Opinions of the Attorney General 1935-1936

OPINIONS OF THE ATTORNEY GENERAL
1935-1936 M. J. YEOMANS
Attorney General
1939 THE STEIN PRINTING CO.
Atlanta, Ga.

IN MEMORIAM
(!'1.1~~~'~j :J~srn e~-l~~s

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

legislator, served Geo

rsgoilaicaitnodr1

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, 19101 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 lor lour consecutive terms and retired on February 2, 1939 to accept the position of Director-Attorney lor the State Hospital Authority, in which capacity he was placed in charge of the Four Million Dollar Building Project lor 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 lor him. In response to that gilt, Judge Yeomans wrote the Law Depart-
ment a letter which is set out here lor 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 any definite purpose except service I could, and to do unto others

to as

live honestly, treat all I would like that they

slhaoirullyd1

render what do unto me.

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

been scars

tmhuissunindfelrkstteodod1h

and ave

lor not

that reason I have been permanent.

now and then been criticized. They have laded. It is not

The 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 thoughtful, 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 his passing the State has lost a faithful servant. I personally have lost a valued friend. Behind him Judge Yeomans has left a record rich alike in usefulness
and honor. His life will be an inspiration to those who were privileged to be closely associated with him.-Elli.r Arnall.

ATTORNEYS-GENERAL
1868-1872..........................................................................Henry P. Farrer 1872-1877-----------------------------------------------------------------------N. J. Hammond 1877-1880..-----------------------------Robert N. Ely 188(}-1890.........................-----------------Clifford L. Anderson 189(}-1891.........-------------------------George N. Lester 1891-1892..........................................----------------------------------------\V. A. Little 1892-1902................................................................................J. M. Terrell 1902-1902............................................................................Boykin Wright 1902-1910------------------------------------------John C. Hart 1910-1911.........................................................................-Hewlett A. Hall 1911-1914..........................................----------------------------------Thos. S. Felder 1914-1915......------Warren Grice 1915-1920_____________ ............--------------------------------------------......Clifford Walker 192(}-1921..........................-----------------------------------------------------R. A. Denny 1921-1932 (May 5th)..................................................George l\1. Napier 1932-1932 (May 9-Dec. 31)......................................Lawrence S. Camp 1933-1937............................................................................M. J. Yeomans

REGISTER OF DEPARTMENT OF LAW FOR 1935-1936
M. J. YEOMANS Attorney General
B. D. MURPHY Assistant Attorney General
DAVE M. PARKER Assistant Attorney General
B.s. MILLER
Assistant Attorney General
JoHN T. GoREE-Jan. 1, 1935-May 15, 1935 Assistant Attorney General
ALLEN PosT-May 15, 1935-July 15, 1935 Assistant Attorney General
0. H. DuKEs-July 15, 1935-December 31, 1936 Assistant Attorney General
J. J. E. ANDERSON-Jan. 1, 1935-May 15, 1935 Assistant Attorney General
GEORGE L. GooDE-May 15, 1935-December 31, 1936 Assistant Attorney General
E. J. CLOWER Counsel
DIXIE DRAKE Chief Clerk
STENOGRAPHERS: Nell Clark
Grace Canington Emma Steadman

7
THE HISTORY, POWERS AND DUTIES OF THE
ATTORNEY GENERAL
On account of the large amount of litigation during the last four years, some of which was rather unusual, the office of Attorney General has been somewhat prominently before the people. ,On account of the large number of important Acts passed by the recent General Assembly and the several Resolutions submitting proposed amendments to the Constitution, which have been ratified, the office of Attorney General may be equally prominent before the people for the next four years. Every Act of the General Assembly authorizing the collection of taxes and the distribution of funds for the support of the Government and the various institutions of the State, and every constitutional amendment of widespread importance adopted by the people will in all probability be haled before the courts for judicial interpretation.
Despite the publicity which has been given to the office of Attorney General, some of which has been misleading, there still exists a great deal of misunderstanding as to the scope, power, authority and duties of this State officer.
Without any reference to what may have happened in the past, or what may now be happening, or what may happen in the future, I think it might be helpful to discuss briefly the nature of the office of Attorney General, the duties of that official, and something of his authority and lack of authority. Often an official's lack of authority is almost as important as his authority. It is just as essential to know what a public officer cannot do as it is to know what he can do.
We have had an Attorney General since early in the colonial history of Georgia. The first Attorney General was William Clifton, who was appointed August 6, 1754, under the Provincial Government. At that time, the Attorney General was a State officer, provided for by legislative enactment. The office lost something of its dignity in 1789 when the judiciary act of that year provided for two Attorneys General, or rather for one Attorney General and one Solicitor General, who seem to have been of equal dignity, each performing certain duties within the judicial circuit to which he was assigned.
The Judiciary Act of 1797 continued this arrangement, providing for an Attorney General and two Solicitors General, one being assigned to each of the three judicial circuits. There seems to have been no distinction between the Attorney General and the Solicitors General, as to authority, powers and duties. Each received a yearly salary of $225.00 and certain fees. They were simply prosecuting officers. The Attorney General had no duties to perform in connection with the operations of the State Government, except those of prosecuting criminals.
Th~ arrangement made by the Judiciary Act of 1797 was sanc!wned by the Constitution of 1798, which provided for the electiOn of Attorney General and Solicitor General by the General Assembly. There was no provision for determining which of the

8
State's attorneys should be known as the Attorney General. This arrangement continued until 1861. The Code of 1861, without any previous legislative enactment, provided that the Solicitor General whose circuit embraced the seat of government should be the Attorney General. No doubt this was but a recognition of a custom which had grown up through the years.
For the first time, the Constitution of 1868 made the Attorney General a constitutional officer. He then became Attorney General in fact, and the legal advisor of the Governor and other departments of the State Government. V{e have since had an Attorney General who is a constitutional officer, and whose duties are defined by the Constitution and the laws of the State.
Our present Constitution, that of 1877, provides that "there shall be an Attorney General of this State, who shall be elected by the people at the same time, for the same term, and in the same manner as the Governor." The same instrument defines the duties of the Attorney General. They are: "To act as the legal advisor of the Executive Department, to represent the State in the Supreme Court in all capital felonies; and in all civil and criminal cases in any court 'when required by the Governor' and to perform such other services as shall be required of him by law."
The old law defining the duties of the Attorney General and still of force as Section 4Q-1602 of the Code of 1933 follows, in general terms, this language of the Constitution.
In every case, the duties which the Attorney General is authorized to perform are to be "required" by the Governor. It is his' duty "when required so to do by the Governor", to give his opinion in writing, or otherwise, on any question of law connected with the interest of the State or with the duties of any of the departments. "When required by the Governor", he is to prepare all contracts and writings in relation to any matter in which the State is interested. "When required so to do by the Governor", he is to attend on the part of the State to all criminal causes in any of the circuits, when the Solicitor General thereof is prosecuted, and to all other criminal or civil causes to which the State is a party. Even those duties which the Constitution confided to the Attorney General are to be performed under the statute "when required" by the Governor. Since he can act as legal advisor to the Executive only when consulted, it might seem that the only duty plainly entrusted to him and which he may perform without the sanction of any other official, is that of appearing on behalf of the State in capital felony cases before the Supreme Court. Actually such is not the case, as we shall see when we consider the later Acts relating to the Attorney General.
We had no Department of Law in a real sense until the enactment of the Reorganization Act of 1931. There was provision for the Attorney General and one Assistant. No doubt this was sufficient in the last century and in the early years of the present century. But within the past fifteen or twenty years, the legal business of the State has increased by leaps and bounds. It became physically impossible for the Attorney General and his one assistant to attend to

9
all of the State's business. There arose many cases of great importance relating to the enforcement of our tax laws and other laws. The departments involved were compelled to employ outside counsel, which resulted in a vast increase in the cost of litigation. It is best illustrated by the fact that for the year 1931, the last year before the Department of Law came into being, the cost to the State of litigation was almost five times the cost of operation of the Law Department for each of the years 1933, 1934, 1935 and 1936.
The Reorganization Act provides for a Department of Law with the Attorney General as the head thereof, and with six Assistant Attorneys General, of equal rank among themselves. They are required to devote their entire time to their duties, and may not otherwise engage in the practice of law. One assistant is assigned to the Highway Department and paid by that Department; another to the Public Service Commission, and paid by that body, and one to the Revenue Department and paid by that Department. Five of the Assistants are appointed by the Governor, with the approval of the Attorney General and confirmation by the Senate, and the remaining Assistant is appointed by the Attorney General. Any of the five assistants appointed by the Governor and approved by the Attorney General may be removed at any time by the Governor, with the approval of the Attorney General.
During my tenure of office the Department of Law until 1937 operated with five assistants, instead of the six authorized by statute, despite the fact that the great volume of litigation resulting from investigations and rate orders of the Public Service Commission made it necessary to assign two assistants to that Department for much of the time.
The Reorganization Act vests the Department of Law "with complete and exclusive authority and jurisdiction in all matters of law relating to every department of the State other than the judicial and legislative branches." It prohibits the Departments, Commissions, Institutions, Offices and Boards of the State Government from employing counsel in any matter whatsoever, although the Governor may "in specific instances and on special causes", appoint "special assistants for such specific service" in his discretion, when the need arises, and fix their compensation. The causes must be special and not general, and so must the employment.
This Section of the 1931 Act, now carried in our Code as Section 4()-1609, greatly broadened the authority of the Attorney General with respect to litigation in which the State is a party, or in which the State is interested. The exact extent of the "complete and exclusive authority and jurisdiction" conferred by the Reorganization Act has never been judicially determined by our State Courts. However, the Federal District Court for the Northern District of Georgia held some five years ago, in a case which attracted considerable attention, that a suit instituted by one of the Departments through other counsel, and without the concurrence of the Attorney General, was subject to the control of the Attorney General, who could dismiss the action without the consent, and over the protest, of the plaintiff.

10
This ruling was based upon the decisions of many of our State and Federal Courts, some of which hold that judgments based upon proceedings brought by departments without the approval of the Attorney General are void. It was not invoked in this State until 1933, and was considered novel.
The Reorganization Act empowers the Governor to direct the Department of Law, through the Attorney General, to institute and prosecute such matters, proceedings, and litigations as the Governor shall deem to the best interest of the people of the State.
An Act now embodied in Section 40-~09 of the Code of 1933, and still of force, empowers the Governor to provide for the defense of any suit instituted against the State, or against any other person, in the result of which the State has an interest, where brought under pretense of any claim inconsistent with the sovereignty, jurisdiction, or right of the State.
Under this statute, the Department of Law has been called upon during my incumbency, to defend a suit for personal injuries brought against a private individual, where the cause of action declared upon was alleged negligence of the defendant in failing to provide medical care at the expense of the State. In another case, we defended an ejectment suit against an individual who was not a State officer, but was alleged to be in possession of land which had been conveyed to the trustee of one of the A & M Schools. We have had occasion, under the same authority, to defend one suit for damages growing out of the arrest of a spectator who undertook to crash the gate at a University football game, and two suits growing out of alleged malpractices upon hospital patients coming under the jurisdiction of the State Medical College.
The tort actions against the Highway Department have been too numerous to even recount, although a recent decision by the Supreme Court to the effect that this Department is not subject generally to suit for torts, has somewhat discouraged litigation of this kind.
Our principal fields of litigation have been in tax cases and rate cases. The efforts of the Georgia Public Service Commission to reduce utility rates, which began in the summer of 1933, produced an almost endless chain of lawsuits. The Department of Law prepared and tried, in court, nearly a hundred rate cases within a period of about a year and a half. This does not take into consideration the rate investigations inaugurated and held by the Commission, some of them lasting for weeks.
Income tax cases, occupation tax cases, and sales and inheritance tax cases, have become so numerous as to be treated as routine litigation. They usually arise by affidavits of illegality. We did have one income tax case involving some three hundred thousand dollars, which we finally managed to win in the Supreme Court on rehearing, after adverse decisions in both the Trial Court and the Court of Appeals. The amount involved in the particular case was small, but the precedent determined the right of the State to a large amount of additional revenue. With the development of the income tax as one of the State's principal sources of revenue, litigation of this

11
character will increase. The income tax division now requires almost the entire time of one member of the Department.
During my incumbency, the Department of Law has appeared several times in the Supreme Court of the United States; once to defend an appeal from the Supreme Court of Georgia in a case brought to test the constitutionality of our Motor-Carrier Act. The Court upheld the law. Another occasion was an original appearance in the case brought to test the constitutionality of the Bankhead Cotton Control Law. The history of this case is too recent to require further discussion. The Congress repealed the Act the day it was set for argument in the Supreme Court. I might say in passing, however, that this was the first original suit against the Government which the Court had permitted to be filed since the inauguration of the present practice which requires permission of the Court before the filing of original suits. The Insurance. Agency Act of the Georgia General Assembly of 1935 was held valid by the Supreme Court of Georgia. It was appealed to the Supreme Court of the United States, which overruled the Supreme Court of Georgia.
The General Assembly in 1935 passed an Act fixing the fees which tobacco warehousemen could charge their customers. An action was brought against the Attorney General, the Solicitors General of the circuits in which the tobacco warehouses are located, and Sheriffs of the various counties in the District Court of the Middle District of Georgia to restrain them from enforcing the Act. The court ordered the difference in fees ordinarily charged by the warehousemen and the fees fixed by the General Assembly to be impounded. These fees now amount to something over $325,000.00. A threejudge court was convened and a two to one decision was rendered in favor of the validity of the Act. An appeal was taken by the warehousemen to the Supreme Court of the United States. It was argued by the Law Department on May 4th and a decision was rendered affirming the judgment of the three-judge court. The State had no direct interest in the case and neither the Attorney General nor anyone connected with the Law Department received any compensation for the services rendered. It brought the tobacco growers about $300,000.00.
In addition to the cases which arise in the ordinary course of events, we have had a number of cases which might be said to be of a political nature. They have been the subject of a good deal of public discussion, and it will not profit anyone to discuss them further here. ~n all of these cases the Department of Law has acted under the duty Imposed by statute to defend or bring actions of this sort when required by the Governor.
The Attorney General, as the head of the Legal Department, is no~ in the position usually occupied by a lawyer. He can choose neither his clients nor his cases. And I might say, on the other side of the question, that his clients cannot choose their lawyer. They have to take the Attorney General, whether they like it or not, and he has to take them, because the law fixes their relationship. He must represent the various departments when they become involved

in litigation, even though they may get into litigation by not consulting him or by not following his advice.
Briefly stated, the things which the Attorney General may do are these:
1. He may render opinions to the Governor or to any Department of the State, when required by the Governor so to do, provided the opinion is connected with the interest of the State, or with the duties of any of the departments. In actual practice, the Attorney General furnishes opinions directly to the various State Departments, without the formality of the concurrence of the Governor in the request.
2. At the direction of the Governor, he may defend any suit brought against the State, or any department or official of. the State, where the interests of the State are involved, or the suit is under pretense or a claim inconsistent with the sovereignty, jurisdiction or rights of the State.
3. He may institute suits on behalf of the State, or any department or agency of the State, at the direction of the Governor.
4. He may appear on behalf of the State in the prosecution of criminal cases in the trial courts, when required to do so by the Governor, or when the Solicitor General is prosecuted.
5. He may appear on behalf of the State in the Supreme Court in all capital felonies. And I might say, by way of parenthesis, that we have had an average of nearly seventy-five capital cases in the
Supreme Court each year since l have been in office. This work re-
quires almost the entire time of one member of the Department. 6. He may act as the legal advisor of the Governor, when called
upon in such capacity. 7. He may advise the General Assembly, or either branch thereof,
when called upon, and aid in the preparation of bills. In actual practice, but few of the most important bills or constitu-
tional amendments are prepared by the Law Department. Even when they are prepared, amendments are offered from the floor, so that in the final form they are scarcely recognizable.
In some States provisions are made for a Drafting Commission composed of men of known ability and experience, whose duties are to supervise the drafting of all bills and amendments, supervise them as to constitutionality and form and for conflict in laws, before they are introduced. If we had such a Commission in this State, much doubt and uncertainty as to the meaning of our laws would be eliminated and future procedures very much simplified. It would prevent much needless litigation and relieve much uncertainty.
Having told you what the Attorney General may do, I think I should also tell you some of the things he may not do:
I. He cannot consent for the State to be sued. I have been requested, on several occasions, to consent to a suit being brought against the State. The Attorney General has no such authority. Neither has any other State officer. A consent on the part of the State to be sued must be found in some legislative enactment.
2. He cannot bring suits on behalf of the State except at the direc-

18
tion of the Governor. It has been held by the Supreme Court of the United States that where a suit is instituted in the name of a State, by the Attorney General of the State, it will be conclusively presumed that the action is authorized. This ruling, however, does not enlarge the statutory authority of the Attorney General. It simply presumes that whatever may be necessary to such authority has been done.
3. The Attorney General has no authority to render opinions to private individuals. The Department of Law has had, and still has, a large volume of correspondence with people over the State who seek advice upon various legal questions. Where such a request. does not relate to pending litigation, we try to answer these questions, always making it plain that the answer given is not to be taken as an opinion of the Attorney General, but merely as the personal opinion of the writer. Perhaps the practice of answering such inquiries should be abandoned altogether, but, for obvious reasons, this would be hard to do.
4. The Attorney General, as such, has no authority to advise the various counties and cities of the State. He is a State officer, and his duties are confined by law to matters relating to the State government. He is not an overlord of the legal affairs of the counties or cities. An opinion furnished a county or city by the Attorney General, and in an effort to be helpful he has furnished thousands, has no more force or effect than the opinion of any other lawyer who might be consulted.
5. The Attorney General has no authority to volunteer advice to . the Governor or the head of any department. He may furnish his opinion when it is requested, but until it is requested, he is wholly without authority. He is not the guardian of the State's affairs nor the overlord of the departments. He can only speak when spoken to.
6. The Attorney General has no authority to compromise tax claims. When I began the practice of law, more years ago than l now care to recall, I thought the thing to do was to fight every case to the last ditch. I practiced that way for a few years, but soon learned that a good compromise is better than a bad fight. During the remainder of my service at the bar as a private attorney, I settled cases when I could do so without injuring my clients. I think my clients profited by this course. I soon found, however, that the Attorney General has no such authority. Where the liability of a taxpayer is fixed by law-and in every case it is-the Attorney General must collect the full amount of the claim or all that he can. He cannot take a less amount and avoid the determination of a doubtful law question. Truly, he must fight to the bitter end. As a matter of fact, nearly every case involves some precedent which will be important in the future. This fact necessitates an appeal when a case is lost in the Trial Court, and gives rise to an appeal by the other side when a case is won. Very few of our cases end with the judgment of the trial judge. Practically all of them are carried up. If they go to the Court of Appeals, there is usually an effort to review the decision of that Court by certiorari to the Supreme Court.

