCCUPATION TAX ON HOSPITAL5-Central of Georgia Hospital not liable
April 13, 1933
Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
Answering your letter of the 12th instant, and particularly the letter of the 11th instant attached thereto, from Mr. John L. Cabell, Tax Collector, Chatham County, Georgia, respecting the question of an occupation tax on the Central of Georgia Hospital, this Department begs to advise as follows:

458
Paragraph 94 of the General Tax Act, approved August ~5, 1927, provides for a tax of $100.00, "upon hospitals and sanatoriums, or institutions of like character, whether incorporated or not, conducted for gain", in or near cities of more than ~0,000 population.
This Department does not believe that it was the intention of the Legislature in passing this Act to include institutions of the character of the Central of Georgia Hospital. This hospital is not generally open to the public, in competition with other institutions, but is merely one of the departments of business operated by the Central of Georgia Railway Company. The hospital is maintained primarily for the use and benefit of the employees of the Railway Company. Each of them has the use of its privileges upon the payment of a small monthly sum. This rate or charge is not made to the public generally. Under these facts, it could hardly be said that this is an institution within the meaning of the tax Act "conducted for gain".
In the letter of Mr. T. M. Cunningham, General Counsel, to Mr. Cabell, Tax Collector, it is admitted that the hospital does take some pay patients so that it may not be operated at a deficit. Under one construction this practice would make the hospital subject to the tax. However, even this practice could hardly be construed to make the institution liable as one conducted for gain as required by the Act.
The decision in the case of Richardson, Tax Collector, v. Executive Committee of the Baptist Convention, handed down by the Supreme Court on March 4, 1938, not yet reported in the bound volumes nor in the Advance Sheets, does not seem to change the construction as stated above. The question in the Richardson case related to institutions of a purely public charity type, holding that such institutions receiving "pay patients is not within the exception providing for the exemption from taxation of such charitable institutions". This Department has read the syllabus of the decision in the Richardson case and does not construe it so as to change the conclusions above reached respecting the status of the Central of Georgia Hospital.
OCCUPATION TAX ON UNDERTAKERS-Definition of Undertaker
September ~7, 1984
Hon. R. E. Matheson
State Revenue Commissioner Dear Mr. Matheson:
I have yours of the 21st instant enclosing letter of Mr. R.N. Holt under date of September 14th, requesting an opinion as to liability of certain persons in Hall County who sell coffins to persons in need of same, and then call a man who has a hearse and also an embalmer to bury the dead, for the tax on undertakers as laid in Paragraph 103 of the General Tax Act.

459
Paragraph 103 imposes the tax "upon each person, firm or corporation whose business is that of buryin!} the dead and char!}in!} for same, commonly known as undertakers, etc." An undertaker has been defined as "one whose business is to prepare the dead for burial and to take the charge and management of funerals." (See Black's Law Dictionary, 3rd Edition, page 1776; Anderson v. The State, 19 Alabama Appeals, 606; State v. Whyte, 177 Wisconsin, 541.)
If the selling of coffins to those in need of them is all that these parties do, it is my opinion that they are not subject to the tax imposed on undertakers. However, if these parties, in addition to selling coffins, take charge of the body and management of the funeral, and make a charge in addition to the charge for the coffin for this service, then they are subject to the tax. If these parties dress the bodies for burial, arrange for the funeral and bury the body, looking after all the details of the burial, and make a charge for this service, they are subject to the tax. There is no tax imposed upon persons who merely sell coffins, and if there is no charge made for calling the hearse and employing the embalmer to bury the dead and for making any other arrangements with reference to the funeral of the person for whom the coffin is bought, it is my opinion that these parties are not liable for the tax as imposed in Paragraph 103.
OCCUPATION TAX-Warehouses
June 22, 1933
Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
Your letter of June 20th relative to the Raley Brothers, Inc., matter and which deals with warehouse tax as imposed by Paragraph 105 of Section 2 of the General Tax Act, is acknowledged.
In the letter submitted, it appears that these people operate a warehouse primarily for those whom they represent on a brokerage basis and that they carry a heavy stock of merchandise for different manufacturers who pay to them a flat brokerage rate, which contemplates free storage. It appears from their letter that the brokerage rate is on such a basis as to take care of the storage. It also appears from their letter that a separate storage charge is assessed in some instances upon a part of the merchandise which they carry.
I am of the opinion that it is not necessary that the warehouse be a public one; if they were operating as a private warehouse a separate and distinct charge must be made for all storage and handling. Where the warehouse is operated and used by them for the storage of goods from manufacturers whom they represent on a brokerage basis, and the brokerage paid contemplates a reasonable charge for storage on the goods stored and sold, and where, in some instances,

460
a separate storage charge is assessed, they place themselves within the provisions of the Act.
Under the facts as stated by them in their letter to you under date of June 7th, I am of the opinion that they come within the provisions of the paragraph imposing the tax.
OCCUPATION TAX-Automobile Financing
l\Iarch 6, 1933
Hon. "'m. B. Harrison Comptroller General Dear l\fr. Harrison:
I have your letter of :March 1st enclosing a remittance from Ron. A. E. Davison, Tax Collector of Clarke County. Mr. Davison states that the Motor Finance Company contends that it is not subject to pay the tax imposed by Section 115 of the General Tax Act on its place of business in Clarke County. It is stated that:
"They claim they are only maintaining an office here with a collector, but that the financing is done through the home office in Gainesville, Georgia. They further say that the man they have employed here is largely collecting on loans they have already made." The section of the General Tax Act in question is as follows: "Paragraph 115. Automobile Financing. Upon every firm, person, or corporation engaged in the business of automobile financing, handling notes or any evidence of debt, pertaining to the purchase of automobiles, and the discounts of the purchasemoney notes thereof, a tax of one hundred dollars ($100.00) for each place of business." In my opinion the office maintained by the Motor Finance Company in Clarke County for the collection of notes and other evidences of debt pertaining to the purchase of automobiles is a place of business within the meaning of the quoted provision of the General Tax Act. In my opinion the Motor Finance Company would be due the tax levied by this section for the place of business in Clarke County. In his letter Mr. Davison makes reference to the question of lumber dealers. I assume that this matter is covered by the ruling made in the letter to the Newton Coal and Lumber Company of Griffin, Georgia, referred to in letter of this date to you. I suggest that you send 1\Ir. Davison a copy of that communication.

461
OCCUPATION TAX ON AUTOMOBILE FINANCING-Liability of Auto Finance and Loan Company
June 1, 1933
Hon. R. E. Matheson State Revenue Commissioner Dear Mr. Matheson:
I have your letter of June 1st with reference to the tax on automobile financing companies laid by Paragraph 115 of the General Tax Act. You enclose a letter from l\fr. C. C. Guest, one of your deputies, a letter written by Hon. Thomas H. Milner of Albany to the Auto Finance & Loan Company of Albany, and a copy of the charter of the Auto Finance & Loan Company. You request an opinion as to whether or not, under the facts as outlined by these letters, the Auto Finance & Loan Company is subject to the tax imposed by Paragraph 115.
This section of the General Tax Act is as follows: "Upon every firm, person, or corporation engaged in the business of automobile financing, handling notes or any evidence of debt pertaining to the purchase of automobiles, and the discounts of the purchase-money notes thereof, a tax of one hundred dollars ($100.00) for each place of business." According to the facts stated in the letter from Mr. Milner, the Auto Finance & Loan Company is engaged principally in financing real estate loans, but in connection therewith does purchase notes secured by liens upon automobiles, the payment of such notes being guaranteed by the vendors of the automobiles. While the corporate powers conferred upon this company by its charter are very broad and seem clearly to authorize it to engage in the business of purchasing or discounting automobile notes, I do not think that question is material to the question of whether or not this company is subject to the tax imposed by Paragraph 115 of the General Tax Act. The fact that the Auto Finance & Loan Company is also a building and loan association and is also carrying on a building and loan business, or financing real estate loans, would not exempt it from the tax laid upon persons or corporations engaged in the business of automobile financing or handling notes or other evidence of debt pertaining to the purchase of automobiles. Neither did the fact that the company may or may not be subject to taxation under the law taxing building and loan associations have any bearing upon its liability for the tax imposed by Paragraph 115. Under the facts stated by Mr. Milner, this company is engaged in the business taxed by Paragraph 115 and I think it is clearly subject to the tax therein imposed. Whether it is authorized under its charter to do that business or not, or whether it may or may not be engaged in some other business on account of which it might owe a tax, has no bearing upon the question of its liability for the tax on account of the business it actually is doing. I am returning the papers you sent me.

462
SECURITIES-Assignment transferring undivided interests in oil and gas royalties and delay rentals under mineral leases is a security within meaning of Georgia law
February 17, 1933
Hon. M. C. Bennet, Chief Examiner Securities Division Department of State Dear Sir:
I have your letter of the 16th inclosing a form of assignment used by T. S. Hose in transferring undivided interests in oil and gas royalties and delay rentals due to be paid to him under the terms of mineral leases to be described in the blank contract. You request an opinion as to whether or not such a transaction as that contemplated by the form amounts to a sale of securities and whether or not the instrument is a security within the meaning of the "Blue Sky Law."
The statute defines securities as including "Stocks, bonds, debentures, notes, certificates of participation, certificates of shares of interest, pre-organization certificates and subscriptions, certificates evidencing shares in trust estates or associations, and profit sharing certificates." In Grobey v. The State, 109 Ohio State 543, 546, the Supreme Court of Ohio held that a so-called "membership receipt" issued to a subscriber stating that he was entitled to a "pro rata interest in all earnings and profits of the said syndicate" was a security within the meaning of the Ohio statute. The Ohio statute defined securities as "Stock, stock certificates, bonds, debentures, collateral trust certificates, or similar instruments evidencing title to or interest in property." In 56 C. J. page 76, it is stated that the term "securities" includes in its broadest sense, or in its ordinary acceptance, every interest or right, whether legal or equitable, absolute or contingent, attached to, or which is a charge upon specific property, or which entitles the owner thereof to be paid out of specific property. Under the definitions given above, in my opinion, the instrument you inclose is a security within the meaning of the Georgia law. I do not think the transaction evidenced by the instrument is a sale of real estate. The instrument conveys to the grantee to be named therein an undisclosed undivided interest in certain gas and oil royalties accruing to the grantor and directs the lessee under the oil and gas lease to pay over to the assignee named in the instrument inclosed and proportion of the royalties transferred and assigned. It seems clear that such an instrument is a certificate of interest within the meaning of the Georgia statute and that the transaction is one coming under the regulatory provisions of the "Blue Sky Law."

463
SECRETARY OF STATE-Registration of trade-marks, trade names, etc. with Secretary of State
November 8, 1933
Hon. John B. Wilson Secretary of State
Dear Mr. Wilson: Yours of the 3rd instant received. You state that you have had a number of applications recently for
registration of trade-marks, trade names and labels relating in one way or another to alcoholic beverages, and desire to know whether there is any provision of law by which you may require each and every such application for registration of trade-marks, trade names or labels, to state in their application that such application is not being asked nor will it be used in violation of the Georgia Laws.
The only provision in our Code relative to the registration of trademarks etc. is contained in Section 1989 of Michie's Code of 1926, and Section 1990 (Sections 106-101, 106-102, Code of 1933). Section 1989 provides:
"Whenever any person, association, or union of working men have adopted, or shall hereafter adopt for their protection, any label, trade-mark, or form of advertisement announcing that goods to which such label, trade-mark and form of advertisement shall be attached were manufactured by such person or by a member or members of such association or union, it shall be unlawful for any person or corporation to counterfeit or imitate such label, trademark, or form of advertisement with intent to use the same for the purpose of deceiving the public in the sale of the goods." Section 1990 does not prescribe any qualifications or restrictions upon the right of an applicant to obtain a certificate other than: "No label shall be recorded that would probably be mistaken for a label already of record." My interpretation of these sections is that you could not require any such declaration as that stated in your letter, to the effect that the applicant will not use the registration of the trade-mark, trade name or label as a means of violating the laws of Georgia. I feel that you could not indulge the presumption that an applicant for such a trade-mark is going to use the same for violating the law and for this reason deny him a certificate unless he signed an affidavit denying that the same would be used for an illegal purpose. If he misuses the label or trade-mark or trade name so registered with your Department, this is a matter for our criminal courts and it is not within the province of your office.

