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