14
These are some of the things that the Attorney General cannot do. Examples might be multiplied almost indefinitely. Mostly they would concern requests for rulings which the Attorney General has no authority to make. For instance, a representative of a bond house requested an opinion as to whether a certain type of security is eligible for investment by insurance companies doing business in Georgia. I had to tell him to consult his own lawyer. I knew, of course, that he wanted information from me because he thought I would give the same information to the Insurance Commissioner. To circumvent me, he asked the Insurance Commissioner for a ruling. Obviously, the ruling was desired for advertising purposes. I had to tell the Insurance Commissioner that neither his department nor mine had any jurisdiction in the matter, unless an Insurance Company requested permission to invest in such a security, or showed such an investment in its annual return.
Things like this happen every day. The representative of a surety company sought a ruling as to whether the company would be liable on the bond of a Tax Collector in a certain event. I had to tell him that the Attorney General had no authority to furnish him advice, and that he should consult his own lawyer. It is easy to see how the State's counsel should not take a position on any question arising in the administration of the affairs of the State, except to advise the State.
I think I may safely say that during the past few years the Department of Law, and the office of Attorney General, have become more and more important in the administration of the State government. With proper administration of the duties placed upon him by law, within the limits of his authority, the Attorney General can and should be helpful to the Executive Department. He must remember, however, that the things he cannot do are just as important as the things he can do, and that his duty as emphatically requires that he refrain from doing things he is not permitted to do as that he perform the duties which he is authorized to perform.
AGRICULTURE-Summary of laws regulating sale of commercial fertilizers
March 6, 1935 Hon. Tom Linder Commissioner of Agriculture Dear Mr. Linder:
I have yours of the fifth instant, relative to certain fertilizer manufacturers who have begun the practice of putting on their source tags and otherwise attaching to the bags or sacks of fertilizer certain statements and guaranties as to the quality of their products, in addition to the tags required by law, and requesting an opinion as to whether it is permissible for manufacturers to carry additional tags on their goods which are not required by law; and whether the Commissioner of Agriculture has the authority to issue a ruling or

15

regulation on this subject, prohibiting such manufacturers from attaching any tags or statements on the bags or sacks of fertilizer

except those required by law, and whether such a ruling or regulation would have the force and effect of law and how such rule or regula-

tion could be enforced. Section 1 of the Act approved August 18, 1924 (Ga. Laws 1924, p.

100), which section amended Section 2 of the Act of 1901 (Ga: Laws

1901, p. 65) provides in part:

.

"All persons, companies, manufacturers, dealers, or agents.

before selling or offering for sale in this State any commercial

fertilizer or fertilizer material, shall brand or attach to each bag,

barrel or package, the weight of the package, the name and address

of the manufacturer, and the guaranteed analysis of the fertilizer, giving the valuable constituents of the fertilizer in minimum percentages only. These items only shall be branded or printed on the sacks or packages in the following order: 1. Weight of package in pounds. 2. Brand name, or trade-mark. 3. Guaranteed analysis. 4. Available phosphoric acid, per cent.

5. Total nitrogen per cent. 6. Water soluble nitrogen per cent. 7. Potash per cent. 8. Name and address of manufacturer."

In the Act approved August 24, 1929, the caption of which states

that said Act was to

"Further regulate the sale, inspection and distribution of com-

mercial fertilizer and fertilizer materials in the State of Georgia

and fixing additional requirements governing manufacturers, et<;..",

it is stated in the general enacting clause:



"That in addition to and supplemental to all the present laws

governing the sale, manufacture and distribution. of fertilizer and fertilizer materials in the State of Georgia," the Act of 1929 was enacted. Section 4 of this Act provides:
"Each bag or package of commercial fertilizer sold within the State shall have printed on bag or package, or affixed thereto, a tag containing a legible and plainly printed statement in the English language, the following: (Here the Act sets out the language which the tag shall contain.)" It will be noted in comparing Section 2 of the Act of 1901, as amended by Section 1 of the Act of 1924, with Section 4 of the Act of 1929 that the restriction contained in the Act of 1924 as follows:
"These items only shall be branded or printed on the sacks or packages,"

was omitted from the Act of 1929. It is also noted that the Code of
1933, Section 5-1105 codifies the language of Section 4 of the Act of 1929, rather than the language of the Act of 1924. It is therefore my

opinion that Section 2 of the Act of 1901, as amended by the Act of 1.924, was superseded by Section 4 of the Act of 1929, and that Section 4 of the Act of 1929 repealed, by necessary implication, Section 2

16
of the Act of 1901, as both sections cover the same subject matter and the Act of 1929 is exhaustive of the same subject and it seems clear that the legislative intent of Section 4 of the Act of 1929 was to substitute Section 4 of said Act for Section 2 of the Act of 1901. Taking this view of the matter, it is my further opinion that under the existing law you could not prohibit the fertilizer manufacturer from attaching any other tags containing statements of the guarantees of their products to the bags or sacks containing such products, where, in addition to such information, the manufacturer has attached the source tags as required by law.
Relative to the second question in your letter as to your authority to issue a ruling on this subject, prohibiting the fertilizer manufacturers from attaching or affixing to the bags or sacks any additional tags other than source tags required by law, I refer you to Section 5-107 (6) of the Code of Georgia of 1933, which provides:
"The Commissioner shall have under his special charge the analyses of fertilizers. A fair sample of all fertilizer sold in this State shall be submitted to the Commissioner, and the same shall be thoroughly tested by him; and if any brand of fertilizers so tested by the Commissioner is pronounced of no practical value, the sale of the same shall be prohibited." Section 5-108 of the Code provides:
"The Commissioner shall be empowered to make all necessary rules and regulations for the purpose of carrying out the design and intentions of this law." Both of these code sections are taken from the Act of 1874, which created the office of Commissioner of Agriculture (Ga. Laws 1874, p. 7) acting under the authority vested in you by Section 5-108, supra, I am of the opinion that you could promulgate, if in your discretion you think it necessary to do so in order to carry out the design and intentions of the fertilizer laws, a rule or regulation prohibiting the fertilizer companies from attaching to any bag or sack of fertilizer any other tags or information, other than the source tags and the information required by law to be attached to such bags or sacks. However, there is some doubt in my mind even about this position, when I consider the fact that the legislature in 1924 limited, in the manner referred to above, the items which should be branded or printed on the sacks or packages in the manner referred to above, and subsequently thereto, in 1929, as heretofore explained, when re-enacting the law on this subject omitted such restrictions. This omission on the part of the legislature might be held by the courts to manifest a specific legislative intent to remove such restrictions. In enforcing such a rule, should you see fit to promulgate the same I am of the opinion that you could only prohibit the sale of any fertilizer which was branded or tagged in violation of the rule or regulation. The law would not permit you to impose any penalty and your only recourse would be in the nature of an injunction.

17
AGRICULTURE-Branding of mixed feeds
March 28, 1935
Hon. Tom Linder Commissioner of Agriculture Dear Mr. Linder:
This will acknowledge your verbal request for an opinion.as to whether there is any conflict between the provisions of Section 27 (a), which relates to the analysis and branding of "mixed feed", and the standards of purity of feed stuffs adopted by the Commissioner of Agriculture and the State Chemist, acting under Section 21 of the Act approved August 21, 1906, such standards being set out on page 43 of Serial No. 126, issued by the Georgia Department of Agriculture. By Section 27 (a) of the rules and regulations established by the Commissioner of Agriculture, with the advice of the Attorney General, it is provided:
"Any 'mixed feed' analyzing less than 9% in protein, or less than 2% in fat, or more than 12% in fibre shall be classed as 'low grade feed', and so labelled in equal size type as that of the brand named." (See Serial 126, Georgia Department of Agriculture, Sections 27 (a), (b), and (c). Under this section, any mixed feed containing more than 12% fibre must be labelled "low grade feed". By reference to the schedule of standards of purity adopted by the Commissioner of Agriculture and State Chemist, (See page 43, Serial No. 126), it is found that these standards permit dairy feeds to contain as much as 16% fibre, horse and mule feed as much as 15%, and velvet bean meal 18%. However, in this scale of standards there is no provision whatsoever as to the branding or labelling of such products containing more than 12% fibre. Consequently, the standards adopted are not in conflict with Section 27 (a) of the rules and regulations, and it is, therefore, my opinion that dairy feeds, velvet bean feed, and horse and mule feed, or any other mixed feed containing more than 12% fibre must be labelled "low grade feed" in accordance with rule and regulation 27 (a). As to the authority of the Commissioner of Agriculture to prescribe such rules and regulations, I feel that it is only necessary to refer you to Section 42-106 of the Code of Georgia of 1933, which section requires no construction.
WINE-Summary of Wine Act of 1935
May 21, 1935 Hon. Tom Linder Commissioner of Agriculture Dear Mr. Linder:
I have your letter of May 20th with reference to the Georgia Products Wine Act approved March 23, 1935, and ratified by the people in the election of May 15, 1935.

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The Wine Act is entitled an Act to promote temperance and prosperity for Georgia people, to encourage the growing of fruits, grapes and berries on Georgia farms, to legalize the making of light domestic wines and to exempt from taxation wines made from certain crops by producers in Georgia of such crops.
By section one of the Wine Act it is provided that all persons growing crops, either wild or cultivated, of grapes, fruits, or berries, may make fermented wines therefrom, having such alcoholic content as fermentation may produce, for the use of himself and his family and guests, free from any taxation whatever. This section legalizes the manufacture of wines by the producer of the grapes, fruits or berries from which the wine is made, but expressly provides that such wine shall have no higher alcoholic content than is produced by the fermentation of the natural ingredients from which it is made. It is my opinion that this section limits the alcoholic content of any wine made pursuant to section one to that produced by the natural fermentation of the grapes, fruits, or berries from which the wine is made, and that it is illegal to fortify such wines by the addition of any alcohol.
Section two of the Act provides that any grower of such crops may make such wines and sell the same to any person, firm, or corporation who may now or hereafter be le[!ally engaged, as a wholesaler or retailer, in the sale of alcoholic beverages, free from any taxation whatever.
Section two should be construed in connection with section four. In my opinion, for the purpose of construing the 'Vine Act, wine produced by the natural fermentation of the products referred to should be considered an alcoholic beverage. This is true for the reason that section one expressly provides that the wines manufactured by the producer of such crops may have such alcoholic content as may be produced by the fermentation of the product. In my opinion, therefore, the permission given by section two for the sale of wines made under section one to persons legally engaged in the sale of alcoholic beverages, authorizes the sale of such wines to those who are permitted by section four to establish wineries for the manufacture, storage and sale of wines made from Georgia products.
Section four of the Act contains a provision authorizing any county to hold an election to he called upon a petition of 15% of its registered voters for the purpose of determining whether or not the manufacture and sale of wines shall be prohibited in such county. Until such an election is held, and the result thereof is determined to be in favor of the prohibition of the manufacture and sale of such wines, it is legal for the persons authorized by sections one and four to manufacture and sell wines made from Georgia crops. As stated above, section two should be construed in connection with section four. So construing it, I am of the opinion that a farmer or producer of the crops referred to, may manufacture wine therefrom, provided it has no higher alcoholic content than that produced by natural fermentation, and sell the same to any person, firm or corporation who has established a winery under the provisions of section four in a county

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which has not prohibited the manufacture and sale of wine as the result of the election authorized by section four to be held.
You ask certain specific questions which will be answered in their order.
1. Is the importation of wine from outside the State prohibited? Answer: The so-called "Bone Dry Law of Georgia" is not repealed by the Wine Act. It remains of full force and effect except in so far as it has been modified by the Wine Act and the Beer Act enacted at the 1935 session of the General Assembly. While the Bone Dry Law does not undertake to expressly prohibit the importation of wine or other intoxicating liquors from other states, it does make the sale of the prohibited beverages defined by that Act illegal. The only modification of the Bone Dry Law made by the Wine Act of 1935 is to permit, under the limitations prescribed by that Act, the manufacture and sale of wines made from crops produced in the State of Georgia. I am therefore of the opinion that all other wines continue to be prohibited beverages within the meaning of the prohibition law as it existed prior to the enactment of the Wine Act, and that the manufacture, sale, possession, and control of any wines except wines produced in strict conformity with the Wine Act of 1935 is illegal. 2. Is the retail sale of wine manufactured in the State permitted in the State? Answer: Section four of the Wine Act expressly provides that any Georgia producer of wine or wines may sell his product at retail in any county where such wine is not prohibited, by filing with the ordinary of the county an application in which he shall describe the place at which he desires to retail such wine. This section requires the ordinary to keep a list of such applicants open to public inspection. It is my opinion that this section permits the retail sale of wines made from the Georgia products referred to in Section one, by the person growing such crops who has manufactured wine therefrom and also permits the sale of wines manufactured from the Georgia crops referred to in section one by persons, firms, and corporations establishing wineries as authorized by section four. However, the retail sale of such wines by wineries must be under such reasonable rules and regulations as may be promulgated by the Commissioner of Agriculture with the approval of the Governor. . 3. Is the sale of wine by the farmer manufacturing the same allowed to anyone besides persons, firms and corporations conducting wineries? Answer: What is stated in answer to question No. 2 answers this question. Farmers manufacturing wines from crops grown by them may sell the wine at retail provided they comply with section four and make application to the ordinary.
4. Is it legal to import materials for wine making from outside the State?
Answer: As stated in answer to question No. 1 the so-called "Bone Dry" law does not purport to prohibit the importation of such materials. The Wine Act does not permit their importation. How-

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ever, the Wine Act is permiSsive only and as hereinbefore stated permits the manufacture and sale of wines made from grapes, fruits or berries produced in this State. It does not permit the manufacture and sale of any other wines. It is my opinion therefore that it is illegal to manufacture wine from materials brought into the State from another State.
5. Does the new law affect the provisions of the old law relative to wine for sacramental purposes?
Answer: The new law affects the provisions of the old law relating to wine for sacramental purposes only to the extent that wine produced and sold in conformity with the Wine Act of 1935 may be purchased for sacramental purposes without complying with the regulatory provisions of the old law. Persons who were authorized under the old law to purchase, have and use wine for sacramental purposes may still purchase any wine except wine produced and sold in conformity with the 1935 Act, by complying with the regulatory provisions of the old law. Such persons may also purchase, have, and use wine which is produced and sold in conformity with the new law without complying with any regulations except those imposed by the Commissioner of Agriculture on the sale of such wine by wineries. In other words, those desiring to purchase wine produced in another State for sacramental purposes may still do so by complying with the old law, just as if the new law had not been enacted.
TAXATION-Licensing of ice cream manufacturers
August 10, 1935
Hon. Tom Linder Commissioner of Agriculture Dear Mr. Linder:
This will acknowledge receipt of your letter of August 9th inclosing letter of Mr. A. Tenenbaum relative to manufacturer's license tax of Harry Andrias as an ice cream manufacturer.
There is no authority of law for a license fee on an ice cream manufacturer under the Dairy and Dairy Products Act, which is contained in the Code of 1933 as Sections 42-501 to 42-519 inclusive.
Ice cream manufacturers are required to obtain a license at the time they build their plants but there is no fee required for this license. The evident purpose for requiring this license is that the Commissioner may have information of the location and establishment of such a business in order that it may be properly inspected and to insure collection of the butter fat tax required by the provisions of Section 42-513. This section requires that all ice cream factories shall pay quarterly on the 15th of January, April, July and October, 50 for each 1000 gallons of ice cream manufactured during the preceding calendar months. One who manufactures his own products and sells at retail is a manufacturer of ice cream, although he does not sell at wholesale.