464
COMMISSIONS-Duty of Secretary of State and Governor in commissioning county officials
l\Iay 8, 1933
Hon. John B. Wilson Secretary of State
Dear Mr. Wilson: I am in receipt of your letter inclosing copies of two election certi-
ficates transmitted to you as the result of an election held in Gordon County on the 20th day of April, 1933, for tax commissioner of that county.
Each of these certificates purports to be signed by superintendents of the election from a majority of the precincts involved. One of the certificates certifies that Mr. S. G. Young received the highest number of votes, the other certificate certifies that Mr. T. L. Henderson received the highest number of votes. As I understand the matter the certificate certifying that Mr. Young received the highest number of votes is the original certificate transmitted to you, and the same was returned by you to the Ordinary of Gordon County on his request, concurred in by certain of the election managers, in order that what he stated was an error in the return might be corrected.
As I also understand the matter the return certifying the election of Mr. Young is in accordance with the precinct returns transmitted to you. It is not, however, in accordance with the tally sheets of the election as transmitted to you with the last certificate.
You are doubtless familiar with the provisions of Section 82 of the Civil Code (Section 34-1303, Code of 1933) with reference to the manner of conducting elections and the manner of certifying the returns thereof. Paragraph 9 of this section sets forth the method of consolidating the vote of the county. The superintendents who are authorized to consolidate this vote are all, or at least a majority, of the superintendents who officiated at the county site, and at least one from each other precinct. They are required to make two certificates, stating the whole number of votes each person received in the county and to mail one of these certificates, together with one list of voters and one tally sheet from each place of holding the election, to the Secretary of State. The returns to be considered by the superintendents when they make the county consolidation are the certificates provided by Paragraph 7 of Section 82, which sets forth that:
"When the votes are counted out, there must be a certificate, signed by all of the superintendents, stating the number of votes each person voted for received." It has been held that Paragraph 7 is directory and not mandatory, in so far as it relates to the signatures of the superintendents. It was held in Bacon v. Black, 162 Ga. 222. that the superintendents of elections in consolidating the vote of the county, are confined to the sole duty of consolidating the results

465
as disclosed by the returns from the several election districts of the county as the same are signed and returned by the managers thereof.
In the opinion in the case just cited Judge Russell, speaking for the Supreme Court said:
"The Board of consolidating superintendents must ascertain the number of votes cast for each candidate from the certificates returned by the election managers of each district. They cannot go behind these returns except in the instance specified, that is, where votes have been cast by persons who have not paid their taxes." In the case of Deen v. Tanner, 106 Ga. 394, 398, the Supreme Court discussed at some length the duty devolving upon the superintendents who met to consolidate the election returns. The court used this language : "Undoubtedly, when a legal quorum meets and takes final action, it is an end of the matter; but until this has been done, every election superintendent has a right, and is charged with the corresponding duty, to meet with the superintendents and comply with the requirements of law." Under the case just cited I am of the opinion that when a quorum of superintendents of the election, as provided by Paragraph 9 of Section 82, have once met, and have consolidated the returns, and certified the result thereof to the proper official, their jurisdiction is at an end, and they have no authority to hold a further meeting or make a further certification. If, however, there has never been a meeting of a quorum of the election managers as required by Paragraph 9 of Section 82, there has necessarily been no legal certification of the result of the election, and a quorum of such election managers may hold a meeting, which may be participated in by all of the managers of the election, irrespective of whether such managers participated in the first meeting, and at such latter meeting a quorum of the managers as required by Paragraph 9 may certify the result of the election. If the certificate certifying to the election of Mr. Young is a certificate issued pursuant to a meeting of a quorum of the election managers, as required by Paragraph 9, the election managers had no jurisdiction to hold a further meeting or issue a further certificate. If, however, that certificate was not issued at a meeting of a quorum of the election managers as required by Paragraph 9 of Section 82, it is not a valid certificate and has no force and effect whatever.
In my opinion, the proper state authority to receive the return of this election has no jurisdiction to consider either the precinct returns or the tally sheets, but must act in accordance with the certificate showing the consolidated return which was transmitted pursuant to a consolidation of the votes of each precinct at a meeting participated in by a quorum of the election managers as required by Paragraph 9 of Section 82.
As to the duty of the Secretary of State in this matter I have considered the Act of 1918, as amended by the Act of 1921, and have reached the conclusion that it is the duty of the Secretary of State to

466
transmit the returns of this election to the Governor, and that the Secretary of State has no jurisdiction to declare the result of the election but is merely the agency to receive the returns and transmit the same to the Governor. The Act of 1918 (Ga. Laws, 1918, page 154), as amended by the Act of 1921 (Ga. Laws, 1921, page 232), applies only to the returns of the elections for state house officers. This question is settled by the decision of the Supreme Court in McGregor v. Clark, 155 Ga. 377, 384. Accordingly, the Act of 1918 as amended, which purports to authorize the Secretary of State to receive the returns of the election of every civil officer,
"Consolidate the vote and declare the result and certify to the Governor the names of the persons elected", is limited to those civil officers who are state house officers and, therefore, the return of the election of a county officer is not controlled by the Act of 1918 as amended.
The provisions of Sections 80, et seq. of the Civil Code, which relate to the election of members of the General Assembly are made
to apply to elections for county officers by Section no of the Civil
Code. Prior to the passage of the Act approved August 31, 1921, the returns of an election for county officers were made to the Governor. By the Act approved August 13, 1921, (Georgia Laws, 1921, page 91) the word "Governor" was stricken from Paragraph 9 of Section 82 and the words "Secretary of State" inserted in lieu thereof. As has been noted, however, the law makes no express provision with reference to what disposition the Secretary of State shall make of the returns of the election of county officers when they are received by him. However, since such returns were formerly made to the Governor, and since it is the duty of the Governor to commission such officers when duly elected, it necessarily follows that the duty of the Secretary of State, after receiving the returns as provided by Paragraph 9 of Section 82, is the mere ministerial duty of transmitting the return to the Governor. This construction is borne out by the provisions of Sections 121, et seq. of the Civil Code, relating to contested elections, where notice of such contest is required to be given to the Governor.
From what has been stated above, it is my opinion that it is your duty as Secretary of State to transmit to the Governor without any declaration of the result of the election by you, both of the certificates which you have received, together with the precinct returns and the other papers forwarded to you. Upon the receipt of these returns it will be the duty of the Governor to commission the person elected in accordance with the certificate which represents the action of a quorum of the managers of the election as hereinbefore set out. In other words, if the certificate first transmitted to you, which certifies to the election of Mr. Young, represents the action of a quorum of the election managers as required by Paragraph 9 of Section 82, that certificate is conclusive upon the Governor and upon the Secretary of State. If it does not represent action taken by a quorum of the election managers as required by Paragraph 9 of Section 82, then it is without any force or effect whatever, and it would then be the

467
duty of the Governor to commission the officer elected as shown by the second certificate, provided that certificate represents the action of a quorum of the election managers as required by Paragraph 9 of Section 82 of the Civil Code.
Of course, if notice of a contest has been filed with the Governor, the issuance of the commission should be withheld until the contest is determined by the Superior Court in the way and manner provided by law. Neither the Secretary of State nor the Governor is authorized or required to hear and determine election contests. The duty of the commissioning authority is to commission in accordance with the legal and valid certificate of election transmitted by the superintendents of the election unless notice of a contest has been filed.
SECURITIES-Reorganization of Associated Gas and Electric Company is exempt from regulations imposed by Georgia Act
April 3, 1934
Ron. John B. Wilson Secretary of State My dear Mr. Secretary:
I have your letter of April 2nd inclosing communication from Colquitt, Parker, Troutman & Arkwright, Attorneys, with accompanying documents, and requesting an opinion as to whether or not the proposed plan of rearrangement of capitalization of the Associated Gas and Electric Company is an exempted transaction under the provisions of the Georgia Securities Act.
According to the information contained in the letter referred to and the accompanying documents, this corporation has, as I understand, certain fixed interest debentures and proposes to substitute for these obligations (1) fixed interest debentures of Associated Gas and Electric Corporation, a subsidiary of Associated Gas and Electric Company, or, (2) income debentures of Associated Gas and Electric Corporations, or (3) sinking fund income debentures of Associated Gas and Electric Company, the holders of the fixed interest debentures now outstanding, having the option of accepting. either one of the three proposed securities.
I understand that these new securities are not to be sold to the public but are being offered only to the holders of the fixed interest debentures. It is further my understanding that Associated Gas and Electric Company owns all or substantially all of the common stock of Associated Gas and Electric Corporation which is now a subsidiary corporation of the parent corporation whose outstanding fixed interest debentures are to be thus liquidated.
I note that the proposed plan of rearrangement and capitalization has been submitted to the Attorney General of Illinois who has ruled that it comes within the exemption provided by the Illinois Securities Law, which exemption is in language substantially identical with that contained in the Georgia Securities Law. I also note that Judge Kirkpatrick of the District Court of the United States

468
for the Eastern District of Pennsylvania has held that the proposed plan of reorganization is exempt under the Pennsylvania Securities Law.
The Georgia statute provides that: "Capital stock, bonds, or other securities distributed to the security holders or other creditors of a corporation in the process of a bona fide reorganization of such corporation, either in exchange for the securities or claims of such security holders or creditors or partly for cash or partly in exchange for the securities or claims of such security holders or creditors", shall not be subject to the provision of the Georgia law. It is my opinion that the proposed plan is a reorganization of the Associated Gas and Electric Company within the meaning of the quoted provision of the Georgia law and that assuming the bona fides of such reorganization, of which you must be the judge, the transaction is exempt from the regulations imposed by the Georgia Act.
FIRE INSURANCE COMPANIES-Construction of Code Sections and Act regulating the incorporation of mutual co-operative fire insurance companies
:May 2, 1934
Hon. John B. Wilson Secretary of State My dear Mr. Secretary:
I have your letter of April 24th in which you make reference to the Act approved December 18th, 1933, now contained in Section 2388 et seq. (Sees. 56-201, et seq., Code of 1933), of the Civil Code of 1910, and to the Act approved August 17, 1923, regulating the incorporation of mutual co-operative fire insurance companies.
You request my opinion on two questions which will be dealt with separately.
I. The Act approved December 18th, 1893, provides that any number of persons not less than five may form an insurance company. Section 21 of that Act provides that in so far as it is applicable it shall apply to the formation of mutual co-operative fire, life or accident insurance companies. The Act of August 17, 1923, as amended by the Act of 1924, provides that any number of persons not less than twenty, may form a mutual insurance company, etc. You desire to know whether the minimum number of incorporators for a mutual or co-operative insurance company is controlled by the provisions of the Act of 1893 referred to or by the provisions of the Act of 1923, just mentioned.
It is my opinion that it was the intent and purpose of the General Assembly in enacting the Act of August 17th, 1923, to provide a comprehensive system for the incorporation of mutual or co-operative insurance companies. That intention is evidenced by the express provision of the statute which repeals all laws and parts of laws in

469
conflict with the Act of 1923 so far as companies organized under the Act of 1923 are concerned and retains previous laws only in so far as they apply to or affect companies already organized and doing business. I am of the opinion therefore, that since the approval of the Act of 1923, a petition for the incorporation of a mutual or cooperative life, fire or accident insurance company must be brought by not less than twenty persons.
2. You state that Section 8 of the Act of 1893 provided in substance that the rights, powers, and privileges granted an insurance corporation under that Act should not continue for a longer period that fifty years unless the same be continued by the laws of force at the expiration of said fifty years. This provision of the Act was expressly repealed by the Act of 1902 (Georgia Laws 1902, p. 52), and is not contained in the Code of 1910. You desire to know the period for which a company may be chartered under the Act of 1893 as it now stands or whether a charter so granted will be perpetual.
There appears to be no express limitation upon the number of years for which an insurance company may be chartered under the Act of 1893 as amended, or under the Act of 1923. However, Section 2215 of the Civil Code (Sec. 22-702, Code of 1933), provides as follows:
"Continuance-Corporations have continuous succession during the time limited by their charter, notwithstanding the death of their members. Should any charter granted in future by the General Assembly to a private corporation be silent as to its continuance, such charter shall expire at the end of thirty years from the date of its grant." It is my opinion that Section 2215 was designed to restrict the period for which any private corporation might be incorporated under the Georgia Laws, since that act provides that should any charter granted in the State by the General Assembly to a private corporation be silent as to its continuance such charter shall expire at the end of thirty years from the date of its grant. It has not been the policy of this State since the adoption of the Constitution of 1877 to grant irrevocable rights to any corporation. While the charters of insurance companies are not granted by the General Assembly, they are granted by the Secretary of State under regulations authorized by the Constitution to be prescribed by the General Assembly. I do not think the mere absence of express limitations in the Act referred to, could be taken to evidence a legislative intent that the charter privileges authorized to be conferred upon insurance companies should be perpetual. It is my opinion, therefore, that the Acts of 1893 and 1923 must be construed in connection with Section 2215 of the Civil Code and that so construing them, a charter granted to an insurance corporation should not be for longer than thirty years. Of course, any such charter will be subject to renewal.

