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.

60
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 remark:

.

"There is apparently no legislative enactment expressly chang-

ing the Georgia Military College from a Department of the Univer-

sity of Georgia, as provided in the Act creating the Middle Georgia

Military and Agricultural College, October 14, 1879 (Acts of

1878-1879,p. 91)."

By reference to the Act referred to it is found that Section 1 pro-

vides:

"The State house and square, the Executive Mansion and prem-

ises, and the Penitentiary Square and appurtenances at Mil-

ledgeville, are hereby committed and loaned to the Trustees of the

University of Georgia for the purposes hereinafter stated."

Section 2 of this Act provides that the college, operated by the

Trustees under the authority of this Act "shall be a department of

the University of Georgia." By an Act approved three days later,

to wit, October 17, 1879, a local Board of Trustees was appointed

and their successors provided for and it was specifie<;l,

"That all Acts of said local Board of Trustees shall be subject

to the approval or disapproval of the Board of Trustees of the

University of Georgia, and any Act disapproved shall be null and

void." (Ga. Laws 1879, pp. 95-96)

By an Act approved September 30, 1887, the Mayor and Alder-

men of the City of Milledgeville were authorized to call and hold an

election to determine whether the city should levy an annual tax for

the support of the Middle Georgia Military and Agricultural College

(Ga. Laws 1887, p. 821).

In 1892 the legislature provided that the land occupied by this

college and loaned to the Mayor and Council of Milledgeville for

school purposes could be retaken by the State at any time, provided

the State allowed the City to remove any buildings erected by it on

said property. (Ga. Laws 1892, p. 84).

In 1900 the name of this college was changed to the. "Georgia

Military College," remaining a "department of the University."

(Ga. Laws 1900, p. 85).

In 1920 the trustees were authorized to determine the policy and shape the conduct of said college; to fix the compensation of all officers and teachers of said college, and generally, to do any and
everything usual and necessary in the administration of said school. (Ga. Laws 1920, p. 153)

By Section 14. of an Act approved August 1, 1922 (Ga. Laws 1922, pp. 110-113) it was provided:

"The legal title to all the property of said Georgia Military College, now in the possession or hereafter to be acquired, shall be in the corporate body hereinbefore created, and the officers of

70
said corporation, hereinafter provided for, shall take care to provide for the protection, insurance and safeguardance of all of the said property." It should be noted in considering the provisions of Section 14 of this Act, which created a new Board of Trustees for this college, that the property referred to in this Section could not be the real estate upon which the buildings are located, as under the original Act creating the Middle Georgia Military and Agricultural College, this real property was only "committed and loaned to the Trustees of the University of Georgia," and so far as we are able to determine, this loan to the University of Georgia has never been revoked. Neither has the legislature nor other proper authorities, by statute or otherwise, provided for the transfer of the title of this property to the Trustees of the Georgia Military College, or to the City of Milledgeville. In fact, this property is found listed under Section 91-101 of the Code of Georgia of 1933 as among the property owned by the State. This Section declares in part:
"The State owns the following property: The old Capitol building and the Square in the City of Milledgeville upon which it is situated. The old Executive Mansion and the site of the old Penitentiary in the City of Milledgeville, both now occupied by the Georgia State College for Women." Although the Act of 1879 providing for the establishment of this college provides that it shall be "a department of the University of Georgia," it is significant in considering the present status of this college that in the Code of Georgia of 1933 it is not listed as being a "branch" of the University of Georgia. (See Section 32-103 of the Code of Georgia of 1933). I am further informed by Mr. Seibert, Secretary of the Board of Regents, that the Board of Regents exercises no control whatsoever over this college, or the property occupied by it, and have never treated it either as a "branch" or as a "department" of the University of Georgia. Considering all of these facts and the legislative enactments pertaining to this college, I am of the opinion that the Georgia :Military College, if it ever was, is no longer a "department" or "branch" of the University of Georgia, and that its present status is that of an independent school district, as contemplated by Sections 32-1111 and 32-1112 of the Code of Georgia of 1933. This conclusion is fortified by the fact that the government and control of this school is vested in a local Board of Trustees; that a local tax for the support and maintenance of the school is levied in the Milledgeville school district; and that instead of receiving funds by legislative appropriation, as other colleges classified as "branches" of the University of Georgia, Georgia Military College is supported and maintained by funds derived from the local taxes referred to above and a pro rata distribution of funds from the State School Superintendent according to school population, as provided by Section 32-508. (See also Sections 32-510 and 32-513).

71
Therefore, I am of the opinion that in the distribution of the socalled "Highway Diversion Funds" the County Board of Education of Baldwin County was correct in allotting to the Georgia Military College the part of the funds due the school district of Milledgeville.