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Section 42-514 requires an annual license fee of $5.00 for cream testers at cream or milk buying stations. The applicant is required to stand an examination to obtain this license.
By the provisions of Section 42-515 it is unlawful to establish any milk or cream buying station without obtaining a license, which is $2.00 annually, and by the provisions of Section 42-516 it is unlawful to engage in the milk or cream brokerage business without obtaining a license, which is $10.00 annually. Section 42-502 defines the term "milk or cream broker" as "any business that is conducted for the purpose of purchasing milk, cream or butter fat with the intent of resale without being converted into a finished product."
These are the only license fees required in connection with the enforcement of the Dairy and Dairy Products Law.
By the provisions of Section 92-1002 "Each person, firm, or corporation manufacturing cream, or selling same at wholesale, in or near cities of more than 50,000 inhabitants, shall pay $100.00; in or near cities of from 20,000 to 50,000 inhabitants, $50.00; in or near cities of from 10,000 to 20,000, $50.00; and in or near cities of less than 10,000 inhabitants, $10.00: Provided, that the word 'near' as used in this section shall be construed to mean within a radius of three miles of the corporate limits of cities in this section referred to."
This is an occupation tax and the collection thereof is enforced by the State Revenue Commission.
FARMERS MARKETs-Commissioner of Agriculture authorized to use any funds of the department which may be available in establishing and operating farmers markets
August 30, 1935
Hon. Tom Linder Commissioner of Agriculture Dear Mr. Linder:
I have you letter of August 29th in which you request my opinion as to whether or not the Commissioner of Agriculture is authorized to use any funds of the department which may be available in establishing and operating farmers markets as authorized by the Act of the General Assembly approved February 25, 1935.
This Act generally authorizes and directs the Commissioner of Agriculture to acquire by lease, rent, gift, or otherwise, as in his discretion he may see fit, necessary sites in this State on which to conduct farmers markets, and when a site has been so acquired to establish thereon a farmers' market. He is further authorized to establish necessary rules and regulations, provide experienced and competent graders and classifiers, establish means of communication and otherwise provide by regulation for the operation of such markets. The Commissioner of Agriculture is authorized to prescribe and cause reasonable charges to pay the necessary costs of acquiring, operating and maintaining such sites for markets. Funds

thus collected are allocated to the Commissioner of Agriculture for the purpose of carrying out the provisions of this Act.
It is expressly provided by Section 13 that the Commissioner of Agriculture is authorized to use every division of the Department of Agriculture, including the Bureau of Markets, and to exercise all powers heretofore granted to the Commissioner of Agriculture in carrying out the provisions of the :Marketing Act.
While the Act, as stated, does allocate funds derived from the operation of the market for the purpose of paying the expenses of acquiring and establishing and maintaining such market, it does not, either expressly or impliedly, limit the amount which may be expended to the revenue derived under the Act. This is true for the reason that the Commissioner of Agriculture is simply authorized to provide reasonable charges for the services rendered, and is not required so to do.
The present appropriation to the Department of Agriculture, as carried in the General Appropriations Act of 1933, is an appropriation of a stated sum of money "for expenses of operation." In my opinion the appropriation carried by this Act is available to defray any expenses incident to the execution of any of the duties imposed by law on the Commissioner of Agriculture, including those imposed by the Marketing Act of 1935. I am therefore of the opinion that the Commissioner of Agriculture may use funds appropriated for the expense of operation of the Department of Agriculture by the Act of 1933 in establishing and maintaining the farmers' markets provided for by the Act of 1935 in addition to any receipts derived from the operation of such markets.
VETERINARIAN-Authority of Commissioner of Agriculture to pay salary of Veterinarian
January 1, 1935 Hon. Tom Linder Commissioner of Agriculture Dear Mr. Linder:
I have your letter of January first requesting my opmwn as to whether or not you are authorized as Commissioner of Agriculture to pay to the person who was State Veterinarian at the time of the passage of the General Appropriations Act of 1933 the salary provided by law for the State Veterinarian out of the appropriation of $156,000 "for expenses of operation" of the Department of Agriculture.
The General Appropriations Act of 1933 appropriates the sum of $156,000 for each of the years 1934 and 1935 "for expenses of operation of the Department of Agriculture." If the Act had gone no further than this, in my opinion, it should have been construed as appropriating that sum for all of the expenses of operation including those of the Veterinary Division. However, the Act went further and made a separate and distinct appropriation of $50,000 "for the

expenses of operation of the Division of the State Veterinarian." The legislature thus plainly manifested its intention not only that the expenses of ~operation of the Division of the State Veterinarian should be paid from the separate appropriation of $50,000 made for that purpose, but that no part of the expenses of operating that division should be paid from the separate appropriation of $156,000 made for the expenses of operating the Department. The later appropriation of $50,000 for the expenses of operation of the Division of the State Veterinarian was vetoed by the Governor, as authorized by the Constitution. As has been many times held by the Supreme Court of this State and of other states the action of the Governor in vetoing this item of the Appropriations Bill was legislative in character, and although it made the appropriation to the Division of the State Veterinarian ineffective, it left unimpaired the express legislative declaration that no part of the appropriation of $156,000 for expenses of operation of the Department of Agriculture should be used for the payment of the expenses of operation of the Division of the State Veterinarian. It is my opinion that the Appropriations Act limits the purposes for which the sum of $156,000 appropriated for expenses of operation of the Department of Agriculture may be expended to all the expenses of operation except those incurred by the Veterinary Division. The expenses of operation of the Veterinary Division necessarily include the salary of the State Veterinarian.
I am therefore of the opinion that you are not authorized to pay the person who was State Veterinarian at the time of the passage of the Appropriations Act the salary provided by law for that office out of the sum appropriated for expenses of operation of the Department of Agriculture.
AGRICULTURE-Sale of margarine in this State
November 6, 1936 The Cudahy Packing Company :Margarine Department 221 North La Salle Street Chicago, Illinois Gentlemen:
This will acknowledge receipt of your letter of November 4th in which you make the following inquiry:
"We wish that you would advise us-and if possible send us a copy of your law-which prevents The Cudahy Packing Company or any other manufacturer of margarine from shipping margarine to the State of Georgia to be re-sold in that State under a private label without our name appearing on the package. To make this more clear-We have a jobber in the State of Georgia who would like to have us make up a carton for him with his own name and pack oleomargarine for him in these cartons.
"We would also like to know if retail stores in the State of Georgia may have oleomargarine packed in their own cartons with their own name on same."

The Georgia Food and Drug Act is to be found as Title 4~ of the Code of Georgia of 1933. Section 4~-106 provides as follows: .
''The Commissioner of Agriculture, with the advice of the Attorney General, may establish such rules and regulations as shall not be inconsistent with the provisions of this Title, and as in his judgment will best carry out the requirements thereof." The provisions of this Title are a compilation of statutory enactments with reference to food and drugs, since the passage of the original Food and Drug Act of 1906. (Ga. Laws 1906, pp. 83-94) By the provisions of Section 4~-111 the Commissioner of Agriculture and State Chemist are required to fix standards and definitions of food products offered for sale in this State. This section makes the following definition:
"A mixed edible fat is defined to be a mixture which contains not less than 99 per cent. of sweet mixed fat, and may consist of a mixture of refined cottonseed oil or other edible vegetable oils with sweet beef fat or other edible animal fat, and shall be sold under a registered or proprietary brand and properly labeled with a distinctive trademark or name bearing the name of the manufacturer." In pursuance to the Act of 1~06 the Commissioner of Agriculture promulgated certain rules and regulations governing the sale and distribution of foods in this State. I quote paragraph 8 of ruling 3 of the food regulations as follows:
"The label shall also contain the following, to wit: The name of the manufacturer or distributor and the place of manufacture; such necessary statement of declaration if the articles are compounds, blends, or mixtures. The words, 'compound,' 'mixture', or 'blend' and words designating substances or their derivatives and proportions are required to be named, with a clear statement of the principal or essential ingredients." In view of the statute above quoted, and the rules and regulations promulgated by the Commissioner of Agriculture, under authority of the law, I am of the opinion that oleomargarine is such a product if when offered for sale in this State in a carton or package that such carton or package should carry the name of the manufacturer and the place of manufacture. I know of no reason why retail stores in this State may not have oleomargarine packed in their own carton with their own names on the same, provided that the carton also carried the name and address of the manufacturer.
The General Assembly in 1935 (Ga. Laws 1935, p. 81) passed a law providing for an excise tax of ten cents per pound on oleomargarine of certain types sold or offered for sale in this State. I quote Section 1 of this Act which contains pertinent information with reference thereto:
"That there is hereby imposed an excise tax of ten cents per pound on all oleomargarine sold, offered or exposed for sale, or exchanged in the State of Georgia, containing any fat and/or oil ingredient other than any of the following fats and/or oils: Oleo

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oil from cattle, oleo stock from cattle, oleo stearine from cattle, neutral lard from hogs, peanut oil, pecan oils, corn oil, cotton seed oil, soya bean oil or milk fat. Such excise tax shall be in the form of a stamp in such denominations as will best carry out the provisions of the law. Said stamps shall be properly safeguarded as to their manufacture, preservation and distribution and shall be in the charge of the State Department of Agriculture." I am inclosing under separate cover Bulletin No. 125 of the Department of Agriculture which contains the rules and regulations with reference to sale of foods in this State.
ALCOHOLIC BEVERAGEs-Summary of Malt Beverage Act of 1935
June 25, 1936
Hon. J. Henry Howard, Solicitor City Court of Sylvania Sylvania, Georgia Dear Mr. Howard:
I have your letter of June 23rd making certain inquiries with reference to the Malt Beverage Act of 1935. I will answer these questions in the order in which they are stated.
Replying to your first inquiry, I beg to advise that in my opinion the county authorities have no jurisdiction to grant a license to dealers within the limits of a municipal corporation, and no jurisdiction to require such persons to take out a county license.
Under the ruling by the Supreme Court in the case of Harbin v. Holcomb, 181 Ga. 800, Section 15A of the Beer Act clothes the municipal authorities and the county authorities respectively with the discretionary power to grant or refuse licenses. As I interpret the decision of the Supreme Court, this discretion is absolute, and the county or municipal authorities may refuse a license to any particular person, or refuse to license all persons. Where the authorities of the municipality simply fail to act, in my opinion the sale of beer in the municipality would necessarily be illegal.
Section 15A provides that the business legalized by the Act shall not be conducted in any county or incorporated municipality without a permit from the governing authority of such county or municipality, and that such governing authority shall have discretionary power as to the granting or refusal of such permit. In other words, it seems to me that the Act makes it illegal to carry on the business of selling beer in a municipality without a permit from the municipal authority. And, therefore, before the conduct of the business in the municipality would be legal, there must be affirmative action by the municipality granting the permit. If there is none, the sale of beer would be contrary to the Malt Beverage Act of 1935. The fact, however, that the municipal authorities failed to act would not operate to vest jurisdiction of the subject matter in the county authorities. The authority of the county to regulate the sale of beer

26
is expressly limited by the act to operations outside the limits of municipalities.
Answering your second question, I beg to advise that in my opinion a municipal corporation, under its general police powers, would be authorized to regulate the hours of sale for beer and to prohibit the sale of beer on Sunday. It may be that a direct prohibition against the sale of beer on Sunday by a municipality would not be authorized, since such action would relate to a subject matter of which the State has taken jurisdiction under its general statute prohibiting any person from carrying on the business of his ordinary calling on Sunday.
A municipality, however, in the exercise of its general police power, can regulate the sale of beer in the municipality, where the subject matter of the regulation is not covered by a State law.
With reference to the authority of the counties, the situation is somewhat different. County commissioners, and county officers generally, have no general police power. I am of the opinion, therefore, that the county authorities could not prescribe rules and regulations for the sale of beer to be enforced by punitive measures. I do think, however, that the county authorities, in the exercise of the broad discretion conferred upon them by Section 15A, could make reasonable rules and regulations respecting the issuance of permits and could withhold permits from any person who failed to obey such reasonable rules and regulations.
Under the general rule, that power to issue a permit carries with it, by necessary implication, power to revoke the permit, I think the county authorities could revoke a permit for violation of reasonable rules and regulations governing the issuance of permits. I think, however, that the power of the county authorities would be limited to refusing or revoking permits. In other words, I do not think the county commissioners could adopt a reasonable rule and regulation and punish the holder of a permit for violating it, but I do think the county authorities could adopt reasonaple rules and regulations and revoke the permit, granted because of such a violation. Of course, the municipal authorities have the same powers concerning the issuance of permits as do the county authorities, and the additional authority, under the general police power of a municipality, to regulate the sale of beer.
In answer to your third inquiry, I beg to advise that in my opinion Section 15B prohibits the sale of alcoholic beverages within one hundred yards of a school ground or college campus is enforceable at all times. The law does not provide that it should be illegal to sell such beverages within one hundred yards of a school or college, but that it shall be illegal to sell them within one hundred yards of the school ground or college campus. In my opinion, therefore, the fact that the school or college may be in vacation is immaterial.