470
ELECTION-Notice of candidacy filed with Secretary of State under Australian Ballot Law
September ~8, 1934
Hon. John B. Wilson Secretary of State Dear Mr. Wilson:
I have your letter of September ~~nd requesting my opm10n as to the proper construction of the Act of 19~~. known as the Australian Ballot Law, and the provision of that Act for the filing of notices of candidacy with the Secretary of State.
The Act provides, in substance, that all candidates for national and state offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy with the Secretary of State at least thirty days prior to the General Election; that candidates for district and county offices shall file similar notices with the ordinary of the county at least fifteen days before the general election.
In my opinion the words "national and state offices" and the words "district and county offices" should be construed in their usual and ordinary signification. By "national offices" the General Assembly manifestly meant offices created under the Constitution and laws of the United States. It is my opinion, therefore, that candidates for President and Vice President of the United States, United States Senators, and members of Congress, should file notices of candidacy with the Secretary of State. This is true although members of Congress are elected by the voters of their respective districts, since they are national officers within the meaning of the Act.
It is further my opmwn that by reference to state offices the General Assembly meant offices created under the Constitution and laws of the State which are filled by elections by the people of the State as a whole. This would include candidates for Governor and other State House officers, judges of the Supreme and appellate courts, members of the Public Service Commission and the Prison Commission, judges of the superior courts and solicitors general. These candidates should file their notices with the Secretary of State at least thirty days before the election.
By the term "district and county offices," in my opinion the General Assembly meant those offices created under the Constitution and laws of Georgia which are filled by elections participated in only by the people of a district or county. This would include State Senators and members of the State House of Representatives. It is my opinion that candidates for the House of Representatives of Georgia and candidates for other county offices should file notices of their candidacy with the Ordinaries of their respective counties at least fifteen days before the general election; and that candidates for the State Senate should file notices with the Ordinaries of each of the counties composing their respective districts at least fifteen days before the general election.

471
TREASURER-State Treasurer authorized to pay members of General Assembly mileage only upon proper resolution adopted by General Assembly
January 17, 1933
Mr. H. A. Hixon Cashier, State Treasury State Capitol Dear Mr. Hixon:
In your letter of January 16 you ask the following question: "Are the members of the General Assembly legally entitled to mileage as fixed by the Constitution of Georgia both for the ten days special session and for the sixty days regular session?"
Your letter quotes a joint resolution, adopted by the House and Senate, which is as follows:
"Be it resolved by the House, the Senate concurring, that after adjournment of the present ten day session that the General Assembly of Georgia reconvene in regular session at 10:00 o'clock A.M. on the 19th day of January, 1933." The constitutional provision in regard to the pay and mileage of members of the General Assembly is found in Code Section 6454, (Section 2-2001, Code of 1933) which is as follows: "6454. Par. 1. Compensation. The per diem of the members of the General Assembly shall not exceed seven dollars; and mileage shall not exceed ten cents for each mile traveled, by the nearest practicable route, in going to and returning from the capital, but the President of the Senate and the Speaker of the House of Representatives shall each receive not exceeding ten dollars per day." The constitutional amendment as provided under Joint Resolution No. 14, Acts of 1931, p. 1053, and ratified by the vote of the people in the November election, with reference to the sessions of the General Assembly, provides that the General Assembly shall meet on the second Monday in January, 1933, and biennially thereafter on the same date until the day shall be changed by law. Such session shall continue no longer than ten days. This ten day session is called, in the Act, a special session, and the business which may be transacted during this ten day session is limited by the Act. While it is a special session, in the sense that the business it may transact is limited, yet it is really a special regular session, complete at the end of the ten day period, and will adjourn by limitation on January 18, 1933. The provisions of said Act of 1931 in regard to the regular session of sixty days is to the effect that this regular session shall begin on the second Monday after the 4th of July, 1933, and biennially thereafter on the same date until the day shall be changed by law. Such regular session shall continue no longer than sixty days. It is provided, however, in the constitutional amendment of 1931, that the General Assembly, by joint resolution of both Houses, during the special ten day session provided for, and approved by the Governor,

472
may reconvene in regular session at any date prior to the regular date as fixed by the constitutional amendment. Under the constitutional amendment, the special ten day session and the regular sixty day session are separate and distinct regular sessions, each complete within itself. And this is true irrespective of how soon after the adjournment of the ten day session the sixty day session may convene.
The only decision by the courts of this State touching upon the question here involved is found in the case of Speer v. Martin, 163 Ga. 535. That case was decided by a divided bench. Two of the Justices held that whether the members of the General Assembly are entitled to mileage for attending a session of the legislature is a question for determination by that body, and is not a question for judicial determination, and that the courts were not authorized to interfere with any provision made by the General Assembly which it might deem to be necessary for expenses in discharging its duties of legislation. Two of the Justices held that members of the General Assembly are entitled to mileage for attendance upon any session of the legislature, whether or not they actually traveled. The two remaining Justices held that members of the General Assembly attending an extraordinary session were not entitled to mileage unless they actually traveled. The effect of this decision is that in that particular case it was error for the judge of the superior court to enjoin the payment of mileage.
It is the opinion of this Department that whether or not the members of the General Assembly shall receive mileage for attending both of the sessions referred to, and whether or not they shall receive mileage for any session, is a matter for determination by the General Assembly itself. It is the opinion of this Department that upon the adoption by the General Assembly of a proper resolution providing for the payment of mileage for both of the sessions referred to, it will be the duty of the Treasurer to pay same; and that without such resolution the Treasurer would not be authorized to do so.
TREASURER-Stock owned by State can be disposed of only by legislative authority
May 30, 1933 Hon. Geo. B. Hamilton State Treasurer State Capitol Dear Mr. Hamilton:
I have your letter of May 2'Uh, referring to the stock owned by the State, in the Georgia Railroad & Banking Company, and in the Southern and Atlantic Telegraph Company, which latter stock is endorsed by the Western Union Telegraph Company.
The ownership of this stock in the State is specifically provided for by statute. Civil Code 1910, Section 1285, (Section 91-103, Code of 1933).

473
I have made some little investigation, and I find that the same Section is carried in the Code of 1895, as Section 1019.
The Codes of 1883, 1868 and 1861 make no reference to the State's owning stock in the Telegraph Company, but each of these Codes does provide that the State owns 186 shares of stock in the Georgia Railroad & Banking Company.
Neither of the Codes makes any reference to any act of the General Assembly, and I have been unable to locate, in the limited time available, the exact resolution or act under which this property was acquired. It does appear, however, that the State has owned the Bank stock at least since 1861, and the Telegraph stock at least since 1895.
Since the ownership of this stock is a matter of law, and is specifically provided for by the Code, I do not think it can be disposed of except by legislative authority. In other words, the disposition of this property would be contrary to the section of the Code providing that the State owns it.
Without discussing the powers of the Executive Department in general to dispose of State-owned property, it is my opinion that this particular property cannot be sold unless the General Assembly by law authorizes its sale.
EMPLOYMENT BUREAU-Department of Industrial Relations authorized to co-operate with Federal Government
October 23, 1933
Hon. Geo. B. Hamilton State Treasurer State Capitol
Dear Mr. Hamilton: A day or two ago you made a verbal request for an opinion as to
the proper agency of the State of Georgia to accept the benefits provided by the Act of Congress approved June 6, 1933, entitled, "An Act to provide for the establishment of a national employment system, and for cooperation with the States in the promotion of such system, and for other purposes". As I understand your request you desire to be informed as to the duty and authority of the State Treasurer in this matter and also as to whether the Veteran's Service Office or the Department of Industrial Relations has authority to employ funds appropriated to either of these State agencies to match funds supplied by the federal government, and which of these State agencies, if either, is authorized by law to carry on the activities contemplated by the Act of Congress.
In my opinion the only duty or authority of the State Treasurer in the matter is to receive these funds from the federal government for credit to the proper State agency. The State Treasurer has no authority of law to participate in the organization of an employment service or to otherwise engage in the administration of any State

474
law providing for an employment service or in the administration of the federal Act just referred to.
The powers and duties of the Veterans Service Office are conferred and imposed by the Act of 1923 (Ga. Laws 1923, p. 121,), and the amendatory Act of 1926 (Ga. Laws, Ex. Ses. 1926, p. 53). As amended the duty of the Veteran's Service Office is to:
"Disseminate information to veterans of the War with Spain, the World \Var, and to veterans of any way, military occupation, or military expedition since 1897, their dependents and beneficiaries, as to their rights and benefits under Federal legislation or legislation of this or any other State heretofore or hereafter enacted; to assist said veterans, their dependents, and beneficiaries in the preparation and prosecution of claims before the appropriate governmental departments; to report all evidences of fraud, deceit, and unworthy claims coming or brought to his attention to the department concerned; to report all evidences of incompetency, dishonesty, and neglect of duty of and by employees of any governmental department to the proper authority; and generally to do and perform all things possible for the interest and protection of the worthy veteran; and to co-operate with the Georgia Departments, The United Spanish War Veterans, The American Legion, the Disabled American Veterans of the World War, the American Red Cross, and all other agencies to these ends."
This statute confers no authority upon the Veteran's Service Office to operate an employment service and the Veteran's Service Office has no power or authority to engage in such an activity and has no power or authority to use funds appropriated to it for such a purpose, or to match funds made available for such a purpose by the federal government.
The Department of Commerce and Labor was created by the Act of 1911 (Ga. Laws 1911, page 133, Michie's Code, 1926, Sections 2158(3), et seq.). The powers, functions, and duties of the Commission of Commerce and Labor provided for by this Act were transferred by the Reorganization Act to the Department of Industrial Relations, and the Commissioner of Commerce and Labor was made Chairman of that Department. The Act of 1911 specifically authorizes the Commissioner of Commerce and Labor to
"Organize a division of labor or free employment bureau, having for its purpose the listing of names of all persons desiring employment in this State, and the endeavor to secure employment for such persons, and the listing of the names of such persons, firms, or corporations applying for labor and to endeavor to supply it to them." The Department is further expressly authorized to co-operate "With similar exchanges in other States and the United States Employment Service." From what is just stated it is my opinion that the Department of Industrial Relations is authorized to conduct an employment bureau in co-operation with the federal government and to use any funds appropriated to carry on the activities formerly carried on by the

475
Commissioner of Commerce and Labor for the purpose of matching federal funds for use in conducting an employment service.
There has been no express assent by the General Assembly of Georgia to the Act of Congress approved June 6, 1933, since there has been no session of the General Assembly since the passage of this Act. However, the General Assembly of Georgia had already created an agency, to wit, the Department of Industrial Relations, with all of the powers and authority necessary to co-operate with the United States Employment Service under that Act. It is my opinion that the provisions of the Act of 1911 with reference to the Department of Commerce and Labor, now the Department of Industrial Relations, fully meet the requirements of the Act of Congress approved June 6, 1933, and that there is no other Department of the State Government which has authority to operate an employment service in co-operation with the federal employment service, or to expend state funds for such purpose.
DEPOSITORIES-State deposits not affected by Glass-Stegall Banking Act insuring bank deposits, nor does that Act authorize reduction of bonds filed by State depositories
November 13, 1933
Hon. Geo. B. Hamilton Treasurer State Capitol Dear Mr. Hamilton:
Yours of the 8th instant has been received. You state in your letter:
"Under the Glass-Stegall Banking Act, which goes into operation January 1, 1934, provision is made for the insurance, or guarantee, of deposits by certain banks that may qualify under said Act." You desire an opinion on the question: "Where a State depository is qualified under bond to the State for a certain amount, would the Federal guarantee make provision for the protection of State funds to the extent of the guarantee over and above the amount of the depository bond, or, in certain cases, when called upon would we be authorized to recommend that a State Depository bond be reduced by the amount of the insurance, or guarantee, provided that such reduced bond, together with the benefit of the insurance, or guarantee, would be sufficient protection for the State's account?" It is my opinion that your question is answered by Code Sections 1252 and 1256, of Michie's Code of 1926, (Sec. 100-104 et seq., Code of 1933). I will quote the relevant portions of these sections. In Code Section 1252: "In fixing the bond to be given by a depository under this section, the Governor shall so fix the same as to make it not less than the amount of money entrusted to said depository, and in no case shall a larger amount of money be deposited in any bank

476
than the amount of the bond, and the Governor may at any time require additional bond, if necessary, to cover fully the amount deposited or intended to be deposited in such bank." Then, in Code Section 1256, it is provided: "The Treasurer of this State shall not deposit at any one time, or have on deposit at any one time in any one of the depositories of this State, for a longer time than ten days, a sum of money belonging to this State that exceeds the bond given by said depository to the State. The Treasurer shall check from any depository the amount of the State's money that said depository holds in excess of its bond, and pay the sum into the Treasury. Provided, that the State depository may be allowed to hold a sum greater than $50,000.00, but not in excess of $100,000.00, upon such depository giving a new bond to cover the maximum amount to be deposited with it, and when such new bond has been executed and delivered to the Governor the old bond shall be discharged and surrendered, and whenever a National Bank is selected as a State depository the amount of the bond shall be double the amount of money to be deposited with it. It is my opinion that the various banks of the State which act as State depositories must comply with these provisions of the law unless and until the same are repealed or amended by the Legislature. Although it does seem useless for a bank which has its deposits guaranteed by the federal government by the Glass-Stegall Banking Act to be further required to carry a bond guaranteeing those same deposits, nevertheless it is the law. We feel that about the only recourse that the banks have under the existing law is to negotiate with the various bonding companies for a reduction in the premiums of such bonds. Their risk, after this law goes into effct, will be negligible as to those banks which are operating under this particular Act. However, as we understand it, this Act is not compulsory on all banks and only those who desire to do so may receive the benefits from it by complying with the terms of the Act. Again referring to Section 1252, it is seen that the law is very specific in the amount of bond which must be carried, and provides that it shall not be less than the amount of money entrusted to said depository.
DEPOSITS-Home Owners Loan Corporation bonds not acceptable as collateral covering deposits of State funds
August 29, 193~
Hon. George B. Hamilton State Treasurer State Capitol My dear Mr. Hamilton:
I have your letter of the 28th instant requesting an opinion as to the acceptance of Home Owners Loan Corporation bonds as collateral covering deposits of State funds.