EDUCATION-Contest of election for school district trustees, who hears
September ~-i, 1935 Hon. M:. D. Collins State Superintendent of Schools Dear Dr. Collins:
I have your letter of September 24th, which reads as follows: "Your opinion is requested as to the proper board or official
to hear the contest of an election for school district trustees. "Also, within how many days after the election must the con-
test be filed?" This question has been decided by the Supreme Court in the case of Nash v. Robinson, Ordinary, 159 Ga. 185, as follows:
"Under the Act of 1919 (Acts 1919, pp. 288, 324, 8 Park's Code Supp. 1922, Sec. 1437j), which provides that the county boards of education of the respective counties of the State shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, such county board of education has no power or authority to hear and determine election contests growing out of the election of a school trustee within a local school district within a certain county in this State. The ordinary of the county wherein such contest may arise has jurisdiction to hear and determine such contest."
The applicable Code Section in the Code of 1933 in Section 343001. The procedure is fully set out in Sections 34-2801, 34-2802 and 34-2803.

EDUCATION-Operation of county line schools

Hon. M:. D. Collins

October 9, 1985

State Superintendent of Schools Dear Dr. Collins:

This will acknowledge your letter of recent date requesting a

construction of Section 32-938 of the Code of Georgia of 1933 which provides:

"When a common school is located near a county line children from adjoining county shall be permitted to attend the school;

provided, such children reside near such school or said school is more accessible to the residence of such children than any public school in the county of their residence."

72
In view of this Section, you desire to know whether the term "more accessible" may be construed to mean that where children live near a county line and the nearest grammar school in the county of their residence is three miles away and the nearest high school ten miles away and no transportation is provided by these schools, but the school bus from the adjoining county comes within one-half mile of the county line (the school building being four miles from the county line) such children would be eligible to attend the schools in the adjoining county, which affords transportation within one-half mile of the county line.
The new Century Dictionary defines the word "accessible" as follows:
"Capable of being approached or reached; easy of access; approachable; attainable." From the facts stated above, it clearly appears that the schools in the adjoining county are more accessible, due to the convenience of transportation, than the schools in the county where such children reside. Therefore, I am of the opinion that such children are eligible to attend the schools in the adjoining county. Their transportation to such schools, however, is a matter within the discretion of the respective county boards and local school district trustees, and such boards and trustees are authorized under the amendment to Article 8, Section 4, Paragraph 1 of the Constitution, ratified N ovember 8, 1932, to "contract with each other for the education, transportation, and care of children of school age." (See Ga. Laws 1931, pp. 103, 105).

EDUCATION-Boys may not be required to take military training in the public schools

October 17, 1935

Hon. M.D. Collins

State School Superintendent

Dear Dr. Collins:

I have yours of the 14th instant requesting an opinion upon the

following questions:

1. May boys be required to take military training in the public schools?

2. If so, may they be required to furnish their own uniforms?

I think that the answer to both of these questions is to be found

in the Constitution of our State. Article 7, Section 1, Paragraph 1

of the Constitution provides in part:



"The power of taxation over the whole State shall be exercised

by General Assembly for the following purposes only :-for edu-
cational purposes in instructing children in the elementary branches of an En~lish education only."

Article 8, Section 1, Paragraph 1, provides:

"There shall be a thorough system of common schools for the

education of children as nearly uniform as practical, the expenses

78
of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races." Military training is not included in the elements of an English education as defined by Sections 3~-704, 3~-705 and 3~-706 of the Code of Georgia of 1933. Consequently, I am of the opinion that since there is no authority in the Constitution and laws of this State for the levy of taxes to provide for the teaching of military training, the answer to your first question is "No." The Constitution providing that the public schools of this State shall be free to all children of the State, I am of the opinion that the authorities of a public school may not require students taking military training to furnish their own uniforms as a condition to their attendance upon said schools. Such a requirement would in many cases deprive students of a free access to the schools and their constitutional right to obtain an education in the elementary branches of an English education.
EDUCATION-Who qualified to vote in school district bond election
October 18, 1935 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
This will acknowledge reference of the letter of Superintendent W. E. Nichols of Thomas County, Georgia, requesting an opinion as to
who is qualified voter in aschool district bond election. .
In dealing with this question, the Supreme Court in the case of Chapman v. Sumner Consolidated District, 16~ Ga. 450, held:
"The voter's name must appear on a list, general or supplementary, of the county registrars, :filed with the Clerk of the Superior Court of the County, showing the registered voters of the county entitled to vote; otherwise such persons cannot vote . . . . While it is the law that one must have his name on a list of qualified voters in order to entitle him to vote, manifestly, if the name of such a person appears on the list illegally or fraudulently, it would be the same as if the name did not appear on the list." In Briscoe v. Between Consolidated School District, 171 Ga. 8~0 (~b), the Supreme Court by a unanimous opinion held:
"The list of registered voters furnished by the tax collector to the managers of the election absolutely controls the managers, and they have no power or authority to allow anyone to vote whose name is not on the list, or to refuse anyone the right to vote whose name is on the list, even though there may have been irregularities in the entering of their name thereon. All persons whose names appear on the registered list furnished to the election managers by the tax collector should be allowed to deposit their ballot according to law."