BANKING-Taxability of shares of preferred stock held by the Reconstruction Finance Corporation
June 29, 1936 Hon. Lee W. Branch Quitman, Georgia Dear Mr. Branch:
I have your letter of the 27th with reference to the taxability of shares of preferred stock held by the Reconstruction Finance Corporation.
I do not know of any court decision holding the Act of Congress to which you refer unconstitutional. In Baltimore National Bank v. State Tax Commissioner, 56 S. Ct. Rep. 417, decided February 3, 1936, the Supreme Court held that shares of stock in a National Bank owned by the Reconstruction Finance Corporation were taxable by the State, construing the Act of Congress relating to State taxation of National Banking Associations as permitting such taxation irrespective of the ownership of the shares.
The Act of Congress to which you refer was passed to meet this decision. So far as I know, it has never been construed by any court.
In the decision in the Baltimore National Bank case the Supreme Court assumed, without deciding, that Reconstruction Finance Corporation is an instrumentality of the Government within the meaning of McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.
While the Supreme Court does not directly hold in this case that property of Reconstruction Finance Corporation is exempt from taxation by the States, it strongly intimates that such is the case.
If the shares of stock to which you refer are shares in a national bank, I think the matter would come within the rule of the court in the Baltimore case as modified by the statute last enacted. If the shares are shares in a State bank, the rule might be different since the power of the State to tax State banking associations is in no wise dependent upon consent of Congress. However, I think the Federal courts can hold that the Act of Congress denying the State's power to tax shares held by the Reconstruction Finance Corporation is valid. To be frank with you, while McCulloch v. Maryland is undoubtedly sound, I do not think the doctrine of that case ever had had any proper application to national banking associations. However, it has been uniformly so applied and I do not think it would be possible to get the court to change now.
BOARD OF CONTROL-Juvenile courts
November 11, 1935 Hon. W. E. Ireland, Supt. Georgia Training School for Boys Milledgeville, Georgia Dear Mr. Ireland:
I have yours of the 8th instant requesting advice as to what legislation, if any, was passed at the last General Assembly affecting the status of juvenile courts in this State contrary to the ruling of the

Supreme Court in the case of Wages v. Morgan, 174 Ga. 158, decided January 14, 1932.
In the Wages case, the Supreme Court held that those provisions of the Act of August 19, 1916, making it mandatory upon the Judge of the Superior Court in a county having a population of less than sixty thousand to designate an existing court of record to act and be known as the juvenile court of such county violates Paragraph 1, Section 9, of Article 6 of the Constitution of this State which provides that:
"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," are unconstitutional.
In its opinion; the court referred to Paragraph 1, Section 1 of Article 6 of the Constitution which provides:
"The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, Superior Courts, Courts of Ordinary, Justices of the Peace, commissioned Notary Publics and such other courts as have been or may be established by law."
In commenting upon this section of the Constitution, the court said:
"The Constitution does not undertake to define the jurisdiction and powers of the courts mentioned in this section or those which may be created thereunder. It leaves this matter to the General Assembly."
Since this decision, and in an apparent effort to cure the unconstitutionality of that portion of the Juvenile Court Act dealt with in the case of Wages v. Morgan, the Legislature, by Section 5 of an Act approved March 22, 1935 (Ga. Laws 1935, pp. 399, 401) provided:
"From and after the date of passage of this Act, in all counties having a population of less than sixty thousand (60,000) the judge of the superior court may designate an existing court to act and be known as the juvenile court of said county. This shall involve no additional expense (except as may be authorized by the Board of County Commissioners or other authority controlling the fiscal affairs of such county) shall create no new court or judge, but shall merely clothe an existing tribunal with additional powers, unless the court thus designated is one of a grade or class required by Paragraph 1, Section 9 of Article 6 of the Constitution of this State to be uniform as to jurisdiction, powers, proceedings, and practice, in which event the designation of the judge thereof to preside over a juvenile court for such county, which he shall thereupon establish and conduct as separate and distinct from any other court to which he may have been elected or appointed."
The question raised by your letter is, therefore, whether this amendment accomplishes the aforesaid purpose.

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You will note that Article 6, Section 9, Paragraph 1 of the Constitution requires uniformity not only in "the jurisdiction, powers, proceedings, and practice of all courts-invested with judiciary powers "(except city courts), but also requires uniformity in "the jurisdiction, powers, proceedings and practice of all-officers invested with judicial powers (except city courts)." I am of the opinion that the uniformity of the jurisdiction, powers, proceedings and practice of officers invested with judicial powers, may be, and is, destroyed as much so by a designation by the Judge of the Superior Court of a judge of an existing court as a judge of a juvenile court as it would be if the court itself were designated as a juvenile court.
Furthermore, I am not so certain but that Section 5 of the Act of 1935 authorizing a judge who has been designated to preside over a juvenile court for a county to "establish and conduct" such a court violates Article 6, Section 1, Paragraph 1 of the Constitution above quoted and is therefore unconstitutional. This Section of the Constitution seems to contemplate that courts are to be "established by law", not by an officer, and that the jurisdiction and powers of such courts must be provided for and defined by the General Assembly. This appears to be an unauthorized delegation of authority by the General Assembly.
INSANE CONVICT&-When a person is acquitted of a crime on ground of insanity and committed to the Hospital for Insane, where crime capital felony, may be discharged only on special Act of General Assembly, otherwise on order or warrant of Governor
December 26, 1935
Dr. John W. Oden, Supt. Milledgeville State Hospital Milledgeville, Georgia
Dear Dr. Oden: I have your letter of December 25th with reference to Mrs. Claudia
Bennett of Wilcox County, who was committed to the Milledgeville State Hospital by an order of court, dated December 1, 1931, pur-. suant to the verdict of a jury returned on a special plea of insanity filed to an indictment for assault and battery.
You state that Mrs. Bennett is apparently normal and that you wish to allow her relatives to remove her from the hospital.
When a person is acquitted of a capital crime on the ground of insanity and committed to the Milledgeville Hospital, the law provides he shall not be discharged from the hospital except by special Act of the Legislature. If the crime is not capital, he may be discharged by warrant or order of the Governor.
I am therefore of the opinion that Mrs. Bennett cannot be discharged from the Milledgeville State Hospital except upon the warrant or order of the Governor.

so
It is not necessary for use to determine what disposition should be made of the case in Wilcox Superior Court. That is a matter to be determined by the court itself.
I am forwarding a copy of this letter to the Governor so that he may be acquainted with the advice given you; also copy to the State Board of Control.

HOSPITAL FOR INSANE-Law governing absentees from Hospital

Dr. John W. Oden, Superintendent

April 14, 1936

Milledgeville State Hospital Milledgeville, Georgia My dear Doctor:

It would seem that the intent and purpose of Section 35-239 of

the Code of 1933 relating to absentees for twelve months from the Hospital is that they must again within twelve months from the time the absence begins become an inmate of the Hospital with the

same intent and purpose as that when committed or else the Hospital will lose authority and jurisdiction to receive them. I am of the opinion that from a careful reading of the Act that the Hospital

does not have the authority to extend furloughs beyond twelve months.

After they have been received as bona fide inmates within twelve months then the authorities could after examination as in the first instance grant furloughs.

Summing the full matter up I am of the opinion that your jurisdiction over a patient is lost unless within twelve months from the time

he leaves the Hospital he returns to the Hospital, is readmitted and again becomes a bona fide inmate.

I realize fully that this works a hardship but we should follow the law as it is written.

TAXATION-"Baby bonds" of cities taxable by State and county
January 5, 1935 Ron. W. J. Taylor, Chairman Board of Equalizers Thomasville, Georgia Dear Mr. Taylor:
I have given consideration to the question you submitted to me as to whether the "baby bonds" issued by the Mayor and Council of the City of Thomasville, acting under the authority of the Act approved August 18th, 1925 (Georgia Laws 1925, p. 1480) are taxable by the State and county.
Paragraph 1, Section 2 of Article 7 of the Constitution of Georgia provides:

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"All taxation shall be uniform upon the same class of subjects and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." Paragraphs 2 and 2 (a) of this Section of the Constitution give the General Assembly authority to exempt all public property, places of religious worship or burial and certain industries and property owned and used by institutions of a certain character from taxation: In this connection, I am of the opinion that the "baby bonds" are not public property and do not fall within any of the other classes of property which the Constitution gives the legislature authority to exempt from taxation. Lacking the authority to exempt any property other than that named in the above cited sections from taxation, any attempt by the legislature to exempt such bonds would be unconstitutional, as Paragraph 4 of this Section provides:
"All laws exempting property from taxation, other than the property herein enumerated, shall be void." The expression in this paragraph, "Property herein enumerated," refers to the property and classes of property named in Paragraphs 2 and 2 (a). See Civil Code Sections 6553, 6554, 6554 (I) and 6556 (Sees. 2-5001, 2-5002, 2-5005, Code of 1933). In considering the taxability of the "baby bonds" above referred to, we recognize the principle laid down in McCullough v. Maryland, 4 Wheat. 316, which has been adhered to by both the State and Federal courts,-that one sovereign power cannot tax the agencies or instrumentalities of another sovereign power. This doctrine or principle has been held to apply to the agencies and instrumentalities of a municipality. See Penick v. Foster, 129 Ga. 217; Wright v. Fulton County, 169 Ga. 354. Therefore, I am of the opinion that the matter under consideration turns upon the question as to whether the "baby bonds" of the City of Thomasville are lawful instrumentalities of the City of Thomasville. If they are such, then, under the decision in the case of Penick v. Foster, supra, they are exempt from taxation. If not, they are taxable. In headnote 9 of the decision in the case of Penick v. Foster, it was held:
"Bonds issued by a municipal corporation of this State in the hands of a resident of this State, are not taxable by this State or any county thereof."
The court in this case was considering the taxability of municipal bonds of the City of Atlanta, bonds which were issued by the City of Atlanta, and which were a legal obligation of the city. It is therefore my opinion that the ruling in this case applies only to such bonds as are clearly an obligation of the city and which are issued in compliance with all laws relative to such matters, and bonds which constitute a lien upon all of the property located within the city issuing the same, and for the retirement of which the city could levy a tax upon all of the property within its bounds.
The baby bonds issued by the Mayor and Council of the City of Thomasville are not bonds of this nature. Such bonds are not an

obligation <it the City of Thomasville. They were issued and designated as "street improvement bonds" and constitute a lien only upon the property of the abutting property owners where the street improvements were made. They are not a lien upon all of the property located within the City of Thomasville, and the City of Thomasville acting through its Mayor and Council has no authority to levy or assess a tax against the property of other citizens residing in the city and owning property which does not abut upon the streets upon which the improvements were made, for the payment of such bonds.
By Section 3 of the Act of 1925, only the lots, pieces or parcels of land fronting and abutting upon both sides of said improvements are charged with the cost thereof, according to the just pro rata of the entire cost of such improvement for the said frontage on the basis of lineal foot frontage, and the assessment for improvements made on the intersection of streets, lanes, alleys and avenues or property owned by the city is to be paid from the city treasury.
By Section 4 of this Act, it is provided that if the proper petition has been presented or when the Mayor and Council shall have determined to pave or improve any street, avenue, lane, alley or other public place, and it shall have passed the resolution provided for in Section 2 of the Act. "The said Mayor and Council shall then have the power to enact all ordinances and to establish all such rules and regulations as may be necessary to require the owners of all property subject to assessment to pay the cost of such improvement," etc. This language and the provision in Section 9 of the Act relative to the issuance of bonds: "Which bond or bonds shall in no event become a liability of the Mayor and Council of the City of Thomasville, issuing the same," manifestly and clearly restricts and defines the nature of these bonds as obligations only of the abutting property owners and not of the City of Thomasville.
This being true, it is my opinion that such bonds are not bonds of the City of Thomasville and are therefore not instrumentalities of a municipality. It follows that such bonds are taxable by the State and county.
TAXATION-Fees for nulla bona entries on tax fi. fas., how paid
June 10, 1935 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of the 8th instant enclosing a letter from Mr. Jesse M. Gay, former Tax Collector of Jenkins County, requesting an opinion as to whether, when a tax fi. fa. has been issued and the collecting officer makes a search and finds nothing upon which to levy and makes a nulla bona return, if the collecting officer is entitled to cost for the nulla bona.
In reply I beg to advise that the collecting officer is entitled to such cost, but the same will be payable only when the fi. fa. is col-

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lected. The county has no authority to levy a tax for the purpose of paying the collecting officer such a charge, the law contemplating that such fees are to be paid out of the funds arising from the collection of the taxes, and consequently, it would' be improper for the county to pay this charge from any other funds than those derived from a collection of the taxes and costs represented by the fi. fa.
I am returning Mr. Gay's letter.
TAXATION-Dormant tax fi. fas., how revived
June 25, 1935
Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your communication referring to me a letter from Mr. A. E. Davidson, Tax Collector of Clarke County, that my opinion is requested as to whether or not the State or county may sue to judgment within three years after dormancy, a tax fi. fa. which has become dormant by reason of the expiration of seven years from its date.
Section 1147 of the Code of 1910 (Code of 1933, Section 92-7701) provides as follows:
"92-7701. Tax Execution dormant, when.-All State, county, city or other tax executions, before or after legal transfer and record, shall be enforced within seven years from the date of their issue; or within seven years from the time of the last entry upon the tax execution by the officer authorized to execute and return the same, if said entry is properly entered by said officer upon the execution docket and books in which said entries are required to be made in cases of entries on executions issued on judgments." Section 110-1002 of the Code of 1933 provides:
"A dormant judgment may be revived by scire facias or sued on within three years from the time it becomes dormant." . Section 110-1003 of the Code of 1933 provides:
"When any judgment obtained in any court of this State shall become dormant, the same may be renewed by an action or by scire facias, at the option of the plaintiff, within three years from the date it became dormant." You desire to know whether the code sections last cited apply to tax executions. In the case of Georgia Railroad Company v. Wright, 124 Ga. 596 (2), 621--622, the Supreme Court held that the right of the State to issue an execution for taxes became barred at the expiration of seven years from the date that an execution might be lawfully issued, if no execution was issued within that time. In the same case the court held that the Act of 1877 which is codified as Section 1147 of the Code of 1910 (Code of 1933, Section 92-7701), was in effect a dormant tax judgment Act, and said:

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"For reasons satisfactory to the General Assembly, the right of the individual to have a dormant judgment revived within three years after dormancy has not been made a part of which we might properly call the dormant tax judgment act." Under this statement by the Supreme Court, I am of the opinion that the right to revive a tax execution within three years after dormancy, by scire facias or suit, does not exist. I express no opinion as to the liability of the sheriff under the facts stated by Mr. Davidson.
TAXATION-Certain code sections not repealed by General Tax Act of 1935
July 12, 1935 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
In your letter of July 3, 1935, you call attention to the fact that Sections 92-1601 and 92-1602 of the Code of 1933 are not included in the "General Tax Act" of the General Assembly approved March ~8, 1935, and request an opinion as to the effect of the omission of these sections from the "General Tax Act."
The General Assembly, by an Act approved February 14, 1935, adopted the Code of 1933 as the statutory law of this State. The adoption of the Code of 1933 was as full and complete as the adoption of the Code of 1895, by an Act approved December 16, 1895. The Supreme Court said, with relation to the Code of 1895,
"The intention of the Act of December 16, 1895, adopting the present Code, and making the same of force, as the Code of Georgia, is to enact into one statute all the provisions embraced in that Code." Central of Georgia Ry. Co. v. State of Georgia, 104 Ga. 831. By virtue of the adoption of the Code of 1933, the sections referred to were made the statutory law of this State and remain such until repealed by the General Assembly. There is no provision in the constitution that required a "General Tax Act." By custom this name is given to those measures that provide for the levy and collection of various taxes in addition to the ad valorem taxes on real and personal property, originating in the House of Representatives and finally enacted into law by the approval of the Governor. The General Assembly had dealt largely with this class of taxation, but has never undertaken to deal with such as an authority, as evidenced by the various tax measures that appear in the published laws from year to year. There is nothing in the "General Tax Act" of 1935 that either expressly or by implication repeals the code sections referred to in your letter. They are not in conflict with any of the provisions of the Act of 1935, and in my opinion are as of full force and effect as any other sections of the Code of 1933.

PROFESSIONAL TAXE&-Lawyers, doctors, and others required by law to pay professional taxes not required to register with Ordinaries of their respective counties
January 14, 1936 Hon. W. B. Harrison Comptroller General Dear l\Ir. Harrison:
Answering your inquiry of recent date I am of the opinion that lawyers, doctors, dentists, and others who are required by law to pay professional taxes do not, under the General Tax Act for 1936, have to register with respective Ordinaries of the counties.
PROFESSIONAL TAXES-Who subject
1\:lay 23, 1936
Hon. G. B. Carreker Comptroller General Dear Mr. Carreker:
Answering your inquiry of recent date beg to advise as follows: Paragraph three of the General Tax Act of 1935 places a tax "upon each and every practitioner of law, medicine, osteopathy, chiropractic, chiropodist, optometrist, dentistry, masseur, public accountant, or embalmer, and upon every civil, mechanical, hydraulic, or electrical engineer, or architect, charging for their services as such, $15.00, and the validity of their license is made contingent upon the payment of the tax herein provided." This Act is far reaching and all embracing, and exempts no one "charging for their services as such" from the payment of the tax, whether the employment be personal on a fee basis, or by another on a salary basis. A lawyer with one client on a salary basis would be subject as would an accountant employed by a firm or corporation on a salary basis. The Attorney General, all the assistant attorneys general, as well as all the architects, accountants and civil engineers employed and paid by the State are subject to the tax. A great many lawyers, quite a few doctors, many accountants, embalmers and others engaged in the practice of their respective professions are employed by individuals, persons, firms, or corporations on salaries on account of their skill and would not be employed but for this fact. They are engaged in the practice of their professions and are charging for their services just as much as if they were engaged in private practice on their own responsibility and charging fees.