477

Civil Code Section 1256, (Sec. 100-108, Code of 1933), as amended

by the Act approved August 28, 1931 (Georgia Laws, 1931, p. 120),

provides in part as follows:

"The bond to be given by State Depositories, whether State or

National Banks, shall be a surety bond signed by a surety com~

pany duly qualified and authorized to transact business in this

State, in a sum equal to the amount of money to be deposited

with such depository: Provided, that in lieu of such surety bond

the State depository may deposit with the State Treasurer bonds

of the United States or of this State, or bonds of the counties and

municipalities of this State, etc."

It is my opinion that bonds issued by the Home Owners Loan

Corporation are not "bonds of the United States" within the mean-

ing of Section 1256. These bonds are not issued by the United

States but by an independent corporation and although the principal

and interest is unconditionally guaranteed by the United States and

it is provided by Section 1463 (c), Title 12, U. S. C. A., July 1934,

Cumulative Pamphlet, that such bonds

"May be accepted as security, for all fiduciary, trust, or public

funds, the investment of deposits of which shall be under the

authority or control of the United States or any officer or

officers thereof,"



nevertheless, this provision in the Federal statute does not change

the status of such bonds nor make them acceptable as security

under the express limitations imposed by Section 1256.

In your letter you also request advice "as to the status of a deposit

guarantee of $5,000.00 as it relates to collateral covering deposits of

State funds." You have not given us sufficient facts upon which to

base an opinion on this subject. When you have furnished us such

additional facts, I shall be glad to furnish you with an opinion.

STATE BONDS-Surety required for issuance of duplicate State bonds where originals lost
October 2, 1934
Hon. George B. Hamilton State Treasurer State Capitol Dear Mr. Hamilton:
I have your letter of even date in which you state that the Trust Company of Georgia, as Guardian for May Belle Alexander, has applied for replacement of lost registered State of Georgia bonds, and requesting my opinion as to the surety required as a condition covering the issuance of duplicate bonds.
The matter is governed by the provisions of Section 1270, et seq. of the Civil Code, (Sec. 87-108, et seq., Code of 1933). It is provided by Section 1270 that when any bond, or coupon shall be lost, mutilated or destroyed, the governor may issue to the holder a new

478
bond with proper coupons attached, or if the coupon only be lost, mutilated or destroyed he may order the State Treasurer to issue new coupons in lieu thereof.
It is required by Section 1~71 that the holder of the lost bond must make affidavit of such fact, reciting the fact of ownership at the time of the loss or destruction and "if lost, that he has made diligent search without avail and despairs of ever finding them." Having made such affidavit the holder shall be entitled to a new bond upon giving bond and surety to the Governor in a sum double the amount of the lost bond, conditioned to save the State harm on account of issuing such new bond.
Section 1~73 provides that the surety on the indemnification bond referred to must be approved by the Governor.
There seems to be nothing in the statutes which requires the bond of indemnification to be executed by a surety company. The only provision is that the bond be approved by the Governor and shall be double the amount of the lost or destroyed State bond.
At the proper time if you so desire, I shall be glad to have the necessary bond prepared.
COUNTY WARRANTS-Taxability of county warrants
April~~. 1933
Hon. G. L. Spann Tax Collector Terrell County Dawson, Georgia Dear Mr. Spann:
I have your letter of April 18th in which you ask for an opinion as to the taxability of county warrants which represent money borrowed by the county, and as the taxability of tax fi. fas. which have been transferred to the present holder.
The general rule is that all property, whether real or personal, including choses in action, are subject to taxation. This rule is modified, however, by the well established principle that choses in action which are indebtednesses incurred by a county or municipality are not subject to taxation.
The question you ask has never been adjudicated by the courts of this State. However, it would seem that the same rule which precludes taxes of county and municipal bonds would also preclude the taxes of a county warrant when the property and fund represented by the warrant had been acquired by the county. This has no reference to the legality or illegality of a county issuing a warrant for borrowed money. The theory upon which the decisions holding that counties and municipalities bonds cannot be taxed is that such a tax would be in effect a tribute levied by the taxing authorities upon the exercise by the county or municipality of the governmental functions which it is authorized by law to exercise.

479
With reference to tax executions transferred to and held by a person other than the taxpayer, if such execution represents the investment of funds by the holder in the form of an advance made to the taxpayer for the payment of the taxes, the tax execution being held merely as security, I can see no reason why such evidence of debt should not come within the purview of Section 1002 of the Civil Code, (Sec. 92-101, Code of 1933). If, however, such executions do not represent investments, but merely represent payments made by the holder thereof to protect securities held by him as in a case where a loan company pays the taxes on land which it holds as security for debt, I do not think this rule would apply. The reason is that in such a case the property is subject and the payment of the taxes does not represent an investment but the protection by the holder of the fi. fa. of the security for the loan. It might be that in a case where the funds are advanced to a taxpayer to pay his taxes, and the taxes were actually paid with the funds and received by the county in payment, that the same principle which prevents the assessment of county and municipal bonds would have application. Frankly, I seriously doubt if the court would uphold an effort to tax such an investment.

COUNTY-Authority of county authorities to regulate peddling within county

June 14, 1934

Hon. J. B. Barrineau, Chairman

County Commissioners, Berrien County

Nashville, Georgia



My dear Mr. Barrineau:

I have your letter of June 4th, in which you request that I furnish

you my opinion on certain questions propounded by the 16th day

of June.

I would have answered earlier but the press of other matters in

the office was such that I held your letter up because you stated that

an answer at any time before June 16th would be all right.

I wired Mr. Jackson at his request in some detail. However, I

did not tell him, because I did not want to thereby unnecessarily pro-

long the telegram, that in furnishing an opinion in this matter I am

obliged to do so as an individual and not as Attorney General. The

Attorney General's authority to render opinions is confined by law

to opinions furnished the Governor and heads of the State Depart-

ments with reference to matters concerning the State itself. These

are the only official opinions which I can render and any others are

necessarily unofficial and have no more binding force than the opinion

of any other lawyer. However, I am glad to give you my views on

the subject.

The questions you ask are as follows:

1. "Has this Board jurisdiction over peddlers, that is, can it set

the amount to be paid for county license to peddle, under Section 5,

480
Acts 1902, page 204; taking into consideration Civil Code Sec. 4796. Code Sec. 530 fixes this license at $50.00; can we make it higher, or lower, than this amount?"
In answer to this question, I will say that in my opinion the Board of County Commissioners of Berrien County has the same authority granted to the Ordinary by Section 530 of the Code, (Sec. 92-3902, Code of 1933). The Act of 1902 expressly confers upon the Board exclusive jurisdiction and control in the levying of taxes according to law. I find no Act repealing this statute and I presume it is still of full force and effect. Section 530 of the Code simply fixes the county license on peddlers at $50.00, unless otherwise provided by the Ordinary under the law. The ordinary was authorized under this section ann under Section 4796, (Sec. 23-701, Code of 1933) to fix a higher or lower tax on peddlers. The County Commissioners now have this authority. Of course, the tax as fixed must not be prohibitive but the amount subject to the limitation just referred to is within the discretion of the County Commissioners.
2. "Does the fact that said peddlers sell groceries and dry goods, and various other merchandise, to the farmers, and take farm products in exchange for such goods, exempt them from peddler's license, they also take money for goods?"
In my opinion, the fact that peddlers accept farm products in exchange for goods does not exempt them from peddler's license. I presume this question has reference to the provision of the General Tax Act which authorizes the peddling of perishable farm products without paying any State, county or municipal license fee or tax. This provision must be strictly construed because it is a statute of exemption. In my opinion, it cannot be construed to exempt from license a peddler who is engaged in selling dry goods and other merchandise, even though he may accept perishable farm products in payment therefor. This provision of the General Tax Act imposing a State tax on peddlers does not, in my opinion, affect the jurisdiction of the county to impose a tax on peddlers, except persons engaged in selling perishable farm products.
3. "Where a citizen of the county and taxpayer makes affidavit as provided in Code Section 535, that a person is peddling without county license, in order that the forfeiture provided for in Section 533 may be collected, is it mandatory on the part of the Commissioners to issue such process, or is it optional with them?"
In my opinion, Section 535 of the Code, (Sec. 92-3907, Code of 1933) requires the Ordinary or County Commissioners, as the case may be, to institute the proceeding provided for where they know of their own knowledge that a person is peddling without a license or where an affidavit to that effect is filed with them, provided the affidavit is that of a person who is, in the opinion of the Commissioners, worthy of credit. I think the Commission would be authorized to take into consideration the facts and circumstances existing, as well as any personal knowledge they might have, including the standing of the person who made the affidavit, and determine for themselves whether the issuance of the process is

481
proper. The statute provides that it is the duty of the several ordinaries (or Commissioners) to issue the process upon the affidavit being filed, "unless they know to the contrary." This provision evidently was designed to clothe the Ordinary with sonic discretion in the matter, and I think would authorize an investigation upon such an affidavit being filed. I think the Commissioners are required to make such investigation, but I do not think their duty to institute the process is absolute when an affidavit is. filed, unless upon investigation it is determined that such action is proper.
4. "Some persons peddling in this county have been so peddling without license since January, 1931. If we have a right and jurisdiction to bring forfeiture proceedings, can it be brought for the full time, or only for the last twelve months, as set out in Section 4370 of the Code, providing for suits brought by informers?"
In answer to this question it is my opinion that the forfeiture provided by Section 533 (Sec. 92-3905, Code of 1933) may be enforced for the full amount due under that section, without reference to the 12 months period of limitation provided for by Section 4370, (Sec. 3-714, Code of 1933) in the case of suits brought by informers. The process when instituted is not a suit by an informer within the meaning of that section, but is a process by the county to enforce payment of a penalty fixed by law for peddling without a license. The fact that a portion of the recovery is to be paid to the informer does not change the law. I think, therefore, that the 12 months period of limitation does not apply. You do not ask my opinion as to what is the statute of limitations.
5. "Can an old soldier's license be granted to A, and he permit B to do business under his license, thereby relieving B from paying either the State or county license?"
Under the decisions of the Supreme Court and the opinions we have heretofore rendered on this question the business operated under a disabled veteran's license must be the business of the veteran himself. If he owns the business, he can operate it without paying a license, provided he has complied with the statute and is entitled to a disabled veteran's license. If he does not own the business but is merely employed therein, it cannot be operated under his disabled license. Under the General Tax Act a disabled soldier who is a peddler is permitted to have one helper, but the peddling business must belong to the disabled soldier. If the peddling business belongs to someone else and the soldier is merely the helper, his disability license would not exempt the owner of the business from the tax.
I have read with interest the briefs which you inclose and have given consideration to the same in the opinion stated above. I am returning the briefs herewith.

TAXATION-Taxation of standing timber on leased lands
June !l3, 1984
Mr. Mr. J. J. LeFurgey
Prior's, Georgia Dear Sir:
Your inquiry regarding the taxation of standing timber on leased lands has been received.
In answer to whether or not such timber is subject to taxation, I beg to advise that, according to the Georgia Code, Section 1008 (Sec. 92-104, Code of 1988), and the Acts of 1889, page 85, such timber is taxable.
Section 1008 of Michie's Code provides as follows: "Interest in land less than fee--All persons owning any mineral or timber interest, or any other interest or claim in or to land less than the fee shall return the same for taxation and pay taxes on the same as on other property." This rule was followed in these cases: Wright v. Central Railway Co., 146 Ga., 410; Durden v. Phillips, 166 Ga., 695; Aiken v. State, 170 Ga., 897.
EXEMPTION FROM TAXATION-Disabled nurse who served in the World War entitled to same exemption as disabled veteran
February 21, 1988 Hon. Thos. H. Jeffries Ordinary, Fulton County Atlanta, Georgia Dear Judge Jeffries:
I have your letter of February 5th inclosing inquiry as to whether or not a disabled nurse who served in the World War may be granted a free business license under the provisions of Section 1888 of the Civil Code as amended, (Sec. 84-2011, Code of 1933).
The Code Section in question provides that "any disabled or indigent . . . . . . . . . . soldier or soldiers may carry on" the businesses referred to without paying license for the privilege of so doing. Your question involves a determination of whether or not the word "soldier" as used in the Code includes a nurse.
The Judge Advocate-General of the United States Army has held that a Red Cross Nurse assigned to active duty in the military establishment during the World War was in the military service of the United States, not as a member of the Red Cross, but as a member of the Army Nurse Corps, and was entitled to admission to the National Home for Disabled Volunteer Soldiers. (See Digest of Opinions of the Judge Advocate-General 1912 to 1930, Section 1224).
The Army Nurse Corps was made a part of the Medical Corps of the Army by Section 10 of the National Defense Act of June 8, 1916. By the Act of June 4, 1920, members of the Army Nurse Corps were given relative rank of commissioned officers.