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TAXATION-Commissions of tax collectors on professional taxes
June 4, 1936
Mr. B. E. Thrasher, Chief Clerk Comptroller General's Office
Dear Mr. Thrasher:
I have your letter of the first inclosing a communication from Hon. Usher T. Winslett with reference to the commissions of tax collectors.
Under the General Tax Act of 1935 I think the tax collector is entitled to a commission of ten per cent. on professional taxes beginning January 1, 1936. I understand you are in accord with Mr. Winslett on this question.
With reference to professional taxes which accrued before January 1, 1936, and with reference to the poll taxes, it is my opinion that Section 92-5303 of the Code of 1933 does not have application. I do not think these taxes, which are required by law to be carried on the general tax digest of the county, can be held to be special taxes within the meaning of this section. It is true that Section 10 of the General Tax Act of 1927 as amended, which is in the same language of Section 92-5303 of the Code, provides for a commission of ten per cent to the tax collectors for collecting the special taxes which they are required under the General Tax Act to collect, and that the General Tax Act provides that in addition to the ad valorem tax on real estate and personal property the specific and occupation taxes provided for by the General Tax Act shall be collected each year beginning in 1928. If these were the only provisions of law on the subject there might be some room for the construction applied by Mr. Winslett. However, the general law in force before January 1, 1936, requires the poll taxes and professional taxes to be returned to the tax receiver and entered on the general digest. I do not think the language of the General Tax Act providing for the continued collection of these taxes can be construed to repeal the provisions requiring their return to the tax receiver, or to modify Section 925301 fixing the commissions to be allowed the tax receivers and tax collectors for the collection of State and county taxes.
I think the tax collectors are entitled to the same commission for collecting the professional taxes accruing after January 1, 1936, as they receive for collecting other special taxes. I do not think they are entitled to this commission, however, on poll taxes or on professional taxes which accrued before January 1, 1936.
It will be noted that Section 92-5101 requires the amount of poll taxes and professional taxes to be entered upon the regular tax receipt stub. It will be further noted that Section 92-5201 requires the tax collectors to prepare a special digest of the special taxes, but that Section 92-6215 requires the poll taxes and the professional taxes to be returned to the receiver. Construing all of these provisions together, it was the manifest purpose of the General Assembly to allow

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the tax collector commission of ten per cent only upon the special taxes which are so classified in the statutes relating to returns and digests, and then apply the regular scale of commissions to all taxes shown on the general digest.
TAXATION-Tax receiver without authority to raise valuation but should refer return to county board of tax assessors
April 24, 1935 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your communication referring a letter from the Tax Receiver of Chatham County with reference to certain property belonging to 1\fr. Fred Cockrell.
The Tax Receiver states that Mr. Cockrell returned this property for taxation for the present year at what he considered a gross undervaluation and that he raised the valuation at which the property was returned, notified the taxpayer accordingly.
I note your letter to Mr. Baker on April 5th. In my opinion you correctly advised Mr. Baker in that letter. I do not think a tax receiver has authority to raise the valuation at which a taxpayer returns his property. If the taxpayer fails to make a return, or makes a return and fails to value the property, or omits property from the return, the tax receiver is authorized to value it. He is not, however, authorized to increase the valuation at which property is returned for taxation. This is a function of the county board of tax assessors. The tax receiver should refer this return along with all other returns to the county board of tax assessors. He can, of course, furnish the county board any information he may have on the subject. However, the matter of determining whether or not the property was returned at a proper valuation is for consideration by the county board of tax assessors and not by the tax receiver.
TAXATION-Professional taxes, who subject and who exempt
April 25, 1935 Hon. Henry C. Davidson Trust Co. of Georgia Bldg. Atlanta, Georgia Dear Mr. Davidson:
I have yours of the 22nd and 24th instant asking several questions in connection with your duties relative to the collection of professional taxes in the State of Georgia.
I shall attempt to answer these questions in the order in which they occur in your letter.
1. "Is a world war veteran who has a free license to 'do business', without the payment of State, county or city license exempt from the

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professional tax where he is engaged in one of the occupations enumerated in Section 998(5), (1926)?"
Answer: No. The certificate of the Ordinary issued under Code Section 84-2011 (1888) only purports to exempt a disabled or indigent veteran from a license to "peddle or conduct business." This exemption does not extend to the practicing of a profession where the right to practice is contingent upon the payment of a professional tax. In McKinney v. Patton, 176 Ga. 719, it was held that the only exemption to veterans afforded by Code Section 1888 is an exemption from the occupation tax. (See also Snipes v. Flournoy, 178 Ga. 815.)
2. "Is an employee of a firm of architects, who does work at the direction of his employers, all of said work being drafting, planning, specifications, etc., exempt from professional tax merely because he is not doing this work in his own name?"
Answer: No. Under the definition of the "practice of architecture," as defined in Section 84-804 of the Code of 1988, I am of the opinion that this employee would be subject to the payment of the fee of $15.00 imposed upon architects under Section 92-1909.
8. "Is a draftsman employed by the Southern Bell Telephone Company who is registered as an architect at the State Capitol liable to professional tax?"
Answer: Yes. There have been several cases holding that the fact that a professional man practices for only one client does not relieve him from the payment of a professional fee, so long as such professional man is charging for his services as a member of his particular profession. ' 4. "A chiropodist states that he is not liable for professional tax because the State did not issue license until June 22, 1988. Code Section 998(5) was enacted in 1921. Are not all chiropodists liable for this tax since the enactment of that statute?"
Answer: Yes. This is a professional tax, not an occupation tax, and a disabled veteran holding a certificate of the ordinary is not exempt from the same. The fact that the law did not require a license until June 22, 1988, does not matter. If the person in question was practicing chiropody as of January 1, 1988, he is due the tax for 1988.
5. "The Professional Tax Act provides that 'opticians' shall pay the professional tax. The question is, does the optician have an exemption from this tax because he does not have a license from the State?"
Answer: No. If a person is practicing as an optician, even though the State requires no license for him to do so, and charging for his services as such, even though such charges may be paid him in the nature of a salary, rather than by any particular patient, he is subject to the tax of $15.00 as imposed under Section 92-1909 of the Code of 1988. I am therefore of the opinion that the eleven men working for Ballard, referred to in your letter, who grind lenses in accordance with prescriptions, are each subject to this tax.

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TAXATION-Professional taxes on doctors andfaccountants, who subject
June 12, 1935
Hon. H. C. Davidson Trust Company of Georgia Bldg. Atlanta, Georgia
Dear Mr. Davidson: I have yours of the lOth instant asking the following questions,
which I will answer in order: 1. "Is a physician licensed to practice in the State of Georgia,
but working for the Battle Hills Sanatorium, which I understand is an eleemosynary institution, receiving a salary, employed because he is a physician, and licensed to practice, liable for the professional tax?"
Answer: Yes. Paragraph 3 of the General Tax Act, with which you are familiar, imposes a professional tax of $15.00 "Upon each and every practitioner of . . . Medicine" charging for his services as such. The fact that the physician referred to in your letter is employed by the Battle Hill Sanatorium and receives a salary would not exempt him from this professional tax where he receives a salary or compensation of any nature for his services as a physician.
2. "The accounting firm of Bardin & Wilson advises that one partner, Bardin, has paid his professional tax. Is each member of a firm of accountants liable for the professional tax?"
Answer: Yes. Paragraph 3 levies the professional tax, not upon each partnership, but upon each person practicing the professions named therein and charging for their services as such. In other words, the tax is imposed for the exercise of a professional privilege which can only be enjoyed by a person.
2(a). "Are the employees of an accounting firm, whether certified public accountants or not, but doing accounting work for the benefit of the partnership or incorporated body, representing themselves to the public as public accountants, the employees receiving only a salary for their work, and further not being allowed to practice in their own name, liable for the professional tax?"
Answer: In answer to this question, I refer you to Section 849902 of the Code of 1933, which provides:
"If any person shall hold himself out as having received the certificate provided for in Section 84-201, on the subject of certified public accounts, or shall assume to practice thereunder as a certified public accountant, or use the initials 'C. P. A.', without having received such certificate, or if the same shall have been revoked, he shall be guilty of a misdemeanor, and shall be sentenced to pay a fine not exceeding $500.00, nor less than $200.00." Construing this Section in connection with Chapter 84-2, I am of the opinion that an employee of an accounting firm, who does not hold himself out to the public as a certified public accountant, and is not practicing in his own name, is not subject to the professional tax. No person is subject to the tax except those who are qualified as.ac-

countants under the provisions of Chapter 84-!l. Those who assume to practice as a certified public accountant, who are not qualified under said Chapter are not by such illegal practice subjected to the payment of a license fee, which is prescribed only in the case of legal practitioner. Such a person, illegal practicing, is amenable to the provisions of Section 84-990!l cited above.
I regret to advise that I have not been able to make a very thorough search of the authorities and furnish you with cases holding that the fact that a professional man practices for only one client does not relieve him from payment of professional fees, so long as such professional man is charging for his services as a member of his particular profession. The writer is quite sure that he has run across such cases, but due to the press of urgent State business, he is unable to furnish you with these citations at this time.
TAXATION-Personal property of soldiers stationed at fort not subject to ad valorem taxation by State
June 14, 1935 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of June 13th requesting my opmwn, for the information of the Tax Receiver of Catoosa County, on the question of whether or not the personal property of the soldiers and officers of the United States Army, stationed at Fort Oglethorpe, is subject to taxation by the State of Georgia.
In reply I beg to advise that if this property is actually located on the military reservation, and the owner thereof resides on the military reservation, it is not subject to taxation by the State. This is true for the reason that under the Constitution of the United States Congress is vested with exclusive jurisdiction over property acquired within a State, by the consent of the legislature of the State, for forts, arsenals, dockyards, and other needful public buildings by the United States. The jurisdiction of Congress over the territory within the military reservation at Fort Oglethorpe, which I assume was acquired under the Constitution, is as exclusive as is its jurisdiction over the District of Columbia, and arises by virtue of the same constitutional provision.
TAXATION-Comptroller General may by regulation provide for payment of professional taxes either in county of residence of taxpayer or in county in which he has his office
October 8, 1935 Hon. W. B. Harrison Comptroller General Dear Mr. Harrison:
I have your letter of the 4th instant requesting my opinion as to whether professional taxes should be paid in the county of the residence of the taxpayer or in the county in which he has his office.

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This inquiry grows out of the fact that the General Tax Act of 1935, effective January 1, 1936, provides that professional taxes shall be paid as other special taxes are paid, whereas the present law provides that they shall be returned to the tax receiver as are ad valorem taxes. The law makes no express provision as to whether these taxes should be paid to the tax collector of the county in which the taxpayer resides or to the tax collector of the county in which he'has his office and carries on his profession. The practice of a profession is not localized as businesses generally are localized. A licensed attorney at law may practice in any of the courts of this State and in any county of the State without further license. So also may licensed physicians or other licensed practitioner of a profession.
I think the question is one which should be determined by a regulation of your department. As a matter of expediency, it occurs to me that the interests of the State would best be served by requiring each professional licensee to pay the tax in the county of his residence. It can make no practical difference where the tax is paid since the tax is a State tax and not a county tax.
TAXATION-No refund authorized where one pays occupation tax and then goes out of business
October 16, 1986 Mr. B. E. Thrasher, Chief Clerk Comptroller General's Office Dear Mr. Thrasher:
I have your letter of the 13th inclosing a communication from Hon. U. T. Winslett, Tax Collector of Bibb County, with reference to the special tax paid by Mr. Henry Kaplan on May 27, 1936.
Mr. Winslett states that immediately after paying the tax Mr. Kaplan decided not to continue the operation of his pawn shop and has consulted Mr. winslett for information as to whether he is entitled to a refund of half of his license fee.
I know of no provision of law which would authorize such a refund. The present tax Act allows the payment of half of the yearly license fee for persons who commence business as of July 1st. This is for the reason that the privilege granted upon payment of the tax is necessarily limited to half of the year. This is not true with respect to a person who commences business before July 1st, or at the beginning of the year, since the privilege to conduct the business taxed is granted for the entire year, and the fact that the taxpayer may see fit to discontinue the business and not avail himself of the privilege granted would not operate to withdraw the privilege or entitle him to any refund of his taxes.

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MILEAGE TAX-How computed
March 28, 1936 Hon. G. B. Carreker Comptroller General Dear Mr. Carreker:
I am writing you in reply to your letter of recent date with reference to the amount of mileage tax to be paid by the Moffett Transit Lines, which operates a bus line from Dublin to 1\facon, Georgia.
You state that this company desires to pay the tax on the fixed route basis and contend that the distance is less than fifty miles; that you are informed that the actual distance between Macon and Dublin, as shown by the mileage on the State Highway System, is 49.343 miles, but that this does not include mileage within the city limits of Macon or within the city limits of Dublin.
As I understand your letter, this company operates over a fixed route more than fifty miles in actual length. It is contended, however, that the amount of the mileage tax is to be determined by the length of the route actually traveled over the State Highway, and not including the mileage traveled within the City of Macon and the mileage traveled within the City of Dublin.
I am of the opinion that under the Mileage Tax Act, the tax is to be calculated on the basis of the actual distance of the route, and that the mileage included in the route, in the City of Macon and in the City of Dublin is to be included in determining the length of the route for purposes of mileage tax.
Section 92-2901 of the Code of 1933 defines a motor carrier as any person, firm or corporation engaged in transporting for hire by motor vehicle, property or persons or both, on the public highways of this State.
Common carriers of passengers are required to pay a tax according to the length of the route, the weight of the vehicle, and its passenger carrying capacity. They are required to file a schedule showing, among other things, "the fixed route over which such common carrier proposes to operate," and "the mileage of the same in this State." In case, the amount of the tax is graduated according to the weight and passenger carrying capacity of the vehicle and the length of the "route over which the bus or vehicle is to operate." Code of 1933, Section 92-2903.
With respect to carriers of passengers in interstate commerce, the operator is required to make application, giving the same information required of intrastate carriers and stating "the trip or trips he proposes to make in this State," and to pay a tax according to a graduated scale "for each mile involved in such trip or trips." Code of 1933, Section 92-2904.
In lieu of paying on a fixed route basis, any motor carrier may elect to pay on a mileage basis. In such case the tax is levied for "each mile of travel in this State."
The control of the State over the streets and highways of the State is paramount and supreme. This control may be exercised to

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the exclusion of any municipal regulation. Savannah v. Ellington, 177 Ga. 149.
The word "highways" generally includes city streets, unless a contrary meaning is expressly or impliedly declared. City of Albany v. Ader, 176 Ga. 391. See also City of Waycross v. Bell, 169 Ga. 57; Macon v. Ellington, 177 Ga. 541.
There is nothing in the mileage tax Act from which there can be inferred a legislative intent to exclude from the taxed route mileage actually traveled which may be within the limits of a municipality. I am therefore of the opinion that the tax is to be calculated according to the actual length of the route, without any reference to the fact that a portion of the route may be within the limits of a municipality. This construction is required, in my opinion, by the plain language of the statute.
GASOLINE TAX-State agency using Federal funds must pay State gasoline tax
August 13, 1935 Dr. H. P. Stuckey, Director Georgia Experiment Station Experiment, Georgia Dear Dr. Stuckey:
I have given careful consideration to your letter of May 16th, and the'opinion of Comptroller General McCarl of the United States with reference to the use of Federal funds for paying a State sales tax on gasoline.
Mr. McCarl's opinion is simply to the effect that his Department will not permit the use of Federal funds for this purpose. It does not undertake to decide the question whether a State agency using Federal funds in its activities is subject to the gasoline tax.
The Georgia Experiment Station is not an instrumentality of the United States. It is a governmental agency of the State of Georgia. As such it is subject to the laws of this State, including the tax laws. The fact that the Georgia Experiment Station, in some of its activities, may employ Federal funds does not alter the status of the Experiment Station. Whether or not the United States will permit the use of Federal funds for the payment of a State gasoline tax is one thing; whether or not the agency of the State employing Federal funds in carrying on its activities may be required to pay the gasoline tax, is another thing.
I do not think the Experiment Station is exempt from the gasoline tax. I think it must pay the tax on all gasoline it purchases. If the Federal Government will not permit you to use Federal funds for this purpose, I think it will be necessary for you to pay that portion of the purchase price of the gasoline with State funds. Of course, the ruling by the Comptroller General of the United States as to the purposes for which Federal funds may be used is controlling. It would be useless for me to express my view as to whether the con-

elusion reached by the Comptroller General is right or wrong. I simply say that whether or not the Federal authorities will permit you to use Federal funds to pay this tax, you are not exempt from the tax and it must be paid even though the use of Federal funds for that purpose is necessary.
COUNTY BOND ELECTION-Who entitled to vote
January 29, 1985 Hon. Dan S. Deeland Reynolds, Georgia Dear Mr. Deeland:
I am writing you in response to your recent verbal request for information as to persons who would be entitled to vote in the bond election to be held in Taylor County on February 17 for the purpose of voting on a proposed issue of county bonds to build a courthouse.
The question in which you are primarily interested relates to the right or duty of the County Board of Registrars to purge the list of registered voters made up, certified, and filed in the office of the Clerk of the Superior Court for the last general election.
The constitutional amendment of 1918, now contained in Section 6563 of Michie's Code of 1926, (Section 2-5501, Code of 1933), expressly avoided all laws providing for special registration of the voters of counties and other subdivisions of the State to pass upon proposed issues of bonds. Section 61 of Michie's Code (Section 34-407, Code of 1933) contains the Act of 1911 providing for registrations for special elections. This Section provides in part as follows:
"It shall, furthermore, be the duty of the registrar, upon the call of a special election, to purge the list of registered voters prepared for the last general election of any names subsequently disqualified by failure to pay taxes becoming due subsequent to the last general election, and it shall be the duty of the registrar to furnish to the managers of said special election two lists, one composed of the list of voters entitled to vote by reason of their registration for the last general election, and the other made up of those entitled to vote by their subsequent registration as herein before provided for." In the recent case of Terrell v. Forest Park Consolidated Schools, 175 Ga. 88, the Supreme Court held:
"There is no authority of law whereby a person regularly qualified to register, but whose name does not appear. on the list of voters made up, certified, and filed with the Clerk for the last general election, may be registered so as to entitle him to vote in a special local school district bond election held more than six months after the voters books close for the last general election." In the case of Buchanan v. Woodland Consolidated School District, 168 Ga. 626, it was held, in substance, that the words "qualified voters" as employed by the constitution in stipulating the