48S
In the Digest of Opinions the Judge Advocate~General, 1912-1980, Section 1852, Page 916, it was held that prior to the approval of the Act of June 4, 1920, Army Nurses were considered to hold positions in the Army analogous to that of enlisted men. In the same volume of the Judge Advocate Opinions referred to, at page 474, it was held that the relative standing of members of the Army Nurse Corps, corresponding to that of a commissioned officer, justifies extending to them the provisions of the Army regulations relating to displaying the flag at half mast at a military post on the death of an officer.
It was likewise held by the Judge Advocate-General as set forth by the volume referred to, Section 759, Page 351, that Army Nurses were entitled to the preference allowed all discharged soldiers, sailors and marines by the Act of July 11, 1919, in making appoint~ ments to clerical and other positions in the Executive Branch of the Government.
The Act of May 13, 1926, amending the National Defense Act referred to, provides for the retirement of members of the Army Nurse Corps.
U. S. C. A., Title 10, Chapter 7, Section 162, provides for the appointment of the superintendent of the Army Nurse Corps by the Secretary of War, and for the appointment of the other members of the Corps by the Surgeon-General of the Army with the approval of the Secretary of War.
The Second Article of War (U. S. C. A.) Title 10, Section 1478, provides that members of the Army Nurse Corps "are subject to these Articles and shall be understood as included in the term 'any person subject to military law', or 'persons subject to military law'".
By the provisions of Title 38, Chapter 6, Section 312, of the U. S. C. A. the provisions of the various existing branch laws as of May 1, 1920, were extended to Army nurses.
The Army regulations provide the qualifications of members of the Army Nurse Corps, fix their rank, regulate promotion and provide for the appointments, demotions, discharge and retirement of Army Nurses.
The World War Adjusted Compensation Act of the Federal Congress defines the term "veteran" as including any individual a member of the military and naval forces of the United States at any time after April 5, 1917 and before November 12, 1918. It is my understanding that this provision has been uniformly construed to include Army Nurses.
In City of Macon v. Samples, 167 Ga., 150, the Supreme Court of Georgia had before it for construction the provision of Section 1888 of the Civil Code of Georgia referred to. In that case, Samples, a sailor during the World War, sought the benefit of the exemption provided by the statute. The Court said:
"While it cannot be said, upon the application of the definition given by the lexicographers, that the term 'soldiers' embraces 'sailors', nevertheless; in view of the evident purpose of this Act, we think that by the term 'soldier' the legislature intended to include

484
all who served as members of the forces engaged in the war, and that it includes enlisted men in the navy, who served as gunners, as well as soldiers in the narrower sense of the term." This is the only Georgia case in which the scope of the provisions of the statute referred to has been dealt with. It would seem, however, that if the term soldier as used in the Act is broad enough to cover a sailor, it is broad enough to cover a nurse. While it is the , general rule that exemptions from taxation are not favored and are to be strictly construed, it seems to me that such a strict construction would eliminate a sailor as well as a nurse. In the case referred to, our Supreme Court has declared that the purpose of the General Assembly was that the term "soldier", as used in the Act should not have a strict construction but should be extended to include "all who served as members of the forces engaged in the war," as well as soldiers in the more restricted sense of the term. The word "soldier" is derived from the Latin "solidus" and in its common acceptation means one who belongs to a regularly organized body of combatants and as such is engaged in military service, either as an officer or private; it embraces both enlisted men, officers of every grade and rank, artifices, musicians and surgeons. (58 Corpus Juris, page 801). Under the provisions of the National Defense Act and subsequent Federal laws relating to the National Defense, a member of the Army Nurse Corps, in the military service of the United States, when on active duty, is subject to the Articles of War, holds a rank established by law, may be retired, and is entitled to all the rights and privileges of any other soldier in the Federal service. From what has been said above, it is my opinion that a discharged, disabled Army nurse is a soldier within the meaning of the word as used in the section of the Code referred to, and that you would be authorized to issue to such nurse the certificate which you are authorized to issue to World War Veterans upon a compliance with the provisions of the statute relating thereto.
EXEMPTION FROM TAXATION-Interpretation of law relating to tax exemptions in favor of disabled or indigent veterans
October 13, 1933 Mr. V. A. Gaskins City Clerk Hahira, Georgia Dear Mr. Gaskins:
Yours of the 5th instant received. Due to the press of urgent State business in this office, we have not been able to give any attention to unofficial matters and this explains the delay in answering your inquiry. Under the law, I am prohibited from giving you an official opinion relative to the questions asked in your letter. However, I am glad to give you my own personal views as to the same, which are not binding upon the authorities of anyone in your city.

485
The import of your question is whether a person qualifying under Code Section 1888 of the Civil Code of 1926, (Sec. 84-2011, Code of 1933) may carry on, through agents, more than one business which is exempt from occupation tax. You state that you have instances where a man operating a barber shop or a pressing club is working for a disabled veteran or some other disabled person who has obtained a permit from the Ordinary of some other county and that the owner of the business liYes in some other county. You also state that some of these veterans establish places of business in various cities and counties of the State and that the actual owner is not in charge of the business.
In answer to this question, I call your attention to Code Section 1888, which sets out the nature of the exemption and the necessary qualifications for that exemption. It has been held in numerous cases that the Ordinary's certificate as to the indigency or the disability of a veteran under said section is only prima facie eYidence of such indigency or disability and that if the veteran holding such a certificate is not in fact actually indigent or disabled, then he is not subject to be exempt from the payment of occupation taxes. Jones v. The City of Macon, 36 Ga. App. 97.
The first question, it seems to me, for the authorities in your city to determine is who owns the business which is being operated and is claiming the exemption. If the disabled or indigent veteran with the certificate from the Ordinary does not actually own the business, then the same is not exempt from the occupation tax. However, if the veteran does in fact own the business and is employing others to run the same for him, even though he lives in another county, the business as operated by his agents and the agents themselves would be exempt from the payment of an occupation tax for the operation of the business belonging to the veteran. However, if the business is being operated in the name of the veteran and his license is used but he receives none of the profits of the business and does not have a controlling interest in the business and his veteran's license is merely being used as a subterfuge to avoid the payment of the license, then said business is not exempt.
In the case of Hartsfield v. City of Columbus, 109 Ga. 112, The Supreme Court held:
"The fundamental mistake of counsel for the city lies in the proposition advanced by him that the certificate of the ordinary limits the holder of the same to the transaction without license of one particular kind of business only. We are firmly of the opinion that under the law the holder of such a certificate is authorized to engage in business generally, and therefore, to carry on as many different lines of business as he may be able with his own means to conduct in his own name and on his own account. Of course, he could not legally transfer his privilege, directly or indirectly, to another . . . . As a matter of course, his servants and employees are also protected by the certificate under which he operates and cannot themselves be called upon to pay for any license covered by the exemption granted to him."

486
The doctrine and principles announced in this decision have been followed in subsequent decisions along this same line and are applicable in your case.
In the case of Tyner v. Winslett, 174 Ga. 261, which is one of the most recent expressions of our Supreme Court upon the question of exemptions as allowed under Code Section 1888, the Court held that a veteran who is entitled to the exemption under Code Section 1888 is not only exempt from city and county license and occupation taxes but also to State occupation taxes. This case held that a disabled or indigent soldier of the late European War is not subject to the payment of the license tax imposed by Paragraph 17 of Section 2 of the General Tax Act of 1927.
As further authority relative to the question which you have asked we cited the cases of Coxwell v. Goddard, 119 Ga. 369; Fairburn v. Edmondson, 162 Ga. 386; Jones v. Macon, 36 Ga. App. 97.
Referring you again to Code Section 1888 relative to the exemption of the veterans, we direct your special attention to the last three lines of this section, which are as follows:
"And provided, further, that the privileges hereby granted shall not be transferred to or used by any other person." As stated above, the primary question for you to determine is whether the business which your municipality desires to tax is actually owned by the veteran. Secondly, you should determine whether the veteran in question is actually and bona fide disabled or indigent, and entitled to the exemption. The mere fact that he has a certificate from the Ordinary stating that he is such a disabled or indigent person is not sufficient to exempt him if he is not actually disabled or indigent. See Jones v. City of Macon, as cited above. If the veteran himself is not entitled to the exemption, then, of course, none of the agents who are operating any business for said veteran in any city or county would be exempt nor would the business thus operated be exempt.
SPECIAL ELECTION8-Who qualified to vote
May 31, 1933
Hon. Arthur S. Oldham, Chairman Clarke County Board of Registrars Athens, Georgia
Dear Mr. Oldham: In reply to your letter of May 23rd in which you request that I
advise you with reference to certain features of the registration law determining the qualifications of voters for the forthcoming election called by Governor Talmadge to fill the unexpired term of Congressman C. H. Brand, deceased, I wish to advise as follows:
The election laws of this State are not clear in many respects but the provisions which I quote below would seem to apply with respect to the qualifications of voters and in the conducting of the election referred to.

487
It is my information that the election referred to will be held on July 5th instead of June 14th, as indicated in your letter.
I understand that the election was called by the Governor on May 22nd and that the call provided that the election be held on July 5th.
It is provided by Sections 101 and 102 of the Code (Sections 34-2306, 34-2307, Code of 1933) that vacancies existing in the House of Representatives of Congress are filled at elections called by proclamation of the Governor.
By the provisions of Section 94 (Section 34-2101, Code of 1933), elections for members of Congress are governed by the same rules as elections for members of the General Assembly in the particulars enumerated in said section. Particular reference is made to Subsection 4 of said Section 94, which provides that the manner of conducting and returning elections also applies to special elections.
By the provisions of Section 82 of the Code (Section 34-1303, Code of 1933), the manner of conducting elections for members of the General Assembly is set forth in detail.
The constitutional provision relating to the election of representatives is found in Section 6633 (Section 1-114, Code of 1933).
The constitutional provisions relating to the qualifications of electors will be found in Code Sections 6396, 6397 and 6398 (Sections 2-602, 2-603, 2-604, Code of 1933). The constitutional provisions relating to the duties of the Uegistrars in preparing a roster of the voters will be found in Section 6399 (Section 2-605, Code of 1933).
I presume that it will not be necessary for me to refer you to the sections setting forth the qualifications of voters generally. However, Section 34 of the Code gives the general qualifications of voters and Section 35 enumerates those who are disfranchised. (Sections 2-601, 2-609 and 2-701, Code of 1933.)
It has been held by the Supreme Court of this state that registration is now a qualification of voters. See Goolsby v. Stephens, 155 Ga. 529 (2); Fairburn School District v. McLaren, 166 Ga. 867, 870; Houston v. Thomas, 168 Ga. 72 (7).
The provisions of our law with respect to the registration of voters will be found in Sections 36 through 47 (5) (Sections 44-101, et seq., Code of 1933), and the duties of the registrars are set forth in Sections 55 through 61 (Sections 34-401, et seq., Code of 1933).
The provisions of Section 61 apply in all cases of special elections, and are briefly as follows: (I) The tax collector closes his voter's books within five days after the call of the special election. In this case the books would have to be closed within five days after the date of the call of the election by the proclamation of the Governor. (2) Within five days thereafter, the tax collector shall file with the county registrars an accurate and complete list of all names signed in the voter's books since the close of the voter's books for the last general election, said list made out and arranged as provided in Section 48. (3) Within five days thereafter the Registrars shall file with the Clerk of the Superior Court a supplemental registration list as follows: (a) list showing the names of those voters who are

488
entitled to vote at said special election; said list shall be purged in the same manner as preparing and purging the registration list for general elections; (b) list of voters entitled to vote by reason of their registration for the last general election. In making up this last list, the registrars are required to purge the list of registered voters prepared for the last general election of any names subsequently disqualified by failure to pay taxes becoming due subsequent to the last general election.
No one shall be entitled to vote in said special election unless his name is upon one of the lists thus furnished by the registrars.
It has been held that the provisions of law requiring the payment of taxes six months prior to the date of the election in which the voter seeks to vote is not required in special elections. See McGill v. Simmons, 172 Ga. 127(4), and cases there cited.
In my opinion, persons who registered for the special election must have paid the 1932 poll taxes before registration and before the closing of the books as hereinabove provided for, since these taxes became due more than six months prior to the date of this election. I do not think that these taxes would have to be paid six months prior to the election but that they must have been paid at the time of registering for the special election or prior thereto.
When a person becomes too old to pay poll taxes, he can register and vote in all elections without regard to the payment of his property taxes.
The last day on which said poll taxes can be paid in order to vote in this special election would be the day of the closing of the registration books.
The 1932 poll taxes would have to be paid by a person not on old lists as a prerequisite to registering, and by any person on the old list as a prerequisite to voting, and it would be the duty of the registrars to purge the old list accordingly.
The Supreme Court, in the case of Terrell v. Forest Park School District, 175 Ga. 88, ruled that the provisions of the special election law did not apply to elections for bonds in local tax districts. The reason for so ruling, however, was because of the constitutional amendment ratified in 1918 (now Michie's Code Section 6563), which nullified the special election law in so far as it applies to elections for bonds, and on page 91 the Court said:
"The constitutional amendment of 1918, supra, (1922 supplement) does not apply to special elections for any purpose except for bonds." For that reason it did not apply to the question raised in the case of Houston v. Thomas, 168 Ga. 67, or in the case of Price v. Hodges, 172 Ga. 871, or in Crye v. Pierce, 175 Ga. 85. I trust that this letter will give you the desired information and will be of assistance in the preparation of the registration lists to be used at the special election to fill the unexpired term of the late Congressman, Hon. C. H. Brand.

489
VOTING-Constitutional Amendment requmng payment of poll taxes only supersedes city charter provisions requiring payment of city taxes
June 13, 1938
Hon. R. H. Hutchinson Clerk and Treasurer, City of Tifton Tifton, Georgia
My dear Sir: I have your letter of June 9th in which you request an opinion as
to whether or not the Constitutional amendment ratified at the election of 1932, which provides for voting on payment of poll tax alone, supersedes any provision of the charter or ordinances of a municipality requiring the payment of all taxes due the municipality as a prerequisite to voting in municipal elections.
Under the law, the Attorney General has no authority to render opinions except upon the request of the Governor or the head of some department of the State government, and then only with respect to questions in which the State is interested. Since the question you submit concerns only the City of Tifton, I am not permitted under the law to give you an official opinion with reference to the same. Accordingly, what is stated below must not be taken as the official opinion of the Attorney General, but as merely the expression of my personal and individual opinion.
Before the amendment of 1932, the Constitution of Georgia provided by Paragraph 2, of Section I of Article 2, as follows:
"Every male citizen of this State who is a citizen of the United States, twenty-one years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and entitled to register and vote at any election by the people; Provided, that no soldier, sailor or marine in the military or naval service of the United States shall acquire the rights of an elector by reason oi being stationed on duty in this State." It further provided by Paragraph 3 of the same Section and Article as follows: "To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the County in which he offers to vote six months next preceding the election, and shall have paid all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877, that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior to the election at which he offers to vote, except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes." It will thus be seen that the Constitution expressly provides that those designated as electors, who possess the qualifications provided by the Constitution, and are not laboring under any of the

490
disabilities specified by the Constitution, shall be "entitled to regis:. ter and vote at any election by the people." The requirement of the Constitution with reference to the payment of taxes is set forth in Paragraph 3 quoted above. This paragraph made the payment of all taxes necessary.
In Jones v. Darby, 174 Ga. 71, the Supreme Court held that the words "all taxes" as employed by the quoted provision of the Constitution, included all municipal taxes, and that a person who was a defaulter of municipal taxes was not entitled to vote in any County election.
As amended by the amendment proposed August 14th, 1931, and ratified at the election of November, 1932, Paragraph 3 of Section 1, Article 2 of the Constitution, is as follows:
"To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all poll taxes that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior to the election at which he offers to vote, except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes."
The effect of this amendment was to strike from the Constitution the requirement that the voter, in order to be entitled to register and vote, shall have paid all taxes required of him since the adoption of the Constitution of 1877, and substitute the requirement that he shall have paid all poll taxes. It will thus be seen that the only requirement of the Constitution as amended with reference to the payment of taxes relates to poll taxes, and that under Paragraph 2 of Section 1, Article 2, a person possessing the qualifications provided by the Constitution as amended, and not laboring under any of the disabilities named in the article, shall be an elector and entitled to register and vote at any election by the people. In my opinion, a municipal election is an election by the people, and with the requirement of Paragraph 3 as amended, so far as the payment of taxes is concerned, is exclusive of all other requirements for the payment of taxes. Accordingly, I am of the opinion that the Constitutional amendment proposed by the General Assembly in 1931, and ratified by the people at the election of 1932, supersedes and abrogates any provision of the charter and ordinances of any municipality, requiring the payment of all municipal taxes as a prerequisite to the exercise of the right to vote in any municipal election.
I am not unmindful of the decision of the Supreme Court in McMahon v. Mayor of Savannah, 66 Ga. 217, wherein it was held that municipal ordinances requiring voters in the municipality to register in order to vote in municipal elections, and further requiring payment of a municipal poll tax, were not violative of the Constitution as it then existed. However, that decision was rendered before the adoption of the Constitutional amendment of 1908, which con-

491
tained the mandatory language of Paragraph 2, that every person qualified under the provisions of the Constitution "shall be an elector and entitled to register and vote at any election by the people". In my opinion, the requirements of the charter and ordinances of the City making the payment of City taxes a prerequisite to voting had their validity prior to the amendment of 1931 in the mandate of the Constitution that all taxes should be paid as a prerequisite to voting at any election by the people. Since the mandate of the Constitution now relates solely to poll taxes, I am of the opinion that a person who has paid all poll taxes as required by the Constitution is entitled to vote in any election by the people, including a municipal election, although he may owe municipal taxes.

492

GENERAL INDEX

Page

ACADEMY FOR THE BLIND

Transfer of Pupils' Fund............................................................................. 29 ADVERTISING
Legal rate........................................................................................................ 100 ADVISORY BOARD
Member ineligible to be member Board of ControL................................ ~08

AGRICULTURE

Branding low quality flour........-------------------------------------------------------- 10 Ho_g c~ole~a ser~m distribution.......---------------------------------------------------- 198 Irr1gat10n 1s agncultural purpo!e................................................................ 285 Peach and apple stamp fees........................................................................ 288

Salary of State Chemist----------------------------------------------------

9

Sale of insecticides........................................................................................ 288

Sampling and inspecting fertilizer..............................................................

7

Veterinary department appropriation........................................................ 20!l

ALCOHOL

Uses regulated......--------------------------------------------------------- 18 APPROPRIATIONS
Board of Control............................................................................................ !l!l Expenses of Georgia Exhibit at Chicago Exposition................................ !l36 Unpaid appropriations for 1928 to 1931, inclusive.................................. !l31 Veterinary Department................................................................................ !lO!l
ARCHITECTS Examination and registration...................................................................... 376 Use of funds derived from Act regulating practice.................................. 377

AUCTION
Sale of jewelry at public auction...........................---------------------- 63 AUDITOH
Use of appropriation by Board of ControL.............................................. 2!l
AUSTRALIAN BALLOT LAW
Notice of candidacy, with whom filed.................... ------------- 470 AUTO FINANCE AND LOAN COMPANY

Occupation Tax.......--------------------------------------------------- -------------------- 461 AUTO TIRES AND ACCESSOHIES DEALERS
Occupation tax
Wholesale and retaiL_____________________ --------------------- -------------------- ........... 480 AUTOMOlliLE FINANCI~G
Occupation t e.x...... __ ------------------- ........... ___________ ---------------------------------460, 461 AUTOMOBILE GAHAGE
Occupr.tion tax-Place of business___________________ ------------------------------------ 431

AUTOMOBILE RADIOS Occupation tax-Classificcttion__________________________ ___ ............... --------------- 454

AUTOl\IOBILE AND TRUCK DEALERS

Occupcttion tax................... ----------------------------------------------------------------------- 420 BANKING
Exchange rates not applicable to county checks........ ................... ......... ll8
BANKS Liquidation-Priority of tax claims........ ___________ .... __ ------------------------------- 46 Tnx8tion of Real Estate__________________________________________________________________________ 303

BAHBERING Bo~rd authorized to examine teachers in barbering school or college.... 370

Construction of Act regnhting...................------------------------------------------------- 365

Disabled veterans not exempt from regulatory fee.-------------------------------- 363

Inspection of shops_. _________________________________ ------------------------------------------------- 367

BEAUTY SHOPS

.

Classificotion for taxation.............. ______ ------------------- ------------------------------- 71 BILL DISTRIBUTORS
Occupation tax-definition.......................................................................... 432

BILLIARD AND POOL ROOMS Act regulating operation of constitutionaL........................................... 414

Page
BOARD OF CONTROL OF ELEEMOSYNARY INSTITUTIONS Appropriation-Use oL------------------------------------------------------------------------------- 28 Authority of Superintendent of State Hospital to operate on male inmates________________________________________________________________________________________________________ 40
Confirmation of members by Senate necessary.....-------------------------------- 806 Designation of juvenile court judge--------------------------------------------------------- 38 Forms for commitment of insane persons to State HospitaL________________ 26 Interest on State deposits____________________________________________________________________________ 35 Juvenile Court Act construed_____________________________________________________________________ 25
Member Advisory Board ineligible to be member------------------------------- 308 Member General Assembly may be member.............---------------------------- 8l!Z PNaortoiclee ooff iinnmteantteioonf tTorawinitihndgraSwchfouon<l LfsorfrBomoysd_e__p__o_s__i_t_o__r_Y,__-_-_-__-_-_-_-_-__-_-_-_-_-__-_-_-_-__-_-_-_-_-_ 3296 Solicitor General may serve as member____________________________________________________ 310 State Hospital for Insane--Inquest over suicide patients..---------------- 37 Training School for Boys-Who pays board of inmate.., ____________________ 36 Transfer of Pupils' Fund of Academy for the Blind................................ 29 BOARD OF REGISTRARS Duties______________________________________________________________________________________________________________ i75 BRANDING Low quality flour...------------------------------------------------------------------------------------- 10 CHAUFFEUR Definition................---------------------------------------------------------------------------------------- 416 CHIROPODIST Definition..................--------------------------------------------------------------------------------- 368 CHIROPODY Construction of Act regulating_........------------------------------------------------------ 374 CHIROPRATIC Definition___----------------------------------------------------------------------------------------------- 868 COLLECTION AGENCY Occupation tax.........----------------------------------------------------------------------------- 4i8 COMMERCIAL REPORTING AGENCY Occupation tax, who subjecL..........----------------------------------------------------- 435 CONVICT Definition of felony convicL._____________________________________________________________________44,886
CORPORATIONS Acreage foreign corporation may acquire in this State_______________________ 188 Having more than two places of business__------------------------------------------ 451 Occupation tax cannot be refunded when paid voluntarily___________________ 437
Occupation tax, to whom remitted...------------------------------------------------------- 440 Occupation tax, who subject_____________________________________________________________________ 443
Taxation of domestic and domesticated.. ------------------------------------------------ 74 Taxation of stock issued by foreign domesticated corporation.... ------- 77 COUNTY Compensation of commissioners_________________________________________________________________ 101
Designation of DepositorY--------------------------------------------------------------------- 98 Exchange rates not applicable to county checks______________________________________ liS Personal property taxable where.... --------------------------~-------------------------------- 101 Rates for legal advertising_______________________________________________________________________ 100
Sheriff's fees-Clerk's fees--------------------------------------------------------------------------- 106 COUNTY AUTHORITIES
Authority to pay return transportation of inmate of State Training School for Boys...--------------------------------------------------------------------------------------- !lS
Authority to regulate peddling '1\--ithin countY------------------------------------------ 479 COUNTY COMMISSIONERS
Authority in collecting taxes-------------------------------------------------------------------- 57 Compensation_-------------------------------------------------------------------------------------------- 10I COUNTY OFFICE When vacant__________________________________________ ------------------------------------------------------ II S COUNTY OFFICIALS Duties of Secretary of State and Governor in commissioning_____________ 464

COUNTY SURVEYOR
Appointment...............-------------------------------- --------------------- COUNTY WARRANTS
Acceptability in payment of taxes........--------------------------------------------TaxabilitY------------------------------------------------------------- CRIMINAL PROCEDURE Judge without authority to probate sentence after service
or begun term ended................................................................................ DEPOSITORY
Designation by countY--------------------------------------------- For public funds ....................................------------------------------------------------ Notice by Board of Control of intention to withdraw funds.................... DOMESTIC ICE MACHINES
Occupation tax on dealers............------------------------------------------------DRUGGIST
Professional man -------------------------------------------- DRUGS
Narcotic--Who may selL..............-----------------------------------------------DUCKTOWN CIIEl\liCAL AND IRON COMPANY............................ EDUCATION
Age at which child may enter schooL----------------------------------- Attendance on public school of child requiring an attendant................ Authority of county board to compel vaccination for smallpox............ Barrett-Rogers fund...................................................................................... Certification of Teachers-Authority of State BoarL...........................
Consolidated district-Who elects trustees------- County board without authority to build ~chool house when title in
local districL.............................................................................................. County board-Authority to employ tea.chers_.................................... County board-No authority to invest public funds in property al-
ready devoted to school purposes_...................................................... County board disburses funds where local tax district has no
treasurer.........-------------- County board not liable for injury sustained on school bus................ County board cannot appoint trustees but must call election................ County board without authority to set up qualifications for candi-
dates for trustee.-------------------------------------- County board responsible for training children in high schooL..........
County line pupils--------------------------------- County line schools_____-------------------------------- County school officials required to provide educational facilities for
children in Orphan's Home......------------------------ County Superintendent of schools compensation...------- County Superintendent-bond............--------------------- County Superintendent required to give surety bon<L............................ Depository for county school funds____------------------- Duty of county superintendent where no depository............................
Discipline on school bus___ --------------- Distribution of Federal and State funds-.................................................. Election for local tax-District trustees not necessary........................ Employment of teachers without certificates illegaL.............................. Fees for transportation outside of district................................................
Funds, use of................---------------------- Governor authorized to borrow money......................................................
Home Economics courses__----------------------- Independent school district-Treasurer's bond........................................ Local district may pay transportation to adjoining district having
accredited high schooL............................................................................ Local school tax limitation..........................................................................
J,ocal trustees-powers--------------------- Member county board may serve as member of General Assembly......