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proportion of those voting at the election who must vote in favor of bonds are not synonymous with the words "registered voters" as used by the constitution in providing the proportion of the registered voters of the political unit who must vote in favor of bonds in order to carry the issue.
The effect of the decision of the Supreme Court in the case last referred to, is that although a voter may not be qualified to vote at the election he must still be counted a registered voter in determining whether the qualified voters voting for bonds constitute a majority of the registered voters of the district or county, if his name appears upon the list of registered voters.
In view of the decision of the Supreme Court in the case of Terrell v. Forest Park Consolidated School District, it is my opinion that only those voters whose names appear on the list of registered voters, made up, certified, and filed for the last general election will be qualified to vote in the bond election which has been called.
The provision of the constitutional amendment of 1918 which avoids any law providing for special registration for bond election does not, however, in my opinion avoid the provision of the Act of 1911, now contained in Section 61 of Michie's Code (Section 34-407, Code of 1933), providing for the purging of the list of registered voters filed for the last general election by striking therefrom those who have since become disqualified. It is, therefore, my opinion that it is the right and duty of the County Board of Registrars to purge this list for the special bond election, and that the list as thus purged will constitute the list of registered voters prima facie entitled to vote in said election. If any of such registered voters are, as a matter of fact, not qualified to vote in the bond issue, the fact that their names appear on the list is not conclusive of their right to vote; but under the ruling in Buchanan v. Woodland Consolidated School District such disqualified registered voters are to be accounted registered voters in determining whether the issue of bonds is passed.
TAXATION FO~ COUNTY PURPOSE8-County authorities may levy a tax or make an appropriation for the erection of a county hospital
August 26, 1935 Ron. Wallace E. Harrell City Attorney Quitman, Georgia Dear Mr. Harrell:
I have yours of the 24th instant requesting an opinion as to whether the county authorities of Brooks County may make an appropriation or levy a tax under Section 513 of Michie's Code of 1926 (now Section 92-3701 of the Code of Georgia of 1933) to erect a county hospital.
I think your question is fully answered by the Supreme Court of our State in the recent case of Griner v. Board of Commissioners of

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Bulloch County, 180 S. E. ll8, Advance Sheet for July 4, 1935, wherein it was said:
"The building and equipment of a hospital in Bulloch County with funds derived from the sale of refunding certificates of the state highway department, issued to the county under authority of the Act of the General Assembly approved March 1, 1933 (Ga. Laws 1933, p. 161), to take care of sick convicts and the indigent poor of the county, with limited facilities for pay patients, is a lawful purpose and falls within the purview of section 13 of the Act referred to, and does not offend the provisions of article 7, Sec. 6, Par. 2 of the Constitution of the state of Georgia, limiting the taxing power of counties. For this reason the court did not err in refusing an injunction against the board of commissioners." See also Townsend v. Smith, 144 Ga. 792.
ORDINARIES-Fees of ordinaries in counties of less than 40,000 population
March 26, 1935 Hon. W. M. Clark, Ordinary Forsyth, Georgia My dear Judge Clark:
I have your letter of March 21st with reference to the fees of Ordinaries in counties of less than 40,000 population as fixed by the Act of 1920.
This Act was left out of the Code of 1933 on the idea that it was a local law and not a general law, since it applies only to counties of less than 40,000 population, and the Act directing the revision of the Code empowered the Commission to place in the Code only general laws.
The omission of this Act from the Code does not repeal it nor affect its validity. The omission of a legally enacted law from a codification, adopted by the Legislature, does not repeal or supersede it except where it is in conflict with some provision contained in the Code. There seems to be no such conflict in this case and I have no doubt but that the Act of 1920 was not affected by the adoption of the Code.
ORDINARY-Expenses of lunacy commission, how paid
May 21, 1935 Hon. A. M. Zellner :Forsyth, Georgia Dear Mr. Zellner:
I have your letter of May 20th requesting my construction of Section 49-613 of the Code of Georgia of 1933.
Section 3102 of the Code of 1910 provided that the Ordinary should draw his warrant upon the treasurer of his county for such sum as should be actually necessary or requisite to defray the expenses of

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trying every commissiOn of lunacy, and of carrying or conveying such insane person from such comity to the sanitarium. It contained a proviso that no money should be drawn from the county treasury where the estate of such insane person is sufficient to defray the expense.
This section has never been directly construed by the Supreme Court in a case brought for that purpose, but in the case of Hinton v. Brewer, 129 Ga. 232, the Supreme Court, while not passing upon the question, said by way of obiter that:
"It would seem, from the language of this section, that the cost of trying commissions of lunacy should be paid out of the Treasury of the county, except where the person as to whom such proceeding is had is found to be insane and his estate is sufficient to defray such expenses." I think this was the proper construction of the statute because the language of the proviso was that no money should be drawn from the treasury where the estate of such insane person was sufficient to defray the expense. Of course, if the subject of the investigation was found to be sane, there would be no insane person against whose estate the cost could be charged, and it would be payable out of the county treasury. The Act of 1918 provided for a commission of lunacy instead of the old method of a trial by a jury. If you will examine the Act of 1918, page 163, Section 2, you will notice that it makes no change in the law with reference to payment of the cost of lunacy proceeding out of the county treasury, except to limit the fees which may be paid to the members of the commission. Section 49-613 is somewhat loosely drawn. It contains this language:
"The reputable person not a physician shall not receive more than $5.00 in each case when such insane person shall be lawfully committed to such hospital."
This language would seem to provide for compensating the reputable person not a physician only in cases where the insane person was lawfully committed to the hospital. I think the ambiguity in this section of the Code of 1933 grew out of the transposition of a portion of Section 2 of the Act of 1918. As the language of this section is carried in the printed laws of 1918 it provides for payment from the county treasury of the expense of "carrying on or conveying such insane person from such county to the sanitarium when such insane person shall be lawfully committed to the sanitarium." The language "when such person shall be lawfully committed, etc." qualified the language "conveying such insane person from such county to the sanitarium," and in the language limiting the fee of the member of the commission who was not a physician. As carried in the code section, however, this language "when such insane person shall be lawfully committed" etc., does qualify the provision for the payment of a fee to the reputable person, not a physician.
. I am of the opinion however that controlling effect should be ~1ven to the Act of 1918 and that the use of this particular language m the code section should not be taken to modify the Act in this

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respect. I am therefore of the opmwn that the members of the commission should be paid from the county treasury in cases where the result of the proceeding is to find the object of the investigation to be sane.
TAXATION-Tax collector unauthorized to accept county warrants in payment of taxes but may accept jury scrip.
December 2, 1935 Mr. R. F. DeLamar, Jr. Hawkinsville, Georgia Dear Mr. DeLamar:
This will acknowledge your letter of November 30, 1935, in which you inquire as to your authority to accept county warrants and jury scrip in payment of taxes.
You have no authority and it would be illegal for you to accept county warrants in settlement of taxes. This question is fully decided in the case of McDuffie v. Wilcox County, 165 Ga. 164.
Code Section 92-3804 reads as follows: "The tax collectors shall receive jury scrip when properly
authenticated as far as they will go toward paying the county tax of the person holding the same, and all taxes due by the taxpayers of this State to their respective counties." You will therefore observe from what I have said that you are correct in refusing to accept county warrant in settlement of taxes, but that it is your duty to accept jury scrip when properly authenticated in payment of county taxes only. It is a pleasure to advise you in this particular as there would be much less confusion over the State if all tax collectors and commissioners would find out what their duty is and then follow the law in the conduct of their office.
EDUCATION-Who qualified to vote for trustees in a consolidated school district
February 13, 1935 Hon. W. J. Andrews Superintendent of Schools Toccoa, Georgia Dear Mr. Andrews:
In reply to your request for an opinion as to the qualifications of voters in an election to be held on February 15, 1935, in the Riverside Consolidated School District, I beg to advise that upon further study of this question, I am still of the opinion that only those persons whose names appear either on the list of qualified voters, as made up by the Board of Registrars for the last general election, and who have not subsequently become disqualified by reason of a change of residence, or a failure to pay poll taxes in the time and manner pre.scribed by law, or whose names appear on the additional registration

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list (if one was made) under the provision of Section 34-407 of the Code of Georgia of 1933, (Michie's Code, Section 61). (See Chapman v. Sumner Consolidated School District, 152 Ga. 450 (2)).
It is my opinion that a trustee election in a consolidated school district is an "election by the people," as contemplated by Paragraph 3 of Section 1 of Article II of the Constitution, which provides:
"To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all poll taxes that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior to the election at which he offers to vote, except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes." It is my further opinion that the qualifications of a candidate for trustee in such school district are the same as those of an elector for such position, with the additional requirement found in Section 32-1104 of the Code of Georgia of 1933 that:
"The trustees shall be intelligent citizens of good moral character who are known to be earnest supporters of public education." It is my opinion that a person who was a qualified voter, having resided in the State at least one year, and in the county where the election is to be held at least six months, and who at the time of his election is a resident of the school district from. which he is elected, is qualified to hold the position as trustee of such district. It is my further opinion, that this election to fill a vacancy on the Board of Trustees of this District is, in its nature, a special election as contemplated by Section 34-407 of the Code of Georgia of 1933, and that an additional registration list for said election should have been prepared and filed in accordance with said section for this election, and the list as originally prepared and filed for the last general election should have been purged of the names of those persons who have become disqualified as voters since the last general election.
EDUCATION-Not necessary county boards of education carry liability insurance on school buses; all buses purchased with tax money belong to county board of education
March 20, 1935
Hon. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
I have your letter of the 18th instant enclosing the letter of Mr. A. N. Swain, Superintendent of Floyd County Schools, dated March 15 and requesting an opinion upon the following questions:
1. In view of the decision of the Court of Appeals in the case of McCleod v. Pulaski County, 178 S. E. 198, should the county board of education continue to carry liability insurance on school buses

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owned and operated by the County Board of Education for local school districts?
2. Do all buses purchased with tax money belong to the County Board of Education regardless of whether or not they are operated by Trustees or by the County Board?
In answer to the first question, I have read the opinion of the Court of Appeals in the McCleod case in which it was held,
"County, school district, and school superintendent are not liable for damages arising out of collision of school bus with plaintiff's automobile, since statute vests right to provide means for transportation of pupils solely in county boards of education, and since county is not liable for suit for any cause unless made so by statute. (Civil Code 1910, Sec. 384; 1551 (100))" By an amendment to Paragraph I, Section IV of Article VIII of the Constitution, 1932, it was provided:
"Provided, however, county boards of education, independent school systems, and local school districts may contract with each other for the education, transportation, and care of children of school age." (Ga. Laws 1931, p. 105) Also by the Act of 1927, Section 93, of the Act of 1919 authorizing the County Board of Education, whenever such body deems it for the best interest of the school, to provide means for the transportation of pupils and teachers to and from said school, this authority was extended to local school district trustees. (See Ga. Laws of 1927, page 174; Section 32-919 of the Code of 1933). It is my opinion that when any County Board of Education or board of local district trustees provides for the transportation of school children and teachers in the manner authorized by these laws, such county boards or district trustees act in a governmental capacity. The proper county authorities are authorized to levy and collect the tax to defray the expenses of such transportation, and for this and the reasons given above, the county board and local district trustees do not act merely in a proprietary capacity but in the exercise of a governmental function, when they furnish such transportation. Consequently, it is my opinion that neither the county, the county board of education nor the local district trustees would be liable to any passenger riding in school buses or to any person for property damaged by the operation of such school buses in the transportation of school children and teachers. See Fitzpatrick, et al v. Johnson, et al174 Ga. 746; Snipes v. Anderson, 179 Ga. 251; McKenzie v. Board of Education, 158 Ga. 892. In answer to the second question, I refer you to Section 32-909 of the Code of Georgia of 1933, which provides in part:
"The said Boards (County Boards of Education) are invested with the title, care and custody of all schoolhouses or other property belonging to the subdistricts now or hereafter defined, with power to control the same in such manner as they think will best serve the interests of the common schools." It would seem that under this provision of the law, title to school buses purchased with tax money and used in the transportation of school children and teachers vests in the county board of education.

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EDUCATION-State Superintendent of Schools should require to be filed with him a certified copy of the approved bond of the Secretary-Treasurer of an independent school district befon~ sending school funds to such independent district
April 5, 1935
Hon. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of the 4th instant requesting an opinion as to whether or not you should require the Secretary-Treasurer of an independent school district to file with your department a certified copy of the approved bond of such officer before sending school funds to an independent school district.
While it is true that the law requires the Ordinary to send a certified copy of the bond of the County School Superintendent to the State Superintendent of Schools (Section 32-1005 of the Code of 1933), I am unable to find any provision of law which makes the filing of a certified copy of the approved bond of the SecretaryTreasurer of an independent school district with the State Superintendent of Schools a condition precedent to the transmission of funds to an independent school district.
Section 32-945 of the Code of 1933 provides: "Each county and independent public school system receiving
funds from the State shall annually, through its executive officer, make out and submit to the State Board of Education an estimated budget of its receipts from all sources and its proposed expenditures for the next year, according to blank forms to be prescribed and furnished by the State Board of Education, and upon such dates as may be required by the Board of Education, and the filing of such estimated budgets shall be made before the State Superintendent of Schools may transmit to such public school systems any of the State school funds for the year which such budget is made." Section 32-947 provides:
"When the completed budget is made out as required by the State Board of Education, it shall be in duplicate and sworn to by the chairman of the board and executive officer. When duly approved by the Board a copy shall be put on file in its office, and another copy sent to the State Superintendent of Schools, who shall then be authorized to send such funds as may be in his hands to the credit of the county or independent system, and such county or independent system shall, in their expenditures of all public school funds from whatever sources, conform to said budget. No budget of expenses shall exceed its estimated income."
In view of these Sections, it is my opinion that when the State Board of Education approves the budget of an independent school district and submits a copy of such approved budget to the State Superintendent of Schools, the State Superintendent of Schools is authorized to send such funds as may be in his hands to the credit

of such independent system to be disbursed by the duly authorized officer of such system. The making up of such budget and the approval of same by the State Board of Education seem to be the only requirements which an independent school system must meet in order to obtain State funds in the hands of the State Superintendent of Schools. It would seem highly desirable that the State Superintendent of Schools before sending out such funds to the SecretaryTreasurer of an independent school system, should be properly advised that the person receiving such funds is properly bonded. However, in the absence of any provision of the Act of the General Assembly creating such independent school system, requiring the Secretary-Treasurer thereof to file such approved bond with the State Superintendent, it is my opinion that under the general law, the State Superintendent of Schools is not authorized to require the same before sending out school funds to such systems.
Under Section 32-501 of the Code of 1933, which provides the powers and duties of the State Superintendent of Schools, it is provided in part that he
"Shall, from time to time, prepare and transmit to them (subordinate school officers) such instructions as he may deem necessary for the faithful and efficient execution of school laws; and by what is thus communicated to them they shall be bound to govern themselves in the discharge of their official duties, . . . . etc." It may be that by your instructions to independent school systems, or by an appropriate rule or regulation, promulgated by the State Board of Education, acting under the authority of 32--403, which gives such board the power to "provide rules and regulations for the supervision of all schools," you could prescribe the filing of a certified copy of the approved bond of the Secretary-Treasurer of an independent school district as a condition to be complied with before school funds are transmitted to such independent systems.
EDUCATION-Use of Barrett-Rogers fund
April 15, 1935 Ron. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of the 8th instant requesting an opinion as to whether under the Diversion Law, the county boards of education are required to use the 1929 and 1931 common school funds and the 1930 and 1931 Barrett-Rogers school funds to pay the salaries of teachers owed by the county boards of education, or whether such part of these funds which represent appropriations to Barrett-Rogers Aid Schools may be paid to the schools designated as Barrett-Rogers schools.
In my opinion to the Governor, under date of April 2nd, 1935, a copy of which has been furnished you, it was said "Whatever amount of money is received by any county or independent school system

53
must first be used by such county or independent school system for the payment of past due salaries to teachers and bus operators which accrued prior to January 1, 1935, and these salaries must be paid in the order in which the indebtedness arose; that is, the oldest outstanding salaries must be paid first."
It was further said: "Section 2 of the Act provides for the distribution of the fund remaining after the payment of Confeqerate pensions to the payment of past due appropriations to the public school fund and the Barrett-Rogers school fund, and that this balance shall be distributed pro rata among the counties and independent school systems as regular appropriations are paid."
Section 32-510 of the Code of Georgia of 1933 was cited, which section recites the manner in which "regular appropriations are paid." See also Sections 32-513, 32-920 and 32-939.
Construing all of these cognate sections in connection with the Diversion Act, I am of the opinion that it was the intent of the legislature to apportion these funds equitably and upon the basis of the aggregate number of school children in each county. Taking this view of the Act, I am forced to the conclusion that these funds, or any part thereof, should not be used for the payment of any allotment to any school which has been designated by the State School Superintendent, acting under the authority of Section 32-918, of the Code of 1933. The Barrett-Rogers Act provides that the funds received by schools designated by the State Superintendent of Schools "shall be used by local authorities in the payment of salaries of principal and teachers" in such schools.
No authority is given in the Barrett-Rogers Act for the use of any of these funds for the payment of bus operators. Yet, in the Diversion Act, the unpaid salaries of school teachers and bus operators are on a parity and are given priority in payment over all other debts created by virtue of the operation of the common schools of the State. Therefore, I am of the opinion that unless and until the unpaid salaries of all school teachers and bus operators are paid, allotments under the Barrett-Rogers Act should not be paid to any school, as such payments would necessarily create a preference as between the other schools in the county which may not have been designated as Barrett Rogers aid schools and would be inimical to the scheme of equitable and pro rata distribution of these funds in the manner intended by the Legislature. To distribute to those schools which have been designated as Barett-Rogers aid schools more of the diversion funds than such schools would be entitled to if the funds were apportioned upon the basis of the aggregate of children between six and eighteen years of age in such schools, and giving effect to the Barrett-Rogers Act, to the exclusion of the express intent of the Legislature in the Diversion Act, would necessarily impair the ability of the county boards of education to retire in a uniform manner and equitably the debts due to the bus operators and school teachers over the county as a whole.

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EDUCATION-Disbursement of Diversion funds
April 23, 1935 Dr. M. D. Collins State School Superintendent Dear Dr. Collins:
Upon further consideration of the question as to whether schools which have been designated by the State Superintendent of Schools are entitled to receive Barrett-Rogers aid funds under the Diversion Act, or whether such funds go into the common school fund of the county and may be used by the county board of education to pay the salaries of teachers owed by the county boards of education, I have reached the conclusion that the Barrett-Rogers aid schools are entitled to such funds.
Section 2 of the Diversion Act provides that the diversion funds shall be used
"For the payment of past due appropriations to the public school fund and the Barrett-Rogers school fund and distributed pro rata among the counties and independent school systems as regular appropriations are paid." Significance attaches to the phrase "as regular appropriations are paid." Regular appropriations to the public schools of the State are paid to the counties after a statement, in accordance with the provisions of Section 32-920 of the Code of Georgia of 1933, is submitted to the State Superintendent of Schools, approved by the State Superintendent and presently the Governor. This section should be construed in connection with .Section 32-939, which provides: "As soon as the county board of education shall communicate satisfactory evidence to the State Superintendent of Schools that arrangements have been made, by taxation or otherwise, for continuing the common school, free to all, for at least six months in the year throughout the entire county, said county shall be deemed and held to be entitled to draw her proportionate part of the State funds." It should also be considered in connection with Sections 32-945, 32-946, and 32-947, which sections require each county and independent school system receiving funds from the State to submit to the State Board of Education a budget of its anticipated receipts and proposed expenditures for the next year; to classify the receipts and expenditures, which budget, when duly approved by the State Board of Education, shall be put on file in its office and another copy sent to the Superintendent of Schools. "Who shall then be authorized to send such funds as may be in his hands to the credit of the county or independent system, and such county or independent system, shall, in their expenditure of all public funds, from whatever source, conform to said bud~et. No budget of expenses shall exceed its estimated income." Thus we see that regular appropriations to the public schools of the various counties of the State are paid out in accordance with the

55
budget submitted by the county school superintendent to the State Board of Education and approved by the latter body. We understand that in making up the budget, the various county school superintendents, in determining what amount of State funds a local school district should receive from the funds received by the county board of education from the State, give effect not only to Section 32-510 of the Code, which provides for the equitable apportionment of the school revenue upon the basis of the aggregate of school children between six and eighteen years of age in the local districts of the county, but also to Section 32-948 of the Code which deals with the equalization fund.
The county authorities, after receiving funds from the Diversion Act, should pay such funds out to the local districts in accordance with the terms of the budget filed by the county superintendent of schools with the State Board of Education, paying to each local district in the county its pro rata part of the funds, and to those schools which have been designated as Barrett-Rogers aid schools, the pro rata part of the funds coming to the county board of education from the Diversion fund as a payment on the past due appropriation of 1930 and 1931.
In other words, if the county received $10,000 as 55Y2% of the appropriation to the common school fund for the years 1928 and 1929, and $5,000 as 55Y2% of the appropriation to the Barrett-Rogers aid schools of the county under the Appropriation Bill of 1929 for the years 1930 and 1931, the $10,000 should be pro rated among the local school districts of the county, in accordance with the amount allowed such schools in the budget filed with the State Board of Education by the County School Superintendent. The amount received by the county board of education as Barrett-Rogers aid money should also be distributed pro rata among the Barrett-Rogers schools of the county.
In keeping with the purpose, spirit and clear intent ,of the Diversion Bill the local trustees who are charged with the duty of making the ultimate distribution of the diversion fund, should be instructed by the State and county authorities to apply said funds on the payment of the past due salaries of teachers and bus drivers which accrued prior to January 1, 1935, so long as any of said salaries remain unpaid and without regard to whether the fund turned over to them was a part of the regular appropriation or a part payment on the unpaid Barrett-Rogers allocation. After the past due salaries of the teachers and bus operators have been paid, of course, any remaining funds may then be used in the discharge of other legal obligations of said boards.

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EDUCATION-Construction of Diversion Act
April 25, 1985 Dr. M. D. Collins State School Superintendent Dear Dr. Collins:
I have yours of recent date asking several questions which arise under the Diversion Act. I will attempt to answer them categorically.
1. Is there any limit to how far back the past due salaries of teachers and bus operators shall be paid with diversion money?
Answer: I am of the opinion that the Diversion Act contemplates that the funds arising under Section 1 of said Act should be applied only to the payment of past due salaries of teachers and bus operators which were incurred since January 1st, 1928, and before January 1st, 1935.
2. Since the State cannot legally assume debts owed by counties, can the county assume debts owed by the district?
In answering this question, we call your attention to the fact that the funds arising under the Diversion Act are not in the nature of general appropriations. This fund is a special appropriation, and is, under the terms of the Diversion Act, to be distributed to the counties and independent school systems "as regular appropriations are paid." When these funds reach the hands of the county board of education, they do not become the funds of the county board to be disbursed by said board as the board deems best, but in effect, the county board of education becomes a trustee of these funds and is charged with the duty of distributing the same to the local school districts in accordance with the approved budgets of the county board of education for the years 1928 to 1935. The county board, does not therefore, assume the debts of the local school district, but merely disburses the funds to the local school districts on a pro rata basis according to the approved budget, which said budget is made up in a manner so as to equitably apportion all of the funds coming into the hands of the county board of education as between the various school districts of the county, giving effect to Section 32-510 and Section 32-948 of the Code of 1933.
The legislature, in making this special appropriation, and diverting these funds, acted clearly within its authority in prescribing the method of distribution and the purpose for which the funds were to be used. If the county board distributes this money to the local school districts, the local school district authorities are bound to use the same for the payment of past due salaries of the teachers and bus operators legally incurred, and should there be any fund remaining, the same may be applied to any other legal indebtedness of the district.
3. If a county has borrowed money and pledged as collateral the unpaid State appropriation, are they required to disregard the pledge and pay the money to teachers and bus operators?
Answer: The county could not have borrowed money and pledged as collateral any funds arising under the Diversion Act. Funds

57
arising under this Act must be applied to the special purposes provided in the Act. These funds are not regular appropriations to the common school fund and Barrett-Rogers aid schools funds but are special funds which are to be distributed to the counties in the same manner as "regular appropriations are paid." Therefore, the funds received by a county under the Diversion Act must first be used by the county, independent and local school districts, for the payment of unpaid salaries to school teachers and bus operators. Such funds, as long as there are outstanding unpaid salaries to school teachers or bus operators, cannot be used by the school authorities for the payment of debts to banks or transferees of scrip issued to school teachers and bus operators. Of course, if all the school teachers and bus operators in a local district have been paid, such district, when it receives the pro rata share of the funds, may use the same to pay a bank from which it has borrowed money to pay teachers and bus operators or may use the funds for any other legal school purpose. This is true also as to Barrett-Rogers money received by a school district.
If money has been borrowed from a bank in anticipation of the Barrett-Rogers money, and the district owes salaries of school teachers and bus operators, when the district receives a part of its allocation under the Diversion Act to apply on the Barrett-Rogers aid appropriation, such funds must first be applied to the payment of the salaries of the teachers and bus operators owed by the district before the balance, if any, may be applied to the retirement of the loan with the bank for which the regularly anticipated BarrettRogers aid appropriation was pledged.
EDUCATION-Collection and division of past due taxes
May 10, 1935 Hon. M. D. Collins State School Superintendent Dear Dr. Collins:
I have yours of the 8th instant asking certain questions concerning the collection of taxes and the manner of distribution of such funds to the schools.
I shall attempt to answer the questions in the order in which they occur in your letter.
1. When taxes are not paid and fi. fas. are issued, upon the subsequent payment of the principal, interest and cost of fi. fas., are the schools entitled to their proportionate part of the interest collected?
Yes. I am of the opinion that the interest on such fi. fa., when collected, must be applied to the same purposes for which the principal of the fi. fa. is applied and the same purposes for which the tax was originally levied. In other words, I do not think that the county authorities can divert or alienate the interest arising upon a fi. fa., issued for past due county wide and local school taxes to a purpose other than that to which the principal is applied.

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2. In order to collect fi. fas. a levy and sale is made and the county becomes a purchaser, upon subsequent redemption or sale by the county, under which sale or redemption the county collects the entire principal, interest and penalty provided by law, are the schools entitled to their proportionate part of the principal and interest as collected?
Yes. The schools are entitled to the proportionate part of the principal and interest arising from the redemption or sale by the county of the property.
3. When the county becomes a purchaser at a tax sale by bidding the amount of the taxes due, are they then required to immediately account with the schools for their proportionate part of the taxes?
In the case of Newsome v. Dade County, 179 S. E. 89, the Supreme Court held:
"Tax sale to county is not complete, so as to start statute running against owner's right of redemption, until Ordinary has paid full amount of his bid, including taxes and interest thereon due state. (Code of 1933, Sections 92-8202, 92-8201, 92-8301)."
Under this decision, where a county, acting under the authority of the code sections cited above, purchases property at a tax sale, it is incumbent upon the authorities in charge of the fiscal affairs of the county to pay the amount of taxes due the State as represented in the fi. fa. under which the property was sold. This decision of the Supreme Court limits its holding to taxes due the State. I do not think that this decision is authority for the proposition that, in order to complete the sale, the county authorities should pay to the levying officer the amount of taxes due for county-wide and local school district tax as represented in the fi. fa. I am of the opinion that the county authorities have to pay only those taxes represented in the fi. fa. which are superior to the county taxes of every nature.
If it were held that the county, upon buying in the property under a tax fi. fa. which includes county-wide and local district school tax, must pay the county-wide and local district school taxes to the proper authorities of the county entitled to receive the same, the county would be placed in the anomalous position of having to take money out of one pocket, levied and collected for other purposes, and pay the same in liquidation of the tax claims of the county and local school district even though the county itself had never received any funds by virtue of the levy and sale under the fi. fa. issued for such taxes. In other words, a debt or an obligation to pay the county-wide and local school tax would arise by virtue of the purchase of said lands before the county itself had received payment of the fi. fa. This would work an unjust burden upon the county, as the county does not have any authority to levy a tax to meet deficiencies which arise due to the exercise of the power granted under Section 92-8201.
The fi. fa. in question in the Dade County case included not only state and county taxes, but also county-wide and district school taxes.

!)9
Justice Atkinson, in his opinion, refers to the decision in Newsome v. Dade County, 177 Ga. 612, in which it was held that when a county purchased land under a tax fi. fa. the equity redemption begins running only when the county authorities have drawn their warrant "on the county Treasurer to pay the officers the costs due on said fi. fas., and accruing costs in effecting said sales," and adds:
"The levying officer is additionally entitled to the money for taxes, including the taxes and interest due the state, where the property has been bid off for the amount of cost and taxes. It is his duty to collect the amount of the bid and disburse it according to law. If the Ordinary has not authority to issue his warrant on the county Treasurer for taxes specified in the tax fi. fa., or there be other legal difficulty preventing him from paying the levying officer, that does not excuse payment as a condition to casting the owner in default with respect to redemption of the property. It simply means, payment not having otherwise been made, that if he has not complied with his bid by payment of the money, the sale is not complete, and the owner must not be considered in default."
If the question for decision in the last Dade County case, decided February 22, 1935, was made by an amendment to the original pleadings as presented in the case of Newsome v. Dade County, 177 Ga. 612, the amendment alleging "that the said county has not paid .the State of Georgia the State's part of the taxes included in the fi. fas., by virtue of which plaintiff's property was sold, and plaintiff alleges that the redemption period does not expire until one year from the time said county pays the state its part of the taxes," and alleging that it was incumbent upon the county to pay that part of the taxes due the state, as represented by the fi. fa., before the sale would be complete, it is my opinion that the court in its decision of February 22, did not decide that the county, in addition to the state taxes, would have to pay the county-wide and district school taxes to the Sheriff in order to complete the sale.
4. Is it legal or permissible for tax collectors to issue two fi. fas., against the same individual in the same county for one year's taxes, one of these fi. fas., covering county taxes and the other school taxes?
There is no specific authority under the law for the division of the fi. fas., issuing a separate fi. fa. for state and county general taxes, and another fi. fa. for county-wide and local school district taxes. Neither is there any authority prohibiting such a division. However, if the law, as expressed in Chapter 92-51, seems to contemplate only one fi. fa. for all of the various items of taxes due by any particular taxpayer, I am of the opinion that the better custom would be to issue only one tax fi. fa. covering both state, general county, countywide and local school district taxes.