Page
i51
109 478
300
98 56 26
453
11
19 240
126 184 U7 136 135 161
156 153
155
153 125 16'l
16-i 151 18:l 145
129 :l97 167 171 129 132 177 274 157 165 177 130 285 140 151
175 143 158 173

EDUC.\TION-Cont'd Member board of education who is solicitor of city court holding two county offices in violation of law............................................................ No authority for surplus in treasury going to common schools............ Qualifications of members of county board.............................................. Revenue-Sources from which bonds payable........................................ Stanton School Book Act construed______________________________....................... Superintendent may be employed as a teacher........................................ Taxation of gasoline used in school buses_______________________________________________ Transpo~ta~ion of I~upils-Prohibition against school officials having financial mteresL In_ ________________________________________________________________.................
Trustees-Number in each district___________________________ ----------------------- Tuition cannot be charged________________________________________________________________________ Vacancy on county board-how filled_____________________________________________________ Vacancy in county offices-how filled. _______________________________________________________
Who qualified to vote in school bond election____________ ---------------
ELECTIONS
Ballots-Proper method of voting...-------------------------------------------------- FDoartmess offurpnriimshaerYd--b--y---G---o-v--e--r-n-o--r---f-o-r---G--e--n--e-r--a-l---E--l-e-c-t-io--n-__-__-__-_-__-___-____-___-___-_-__-_-_-_-_-_-_-_ Notice of candidacy filed with Secretary of State___________________________________
SScpheocoilabl-oWndhos-qWuahloifiqeduatloifiveodteto____v__o__t_e__..__-_-_-_-_-_-_-_-_-_-_-_-___-__-___-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_
ELECTRICAL CONSTRUCTION Georgia School of Technology not subject to city ordinances regu-
lating electrical constructiorL.......---------------------------------------------------
ELEEMOSYNARY INSTITUTIONS Compensation for care of inmate.....---------------------------------------
ELLIS HEALTH LAW Construction__.. --------------------------------------------------------------------------
EMEHGENCY CLAUSE Insurance policies containing_____ -------------------------------
E1\1EHGANCY FUND Use for Welfare Department______________;-----------------------------------------------
EMPLOYMENT BUHEAU Department of Industrial Helations authorized to maintain_____
ENTOMOLOGIST May serve on Federal Committee.... ----------------------------------
ENTOMOLOGY Nurserymen's license fee College of Agriculture subject__ ------------------- ---------------------------------Georgia Forest Service not subject___.......--------------------------------------Veteran who is disabled subjecL.------------------------------------------Veteran who is disabled subject to license fee for selling plants____________
EXTHADITION Governor's duty in connection with.-----------------------------------
FELONY Definition of felony convict______ ------------------------------------------
FESRamTIpLliInZgEaRnd reporting by inspectors_____________________________________________________ _
FIHE INSURANCE Incorporation of mutual co-operative fire insurance companies____________
FISH License for sale oL..-------------------------------------------------------------------------
FLOUR Branding low quality.........---------------------------------------------------------
FOHESTS Purchase of National Forests.. ----------------------------------------
FORFEITUHES
How divided----------------------------------------------

Page
150 281 244 146 137 169 141
176 128 179 149 183 148
279 276 278 470 148 486
408
:lOG
320
301
286
473
298
187 187 187 184
7
468
209
10
298
41

496
!'age
FUGITIVES Bond not authorized_............................................................................... 277
GAME Licenses-Who may hunt without_.......................................................... 218
GAME AND FISH Definition of citizen as applied to applicant for license.......................... 224 Fines and forfeitures_............................................................................... 223 Fresh water fish license-Restaurant not liable for__.......................... 222 Lease of oyster bottoms-assignment........................................................ 218 Liability of agent for money collected and deposited in bank__....... 209 Private pond defined.................................................................................... 217 Sale of fur bearing animals.......................................................................... 222
Shad fishing licenses and batteau licenses-- 214 Trapping in marshlandS-........................................................................... 221 Veteran not exempt from certain fees...................................................____ 211 Warden-Authority of game warden to make arrest.............................. 210 Warden without authority to search automobiles without warranL.... 224 Warden or deputy warden may carry firearms without license............ 218
GASOLINE TAX
Refund of overpayment---- 87 GENERAL ASSEMBLY
Appropriation bill, Origin............................................................................ 208 Authority to regulate employment in Highway Department................ 200 Member county board of education member of General Assembly...... 173 Member of General Assembly may be member Board of ControL...... 312 Senate not authorized to confirm nominations of executive appointees
during ten day session.............................................................___,............ 230 Split session.................................................................................................... 190 Treasurer authorized to pay mileage_____................................................... 471
GEORGIA RAILROAD AND BANKING COMPANY Liability for corporation talL...................................................................... 448
GOVERNOR Autho~it;r t<? borrow money for public school purposes.......................... 285 Commisswnmg county officers.................................................................... 464 Cancellation of bond of tax collector-No authority.............................. 261 Extradition of prisoners................................................................................ 262 I~orms for general election furnished by.................................................... 278 Fugitive-Authority relating to...............-------------------- 277 :\Ioney in treasury otherwise allocated, authority to use to pay teachers or repay loans for that purpose_---------------------- 258 Overhead rights on Western & Atlantic Railway right of way, lease_ 267 Proceeding to oust a public service corporation from alleged usurpation of power, authority to direct.. ................................------------------- 271 Transfer of insane convicts to State Hospital, without authority to.... 391
HEALTH Construction of Ellis Health Law...........------------------------------------ 320 Pri~oners. may be forced to take treatment for contagious and infectious diseases...........................................------------------------------ 390 Smallpox Yaccination may be compelled by county board of education 127 Term of Pharmacy members on Board of Health_____________.............. --- 322
Vital statistics..........-------------------------------------------- 321 HIGHWAY DEPARTMENT
Authority of General Assembly to regulate employment_____________________ 200 Authority of State to undertake work on highways under N. R. A..... 326 l<'unds impressed to pay school teachers repayable.................................. 305 Refunding certificates, discount, how arrived aL..------------------------- 324 Refunding certificates, use of...................................................................... 323 HOG CHOLERA SERUM Distribution.................................................................................................... 198

-197

HOSPITALS Central of Georgia Hospital not subject to occupation tax_______
HOSPITALS AND CLINICS Occup~.tion tax...----------------------------------------------
HOTELS
Taxation-What constitutes hoteL.................--------------------------------INDUSTRIAL RELATIONS
Dep'lrtment authorized to maintain employment bureau...-------------INSANE PERSONS
:Forms of commitment to State HospitaL....------------------------------------ INSURANCE
Abatement from premium tax.................... ---------------------------------Annuity contracts of life insurance subject to property tax..................
Burial insurance............------------------------------------------------------------Definition of what constitutes insurance_-------------------------- Deposit of casualty company............----------------------------------------Deposit of fire, marine and inland insurance companies........----------- Emergency clause in policies___----------------------------------------------- :Mutual co-operative fire insurance companies-incorporation.............. New York Mortgage Clause and Co-Insurance Clause, use by fire
insurance companies____------------------------------------------------------ Notice of intention to withdraw from State, validity oL...................... Rights of creditors and beneficiaries under policies and annuity con-
t r a c t s______ ------------------------------------------------------------ Rules of Southeastern Underwriters Association_______________...........____________
Taxation of certain certificates_------------------------------------Taxation of insurance companies by municipalities................................ INSURANCE COMMISSIONER
Duty with reference to nonresident companies------------------------ Interest on premiums, promulgation of rule_........................................ INSECTICIDES
Sale oL................----------------------------------------------------IRRIGATION
Agricultural purposes------------------------------------------------- JEWELRY
Sale at public auction.__.....................---------------------------------- JUDICIARY
Trial judge without authority to probate sentence after service begun
or term ended____------------------------------------ .JUSTICE O:F THE PEACE
Disbursi1_1g a~ent an? bookkeeper for :Federal relief work eligible........
Prosecutions m Justice courts____----------------------------- Summary of laws relating to_______ ------------------------------------ .. JUVENILE COURTS
Construction of Act.....----------------------------------------------Designation of Judge...---------------------------------------------------------LIVESTOCK
Taxable situs....----------------------------------------------------------------------LUMBER DEALEHS
Occupation tax........--------------------------------------------------- ---MARRIAGE LICENSES
Fees___------------------------------------------------- ___ .---_ ...... ------MILEAGE
State officials and employees_________ ---------------- --------MILEAGE TAX
Hauling under contract with State Highway Department subject......
Movement of gasoline subject.. ........ ----------------------------------------- Movement of material to build school house subject..............................
Veteran not exempt........---------- MILITIA
Payment of expenses........------------------------------- ___ ----------------------...

Page
457
45(i
452
473
1!6
349 339 354 336 35G 351 301 468
353 358
350 359 3S7 345
337 338
28!!
235
63
300
!11 1 122 36ii!
1!5 38
59
299
111
)!37
8!1 84 81! Sii! 280

498

Page

MINSTREL SHOW

Taxation-when operated by veteran............. .......................................... 80

~IOTOR CARRIERS

Issuance of notes_........................................................................................ 40.5

License issued to interstate carrier not transferable............................... 406

:MOTOR FUELS

Taxation.......................................................................................................... 87

Taxation when sold to C. C. C................................................................... 94

Taxation when sold to State institutions.................................................. 97

Taxation when sold to United States........................................................ 95

Taxation when used exclusively on U. S. Fort reservations--......... 96

MOTOR FUEL DISTRIBUTORS

Bond................................................................................................................ 84

No loss deductible_.................................................................................... 86

MOTOR VEHICLES

Sale of lists of automobile owners.............................................................. 412

MUTUAL BUILDING AND LOAN ASSOCIATIONS

Occupation tax.............................................................................................. 44!i

NARCOTIC DRUGS

Who may selL.............................................................................................. 19

NATIONAL FORESTS

Purchase.......................................................................................................... !i93

NAVAL STORES

Person buying and grading rosin should be appointed and qualify as

an inspector................................................................................................ 380

NOTARY PUBLIC AND EX OFFICIO JUSTICE OF PEACE

Vacancy in office, how filled........................................................................ 111

NULLA BONA ENTRIES

Sheriff's fees.................................................................................................... l!i!i

NURSES

Construction of Act licensing...................................................................... 371

Definition of a practical nurse.................................................................... 37!i

Disabled in World War entitled to same exemption as disabled veteran 48!i

Requirements for registration as graduate nurse-.................................. 378

Validity of regulations.................................................................................. 289

OFFICERS

Bonds.............................................................................................................. !i!i5

OPTOMETRY

Department store not registered may conduct optical department

under its name by employing a registered optometrist__................ 379

ORDINARIES

Disposition of pension funds...................... ................................... ......... ... llli

Docket book, location................................................................................. 119

Duty in connection with veteran's exemption from taxation............... 51

Duty in connection with vacancy in office of Notary Public and ex

officio Justice of Peace.............................................................................. 111

Fee for pistol license-................ ................................................................. 119

Fees for marriage licenses............................................................................ 111

Fees when acting in absence of judge of Superior Court........................ 116

O

Y~S~T~E1R~~BlOrT~T:O;M,gS~r,~~fi~.

:~,












.



























,

:l!

Assignment of lease_....__..

............................

213

PAROLEE

Hearing after re-arrest................................................_

H

PATENT MEDICINE

Sale......................................................................................

13

PATENT OH PROPIUETAltY PREPARATIONS

Regulation of sale..................................................................

\!0

499
Page
PEDDLERS Occupation tax............--.---------------------------------------------------------------------- 4115
PEDDLING County authority may regulate......------------------------------------------------------ 471)
PENSION FUND Disposition by ordinary------------------------------------------------------------------------------ 115 Due at death of pensioner________-------------------------------------------------------- 1!91 Fees for pension work______________________________________________________________________________ 1!1
Funeral expenses of Confederate veteran...............------------------------------- 388 Widow of Confederate veteran who remarried not entitled to pension
after death of second husband, not veteran...--------------------------- 581 PHARMACY BOARD
Authority to make regulations...------------------------------------------------------------- 16 Number of times applicant may take examination_________________________________ IS!
Narcotic drugs, sale.... --------------------------------------------------------------------- 19 Sale of patent or proprietary preparations----------------------------------------- 1!0 Sale of poisons and patent medicines------------------------------------------------ IS POISONS Sale regulated..--------------------------------------------:--------------------------------------- IS POLL TAXES Costs where segregated and paid..----'------------------------------------------------------ S!lll) Penalty for failure to return......---------------------------------------------------------------- 6!l POOL AND BILLIARD TABLES Ad valorem taxation__________________________________________________________________________________ 65 PREMIUM TAX Abatement from .-------------------------------------------------------------------------------------- 841) PRINTING Liability of State Printer under contract.._______________________________________________ 407 PRISON COMMISSION Definition of felony convict-............------------------------------------------------------- 586 Federal conviction on State indictment, State executes sentence.......... 591! Prisoner not entitled to deduction of time under certain conditions.... 881) Transfer of insane convicts to State Hospital, Governor without
authority to; Prison Commission must provide for them____........... 8!11 Treatment for contagious and infectious diseases, prisoners may be
compelled to take........----------------------------------------------------------------------- 890 PROBATION
Re-arrest of parolee............----------------------------------------------------------------------- 44 PROFESSIONS
Druggist......---------------------------------------------------------------------------------------------- II PUBLIC SERVICE COMMISSION
Authority in connection with pullman surcharges in intrastate commerce________________________________________________________________________________________________________ 895
Issuance of notes by motor carriers-------------------------------------------------------- 405 Interstate motor carriers' license not transferable_________________________________ 406 Proceeding to oust from usurpation of power, public service corpo-
ration______________________________________________________________________________________________________ !l71 Regulat!o~ of water rates furnished by municipalities beyond corpo-
rate hm1ts_________________________________________________________________________________________________ 399 RAILROADS
Authority of Georgia Public Service Commission in connection with pullman surcharges in intrastate traffic._____________________________________________ 508
REAL ESTATE BROKERS Veteran holding disability certificate not exempt from regulatory fee.. S74
RECORDING Clerk's fees-------------------------------------------------------------------------- I 06
REGENTS Georgia School of Technology not subject to city ordinances regulating electrical construction_..................----------------------------- 408 :\Tecessary for Senate to confiriD------------------------------------------------ 306

1500

Page

RESTAURANTS Occupation tax, Place of business.__....................... ............................... 485

ROLLING STORES

Occupation tax...... -------------------------------- i55

SECRETARY OF STATE Commissioning county officers.................................................................... 464 Trade marks, trade names, etc., registration_........................................ 463

SECURITIES Act of 1920 supersedes code sections-........................................................72, 347 Assignment of interests in oil and gas royalties and delay rentals

undel." mineral leases securities ---------------------- 462 Definition........................................................................................................ 462 What transactions exempt________.............................................................. 467

SENATE Necessary to confirm members of Board of Control and Board of

Regents---------------------------------------------------------------------- 306 Not authorized to confirm nominations of executive appointees dur-
ing ten-day session.................................................................................... l!30

SENATOR Ineligible to be solicitor city court_ .......................... .............................. 307

SENTENCES
Authority of Judge in imposing.................................................................. 388 Computation of_........................................................................................ 387 Trial judge without authority to probate sentence after service begun
or term ended............................................................................................ 300

SHERIFFS Fees generally................................................................................................ 106 Fees for summoning jury for city courtS-.............................................. 1!H
. Fees where sheriff leaves county to bring back escaped prisoner............ 124 Fees for nulla bona entries.......................................................................... 122 Vacancy in office, how filled........................................................................ 121

SKYL~~D STAGES, _INC.

.

Ltablli~ for occupation tax on corporations............................................ 450

SOLICITOR

Appointment for county court_............................................................... 255

Senator ineligible to hold office as solicitor-.......................................... 307

Solicitor of city court also member of county board of education

holding two county offices_...................................................................... 150

Venue changed, fees...................................................................................... 247

SOLICITORS-GENERAL

Bonds.............................................................................................................. )!45

Board of Control member, may be also.................................................... 310

Fees for appearing in Supreme Court on certiorari..................................... l!42

STATE BONDS

Issuance of duplicates--............................................................................ 477

STATE CHEMIST

Salary.............................................................................................................

9

STATE DEPOSITS

Interest on...................................................................................................... 35

STATE DEPOSITORIES

Home Owners Loan Corporation bonds nor acceptable as collateral

covering State deposits______.................................................................. 476

Not affected by Glass-Stegall Act.............................................................. 475

STATE HOSPITAL I?OR INSANE

Inquest over patients who commit suicide................................................ 37

Surgical operations on male patients, authority of superintendent to

perform_...................................................................................................... 40

STATE PROPERTY

How disposed of............................................................................................ 472

501

Pare

STATE REVENUE COMMISSION
Authority regarding sale of lists of automobile owners of the State...... Contraband goods, duties in connection with.......................................... Disposition of fees_.................................................................................... Inheritance tax refund unauthorized on voluntary payment................ STOCKS AND BOND DEALERS Occupation tax..............................................................................................
SUPERIOR COURT CLERKS Fees generally................................................................................................ Fees for recording mortgages......................................................................
TAX ASSESSOR
Disqualified to hold any other office............----- Duties.............................................................................................................. Duties of county board................................................................................ TAXATION Advertising property for sale, who pays.................................................... Acceptance of Clearing House Scrip in payment.................................... Acceptance of county warrants in paymenL........................................... Authority of county board of commissioners in collecting taxes............ Banks, priority of taxes................................................................................ Beauty shops, classification__..................................................................... Board of Income Tax Review, duties........................................................ Central of Georgia Hospital not liable for occupation tax on hospitals..
Chauffeurs, definition of___----------------------- Cigar and Cigarette
Construction of Act.................................................................................. Duty of Revenue Commission in connection with contraband goods Collectors' duties relative to tax defaulters.............................................. Commission of tax collectors on delinquent corporation taxes................ Corporation having more than two places of business............................ Costs, how paid, where poll taxes segregated and paid........................ County warrants, taxability........................................................................ Domestic and domesticated corporations.................................................. Occupation Hotels, what constitutes hoteL.............................................................. Hospitals and clinics_____........................................................................
Lumber dealers.......................................................................................... Mutual building and loan associations, not subject............................ Peddlers and rolling stores__............................................................... Stocks or bond dealers.............................................................................. Warehouses................................................................................................ Undertakers, definition_____..................................................................... Used car dealers........................................................................................ No tax collecting agency of State may relieve taxpayer of penalty when tax is delinquent_........................................................................... Ordinary's duties in connection with veterans exemption.................... Premium, abatement from__................................................................... Processing tax, State and governmental agencies not subject............ Personal property, taxable situs_............................;.................................. Poll, C??stitutional ame~dment supersedes city charter provisions reqmrmg payment of c1ty taxes.............................................................. Pool and billiard tables, ad valorem tax on.............................................. Procedure for exemption of veterans.......................................................... Professional, disabled veteran not exempt................................................ Property of corporation not used for private gain or income not subject to ad valorem tax.............................................................................. Real estate owned by banks........................................................................ Registration with ordinary before beginning business............................ Refund, gasoline tax._.................................................................................. Return of poll taxes...................................................................................... School district digest....................................................................................

Ut 420 205 4011 .
482
106 lOS
418 gg 67
59 85 1011 57 46 71 421 457 415
410 420 109 411 451 259 478
74
452 456 299 442 455 482 459 458 480
489 51
849 882 101
489 65 49
427
446 808
70 87 62 142

50~

Page

TAXATION-Cont'd

SShtaenridfifns'gfetiems bfoerr nounlllaeabsoendalaenntridess--_--_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-__-_-_-_-_-_-_-_-_-_-_-_-_-_-__-_-_-_-_-_-_-_-_-_-_-_-_-_-__-_-_-_-_-_-_-_-_-_-_-_-_-_

122 482

Stock issued by domesticated foreign corporation________________________________ 77

Time for paying over taxes by commissioner or collector.................... 108

Veteran, not exempt from mileage tax------------------------------------------------------ 82

Veteran, license fee for nurserymen, subject..------------------------------------------ 187 Veterans property brought with bonus money, etc. subject to ad

valorem tax..---------------------------------------------------------------------------------------------- 63 Veteran subject to license fee required of seller of plants________________________ 184

Voluntary payment of occupation tax on corporation, cannot be

refunded............------------------------------------------------------------------------------------------ 437 TAX COLLECTOR

Bidder at tax sale where acting as ex officio sheriff-------------------------------- 41

Cancellation of bond---------------------------------------------------------------------------- 261 Commissions of retiring collector....------------------------------------------------------------ 248 Duties under Accounting Act.--------------------------------------------------------------------- 52 Time for paying over taxes..----------------------------------------------------------------------- 108 TAX EQUALIZERS

Duties of Board__........................................................................................ 60

TAX RECEIVER No commission for making up school district digest__________________________ 142

Equalizers, duties of board............-------------------------------------------------------------- 60 Estoppel, State not estopped from collecting additional tax after

accepting payment in ful'------------------------------------------------------------------------ 433 Exemption of veterans-------------------------------------------------------------------------------- 30~ Exemption in favor of disabled or indigent veteran,s.............................. 484

Exemption from ad valorem taxes, who entitled to................................ 68 Exemption of veterans from occupation taxes________________________________________ 47

Fees of collector for tax fi. fas .....................----------------------------------------------- 256

Gasoline used in school buses............................----------------------------------------- 141 Georgia Railroad and Banking Company, liability for corporation tax 448

Gross Receipts Tax Act Construed............................................................ 418

Income earned before taxpayer moved to Georgia not taxable............ 422

Income, refund of taxes paid on dividends from national banks............ 423

Inheritance tax Iaw construed_.............................................................. 415

Inheritance tax, interest does not accrue until after assessment............ 426

Inheritance tax, refund unauthorized on voluntary payment................ 409 Insurance certifica~es subject to ad ':a!ore~. taxation............................ 357

Insurance compames, taxmg by mumcipahtres........................................ 345

Interest on tax executions............................................................................ 105

Interstate business, foreign corporation doing only, not subject to oc-

cupation taX-............................................................................................ 450

Limitation on local school tax levy............................................................ 143

Livestock, taxable situs................................................................................ 59

Lumber dealers, occupation tax.................................................................. 299

Minstrel show operated by veteran............................................................ 80

Motor fuels sold to C. C. C......................................................................... 94

Motor fuels used in interstate commerce.................................................. 87

Motor fuels sold to State institutions........................................................ 97

Motor fuels sold to United States............................................................. 95 Motor fuels used exclusively on U.S. fort reservation~-------- 96 Mutual building and loan associations not subject to occupation tax.... 442

Occupation tax Automobile and truck dealers____........................................................... 429

Automobile garages, person carrying tools in truck subject............ 431

Automobile financing............................................................................_460, 461

Auto tires and accessories, wholesale and retail_.............................. 430

Auto radios, classification of.................................................... ............... 454

Beauty shops, classification_.................................................................. 71

Bill distributors, definition...................................................................... 432

Central of Georgia Hospital not liable..................... ------------ 457

Page

TAX RECEIVER-Cont'd

Occupation Tax-Cont'd

Collection agencies.................................................................................... 428 Commercial reporting agency, who subject.......................................... 435

Computation on more than one place of business of restaurants........ 435

Corporation, not exempt though owned by disabled veteran............ 436

Corporation, to whom remitted.............................................................. 440 Corporation, who subject........................................................................ 443

Domestic ice machine, liability for........................................................ 453

TEACHERS CERTIFICATION

Authority of State Board of Education_............................................. 135

TIMBER Taxation on leased lands............................................................................. 48~
TRAI!EM~RK, TRADE NAME

Registration.................................................................................................... 463

TRAINING SCHOOL FOR BOYS

Authority to parole inmates...------------------------------------------------------- 39 Authority of superintendent to compel counties to pay return trans-

portation of inmates------------------------------------------------------------------------------- 28 Board of inmates, who pays...------------------------------------------- 36 TREASURY

Fees of Commissioner of Agriculture from apple and peach stamps

Himghuwstaygofuinndtos tirmeapsurreYs-s-e--d---f-o--r--s--c-h--o--o--l--p--u--r-p--o--s-e--s---r-e--p--a-y--a--b--l-e--_-_-_-_-_-_-_-_--_-_-__-_______

283 305

Mileage to members General Assembly, authority to pay_................ 471

State property, how disposed of_-------------------------------------------- 472 Surplus, common schools not entitled to........ ----------------- 281 UNDERTAKER

Occupation tax, definition............................................................................ 458

USED CAR DEALERS

Occupation tax.............................................................................................. 430

VETERANS

Corporation owned by disabled veteran not exempt from occupation

tax on corporations--------------------------------------------------------- 436 Exemption from taxation___.....................................................................302, 484

Exemption from occupation taxes.............................................................. 47

Mileage tax, not exempt.............................................................................. 82

Minstrel show, operation of by veteran, taxation.................................... 80 Not exempt from certain license fees-.................................................... ~II

Nurserymen's license, not exempt--------------------------------------------------- 187 Ordinaries' duties in connection with exemption from taxation............ 51

Property bought with bonus, etc. subject to ad valorem taxation........ 63

Procedure for exemption from taxation.................................................... 49

Professional tax, not exempL.................................................................... 427 Real Estate brokers fees, not exempt........................................................ 374

Registration with ordinary before doing business.................................... 112 Regulatory fee required of barbers, not exempt from_....................... 363

Subject to license for selling plants............................................................ 184 VITAL STATISTICS

Construction of law..................--------------------------- 321 VOTERS
Proper method of voting.............................................................................. 279 Qualification when property sold for taxes-.............................................. 64 Registrars, duties of board......---------------------------------------------------------- 275 Requirements, constitutional amendment supersedes city charters...... 489

WAREHOUSES

Occupation tax.............................................................................................. 459

WELFARE

Use of Emergency Fund..........----------------------------- 286 WESTERN AND ATLANTIC RAILROAD

Disposition of rentals.................................................................................... 238

!.easing of overhead rights.......................................................................... 267