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EDUCATION-Duties of State Superintendent of Schools under Oath of Allegiance Act of 1935
May 13, 1935 Hon. 1\I. D. Collins State School Superintendent Dear Dr. Collins:
I have your letter of recent date requesting my opinion as to the force and effect of the resolution of the General Assembly, approved March 26, 1935, prescribing an oath to be taken by school teachers and other employees, and as to your duty as Superintendent of Schools under that resolution.
This resolution was read three times on separate days in each House of the General Assembly, passed each House by the requisite constitutional majority and was approved by the Governor on March 26th, 1935. It therefore has the force and effect of law.
The resolution provides in part as follows: "That every teacher in the public schools of this State, whether
elementary, high school, college or university, and all other employees, of the State or sub-division thereof drawing a weekly, monthly or yearly salary, shall before entering upon the discharge of their duties, take and subscribe a solemn oath to uphold, support and defend the Constitution and laws of this State and of the United States, and to refrain from directly or indirectly subscribing to or teaching any theory of government or economics or of social relations which is inconsistent with the fundamental principles of patriotism and high ideals of Americanism." The resolution further provides that
"The form of such oath shall be prescribed by the State Superintendent of Schools and the oath of each teacher shall be filed in the office of the Superintendent of Schools of the county or other school system in which such teacher is employed, other employees shall file their oath with the Department in which they might be employed and shall be annually renewed." By its express terms the resolution applies to each teacher whether teaching in the elementary schools, high schools, colleges, or universities, and also every employee of the State or of any political subdivision of the State who is compensated by the payment of a weekly, monthly or yearly salary. It applies to all the employees of the counties and municipal corporations in the State and to all employees of every other political subdivision of the State who are thus compensated.
Under the express terms of the resolution, no person who fails or refuses to take the oath prescribed can be paid from any public funds; and any person taking such oath who shall violate the same is guilty of a misdemeanor and the violation constitutes ground for immediate discharge.
Under the resolution, it is your duty to prescribe the form of the oath and supply the same to all state, county and municipal employing authorities. You should also advise them that every state,

61
county and municipal employee coming within the provisions of the resolution must take and subscribe to the oath as a condition precedent to' employment and that a failure to do so will be a bar to employment and receiving payment from public funds from the state or from any county, municipal or political subdivision thereof.

EDUCATION-Duties of State Superintendent in cases of appeal to him

May 24, 1935

Hon, M.D. Collins

State Superintendent of Schools

Dear Dr. Collins:

This will acknowledge your inquiry of May 23rd, 1935, as follows:

"The trustees of the Lowery Consolidated School District,

Laurens County, have filed with me an appeal, through the county

superintendent of schools, on the following:

1. The above mentioned district voted bonds for a school

building.

2. Certain citizens of the district were dissatisfied with the

building site selected by the trustees and appealed to the county

board of education ('the board of education shall have nothing

to do with the location of the school site in local districts except

on appeal'-Sec. 32-1401).

3. The county board of education disapproved the site selected

by the trustees and designated another site.

Is this question (the selection of a school site) subject to appeal

to the State Superintendent of Schools?

Which board-district or county-has authority to select the

site for a school building that is to be erected with funds derived

from a district bond issue?"

Section 32-1401 of the Code of 1933 provides the method whereby

the citizens of a local school district may provide funds for the

erection of a school building by the issue of bonds. The concluding

sentence of that section is as follows:

"The board of education shall have nothing to do with the loca-

tion of the school site in local districts except on appeal."

.

The provisions of this section, in so far as they relate to the location

of the school site, must be construed in connection with the pro-

visions of Section 32-910 which are as follows:

"The county board of education shall constitute a tribunal

for hearing and determining any matter of local controversy in

reference to the construction or administration of the school law,

with power to summon witnesses and take testimony if necessary;

and when they have made a decision, said decision shall be bind-

ing upon the parties. Either of the parties shall have the right

of appeal to the State Superintendent of schools, and said appeal

shall be made through the county superintendent of schools in

writing and shall distinctly set forth the question in dispute, the

decision of the county board and testimony as agreed upon by

62
the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools." Controversies over the location of school sites were the subject matter of much litigation prior to the enactment of the school Code of 1919. In the case of Edge v. Garrett, 138 Ga. 93, decided in 1912, the Supreme Court said:
"A controversy arising as to the location of the site for a school building, in a school district in which an election has been held and the result thereof declared in favor of local taxation for public schools, must be determined by the county board of education, with a right of appeal to the State School Commissioner and the State Board of Education; and a court of equity will not entertain jurisdiction of the subject, but will remand the parties to their legal remedy."
It will be observed that the controversy dealt with in the case just cited did not involve the question as to the location of the school site where bonds had been issued for the purpose of building.
In the case of Marshall v. Clements, 150 Ga. 707, decided in 1920, it was decided by the Supreme Court,
"A controversy as to the location of a site for a school building and the erection of a school house thereon, in a school district wherein an election has been held to determine the question whether bonds should be issued for the purpose of building the school house, and the result thereof declared in favor of such issuance, must be determined under existing laws respecting the administration of the public school system; and a court of equity will not entertain jurisdiction of the subject, but will remand the parties to the controversy to the statutory remedy."
The case of Edge v. Garrett, first above cited, was the authority upon which the Marshall v. Clements case was decided. Referring to the provisions of the code sections above quoted, the Supreme Court in the case of McCulley v. McFarland, 155 Ga. 700, said:
"Properly construed, the powers herein granted to the trustees in local school districts and to the county board of education authorizes, in the first instance, the local board of trustees for the school district to select new sites and erect new buildings subject to appeal to the county board of education. Where there is such appeal, the county board of Education has lawful authority to select the site and order the erection of the building thereon; and the county board is not confined to the approval or disapproval of the site selected by the local board but may reject that site and select an entirely different site."
In the case of Wilder v. Thompson, 169 Ga. 812, the Supreme Court, citing the cases of Edge v. Garrett and Marshall v. Clements, supra, said:
"A controversy as to the location of a school building site in a district where an election has resulted in favor of local taxation for public schools, is determinable by the county board of educa-

63
tion, with right of appeal to the State' School Commissioner and Board of Education." In the case of Plainfield v. Cook, 173 Ga. 447, 451 (8), the Supreme Court said:
"The selection of a location for the construction of a school house in a school district is a political power of the State which the legislature has seen fit to confer upon the board of trustees of a dis~ trict and the county board of education in which the district is located." In the case of Plainfield School District, just cited, it appears that there was a controversy between citizens living in the town of Plainfield and those living outside the town as to the location of the site of a new school building. The location outside the town of Plainfield was selected. An appeal from this selection was made to the county board of education and confirmed. Thereupon an appeal was taken to the State Superintendent of Schools under the provisions of Code Section 32-910 and the selection of the school site by the county board of education was approved on appeal. This was a case where the building was to be erected from the proceeds of bonds issued and sold by Plainfield Consolidated School District and was an application for the writ of mandamus to compel the board of trustees and the county board of education to build a school house at the location outside of the municipal limits in accordance with the result of the proceedings on appeal to the State Superintendent of Schools. On the trial of the case the judge made the mandamus absolute. The effect of this was to compel the local .trustees to proceed to erect the building at the site outside of the municipal limits of Plainfield. From the foregoing, it will be seen that while the right of selection of a school site in the first instance is in the local trustees, the right of appeal to the county board of education exists and either party dissatisfied with the findings of the county board of education has the right to appeal to the State Superintendent of Schools and the finding on the subject by the State Superintendent of Schools is final.
EDUCATION-Where local tax district divided into two districts new election for local tax not necessary; trustees for new district, how elected
June 18, 1935
Dr. M. D. Collins State Superintendent of Schools
My dear Dr. Collins: Your letter of recent date requesting my opinion as to whether
or not when a county board of education acting under authority given in Section 32-916 of the Code of 1933 divides a local tax school district, making two districts out of the same territory does the law require

(a) That an election for trustees be held in either or both of the districts? Section 3~-916 of the Code of 1933 gives the county board of education authority to separate and divide any school district into two or more School districts and to provide for the election of a board of trustees for each of said districts and to do other things for the government and control of said districts as therein provided for the organization and control of the school districts. As I understand it the territory now embraced in one district will be divided into two districts without the addition of any other territory. One of these districts will of course retain the name of the present district and the other district will assume a different name. Under such conditions I am of the opinion that the intent and spirit of the law would be met by providing for an election to fill the vacancies in the board of trustees, if any, in the district retaining the old name caused by the division, the present resident trustees in that district serving out their present terms. I am of the further opinion that the spirit and intent of the law would be fully met by providing for an election for new trustees in that district which took a new and different name. The present organization of the district retaining the present name should remain intact so far as possible, while the territory embraced in the new district would, in my opinion, be entitled to a new organization. As previously stated, these matters, however, are largely left to the discretion of the county board of education. Your second query is Whether or not that an election be held in either or both of the districts before local school tax may be levied? Since a local tax has been voted throughout the entire territory and no new territory will be included in the two school districts which has not already voted a local tax it will not, in my opinion, be necessary to have another election on local school tax in either of the two separate districts made from the original district. The entire district now having a local tax it would not in my opinion be necessary to again vote local tax in the two districts made from the original district.
EDUCATION-Consolidation of bonded and non-bonded districts
July 12, 1935 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of July 6th stating that a county board of education acting under authority of Section 82-917 of the Code of 1983, consolidated several districts, one of such districts having an outstanding bond issue, and that trustees have been elected by the consolidated districts and that some of the trustees do not reside within the bonded territory. You desire to kn0w whether or not the

65
trustees of the consolidated district have authority to levy a bond tax against the territory (formerly a district) which now constitutes only a part of the consolidated district.
Under Chapter 32-14 of the Code of 1933, authority is given school districts or consolidated school districts to hold an election for the purpose of voting bonds to build and equip school houses. In this chapter it is provided:
"For the purpose of taking care of and paying the principal and interest of these bonds, the board of trustees shall recommend, and the board of county commissioners or the ordinary, as the case may be, shall levy upon the property subject to taxation in the district, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying the principal thereon and the interest thereon; this to be in addition to the general tax and the maintenance of the schools of said territory." (Section 32-1402; Ga. Laws, 1921, p. 228). It is also provided by Article 7, Section 7, Paragraph 2 of the Constitution:
"Any county, municipal corporation or political division of this State which shall incur any bonded indebtedness under the provisions of this Constitution shall at or before the time of so doing provide for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of said indebtedness within 30 years from the date of the incurring of said indebtedness." The law requires that bonds, before they are issued by a school district, shall be validated, and the courts have held that the judgment upon a petition for validation of bonds is conclusive. See Towns v. Workrnore Public School District, 166 Ga. 393. In the case above cited it was said by the Supreme Court:
"Under the provisions of the Constitution, which requires, at or before the issuance of any bonds imposing liability upon the taxpayers, there shall be provisions made for the levy of a tax sufficient to pay the interest and providing a sinking fund, there is a conclusive presumption of law that provision had already been made for the payment by the taxpayers of the Workrnore Public School District before Union Grove asked to be consolidated therewith for the raising of the sinking fund and the payment of all the interest. The law will not allow this presumption to be inquired into or contradicted." See also Seaboard Airline Railway Co. v. Wright, 165 Ga. 367(2).
There being a conclusive presumption that at the time the district referred to in your letter was bonded, provision was made for the levy and assessment of an annual tax sufficient in amount to pay the principal and interest of the bonded indebtedness within thirty years, and the consolidation of the bonded district having occurred subsequent to the issuance of the bonds, I am therefore of the opinion that the trustees of the newly created consolidated district are not required to levy a bond tax, and have no function to perform with reference to same, other than to recommend to the county au-

66
thorities the levy of the tax, as provided by Section 32-1402. The county authorities, having notice of the bond election held in said district and of the validation of such bonds, upon the recommendation of the trustees, are charged with the duty of levying a tax sufficient to take care of the principal and interest on said bonds.
The consolidated district trustees, by virtue of their election, succeed to all of the powers and duties which were vested in the bonded district trustees prior to the consolidation,. with respect to the retirement of the outstanding bonds.
EDUCATION-Powers of State Superintendent in appeals
August 2, 1935 Hon. M.D. Collins State School Superintendent Dear Dr. Collins:
This will acknowledge yours of the 31st ultimo, inclosing copies of the pleadings filed with you in the appeal by the local trustees of the Lowry School District from the decision of the Laurens County Board of Education, relative to the location of a school building. You request my opinion as to whether under the law, you have the authority to sustain the appeal and to declare the site selected by the local trustees as the site upon which the school building shall be erected.
Section 32-910 of the Code of Georgia of 1933, provides: "The county board of education shall constitute a tribunal for
hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Superintendent of Schools, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board, and testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools." Construing this section, I am of the opinion that when a controversy is appealed to you and you render a decision therein, such decision is final and binding upon the parties to the controversy. Should you have merely held that the county board of education erred in selecting the school site, and referred the matter back to the county board, the controversy would not have been ended, and it is probable that the matter would have reached your hands again upon another appeal, should the county board choose any other school site than that chosen by the local board of trustees. I think you were authorized and it was competent for you to settle the matter finally by your decision and order, without referring the same back to the county board of education. I am returning the file in this case.

67
EDUCATION-How to determine whether the law has been complied with which requires that two-thirds of the qualified voters shall vote favorably for bonds and said two-thirds must constitute a majority of the registered voters
August 8, 1935 Hon. M.D. Collins State Superintendent of Schools My dear Dr. Collins:
Yours of the 8th instant requesting an opinion as to which listthe list of voters used in the general election or the purged list as contemplated under Section 145 of the Act of 19~1 (Ga. Laws 19~1, p. 227; Section 32-1403 of the Code of 1933)-should be used in determining whether or not the law has been complied with which requires that two-thirds of the qualified voters shall vote favorably for bonds and said two-thirds must constitute a majority of the registered voters.
I think that this question was specifically answered in the case of Fairburn School District v. McLaren, 166 Ga. 867, wherein it was said:
"The legislature . . . . contemplated that the requisite number of voters essential to carry the election for issuance of bonds should be the prescribed proportion of the voters whose names should appear upon the registered voters list as purged by the official registrars." See also Buchanan v. Woods Consolidated School District, 168 Ga. 626; Daniel v. City of Claxton, 35 Ga. App. 107 (4); Chapman v. Sumner Consolidated School District, 152 Ga. 451; Terrell v. Forest Park School District, 175 Ga. 88. You refer to my opinion of June 2nd, 1933, where practically this same question was discussed. I call your especial attention to this language contained in the first paragraph of page 2 of said opinion:
"I am of the opinion that under the provisions of law governing the duties of registrars, it would be their duty to purge the list of the voters of the last general election in militia districts which will contain the names of the voters residing in the school district voting on the bonds. From these purged lists the tax collector is required to make a list of the voters residing in the school district whose names appear upon said lists after they have been purged." This is the-list, so purged, which is certified by the tax collector to the election managers, and the total number of names appear upon said purged list is the figure to be taken in determining whether two~hirds of the voters voting in said bond election constitutes a "majorIty of the registered voters."

68
EDUCATION-District trustees may not charge a transportation fee for elementary or high school pupils residing in the district August 16, 1935
Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of the 15th requesting an opinion as to whether or not the district trustees may charge a transportation fee for elementary and/or high school pupils residing in the district.
The Constitution of our State provides: "There shall be a thorough system of common schools for the
education of children, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State . . . " (Article 8, Section 1, Paragraph 1) Section 32-919 of the Code of Georgia of 1933 authorizes the transportation of pupils and teachers by county boards and local district trustees when it is deemed .for the best interest of the school, also, by an amendment to Article 8, Section 4, Paragraph 1 of the Constitution, ratified November 8, 1932, as follows:
"County boards of education, independent school systems and local school districts may contract with each other for the education, transportation and care of children of school age." Construing all of these sections in the light of the decisions of our Supreme Court, I am of the opinion that the constitutional provisions above cited and the statutes relative to the transportation of school children, contemplate that the expenses of such transportation shall be defrayed with funds raised by taxation, and where school district trustees elect to transport the children of their district to and from the school, no fee could be charged any child for such transportation where such child is included in the school census of said district. See Douglas v. Board of Education, 164 Ga. 271; Snipes v. Anderson, 179 Ga. 251; Peak v. Board of Education of Cuthbert, 177 Ga. 476.
EDUCATION-Georgia Military College is an independent school district
September 5, 1935
Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
This will acknowledge receipt of the letter of Mr. P. N. Bivins, Superintendent of Schools of Baldwin County, under recent date, requesting an opinion as to the status of the Georgia Military College; whether this college is a public or private institution.
I have made considerable search among the Acts of the legislature in an effort to obtain a complete legal history of this institution. In the course of this search, I have found in the report of the 44th

69

annual session of the Georgia Bar Association (1927, pp. 303-304) a

very thorough and exhaustive paper delivered before the Georgia

Bar Association upon the subject, "The legal history of the Univer-

sity of Georgia," prepared and delivered by Hon. Richard B. Russell,

Chief Justice of the Supreme Court. After summarizing the various

Acts of the legislature relative to the Georgia Military College at

Milledgeville, Judge Russell closes with this rema