74
In the case of Fairburn School District v. McClaren, 166 Ga. 867, it was held that in an election upon the question of issuing bonds for building and equipping a school house in a school district, the registration list of voters, as furnished by the tax collector to the election managers shows the persons entitled to vote. This decision was also by a full bench. Justice Atkinson in the opinion 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." I think that the decision cited above fully answers the questions presented by Mr. Nichols' letter.
EDUCATION-Refinancing of indebtedness incurred in connection with public schools
October 24, 1935 Dr. M. D. Collins State Superintendent of Schools My dear Dr. Collins:
This will acknowledge your letter of October 21st to which is attached Circular No. 20 of the Reconstruction Finance Corporation which contains information relating to the refinancing of indebtedness incurred in connection with public schools.
You state that you desire my opinion as to the procedure to be followed if school districts in Georgia may issue bonds to retire outstanding bond issues.
Bonds of school districts now outstanding have been issued, validated and sold in conformity to the Constitution of the State, and statutes enacted in pursuance to such constitutional provision.
A school district is a "political division" of this State within the meaning, restriction and requirements of Section 2-5501 and Section 2-5502 of the Code of 1933. There is no statute authorizing a school district to issue refunding bonds and therefore it is not necessary to comment on the various requirements and details referred to in Circular No. 20.
Article 7 of the Constitution deals with finances, taxes and public debt and it is provided by Article 7, Section 7, Paragraph 2 (Section 2-5502 of the Code of 1933) as follows:
"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 debt, within thirty years from the date of the incurring of said indebtedness." It is only when this requirement is fulfilled that the debt referred to in Section 2-5501 is incurred.

J. ALTON HOSCH
75
The constitutional provisions as to "incurring debt" are not selfexecuting. The legislature has provided the manner and methods of holding elections; the necessary notices to be given of such election; for a judgment of validation following the election, and the necessary notices leading up to the judgment of validation. All these are steps preliminary to the right to incur the debt. When the judgment of validation is entered this is conclusive that the political division has complied with the requirements of law and has a right to incur the debt. When the provision for the assessment and collection of the annual tax is made, the debt is incurred within the meaning of the law. Woodall v. Town of Adel, 1fl2 Ga. 301.
"No plan or scheme for raising the necessary revenue can lawfully be substituted for the assessment and collection of such tax." Wilkins v. City of Waynesboro, 116 Ga. 359. The constitutional scheme for incurring the debt is very clear and the requirements as to its payment are equally clear. It is my opinion that no assessment or levy may be made for the payment of a debt, or bonds and interest thereon other than that which is levied before the bonds are sold as required by Section fl550fl. The levy of any additional tax for that purpose would, in my opinion, be incurring a new debt, which is forbidden by the Constitution. I have hitherto advised you, and consider it unnecessary to give further citations, that school districts have no authority to borrow any money except for the purpose of paying teachers and that not in excess of the amount that may be collected from local taxation in the current year. It is provided by law that a school district that levies a local tax for school purposes or a district which is located in a county levying a local tax for school purposes may issue bonds for the purpose of building and equipping a school house or school houses for the district. When the bonds are issued and sold, the proceeds shall be turned over to the board of trustees in trust for the purpose of purchasing sites and erecting a school building or buildings or purchasing buildings already erected which the trustees may deem suitable. For the purpose of paying the principal and interest of the bonds, the board of trustees shall recommend that the board of county commissioners or 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 the bonds and for paying the principal thereof and the interest thereon.
Section 3fl-1401 to Section 32-1408 of the Code of 1933 sets forth fully the above provisions of law.
There is no provision made by law or otherwise for a local school district to issue refunding bonds or to vote bonds for refunding purposes. The law of this State makes ample provision for the payment of bonds by local school districts during the term for which the bonds were issued sufficient to retire them within the time limit prescribed.

76
If the bonds are not retired within the time limit fixed by the terms of the issue, then the school districts are, in my opinion, without authority to issue refunding bonds for the purpose of retiring the then outstanding indebtedness, either with or without a vote of the people of the district.
As above stated, bonds may be issued by a school district for one purpose and for one purpose only, that is, for purchasing sites, erecting and equipping school houses, or purchasing buildings already erected.
In view of what is said above, I am of the opinion that school districts in Georgia are without lawful authority to issue refunding bonds for the purpose of refinancing outstanding indebtedness.

EDUCATION-Where child of school age lives in a house built on dividing line between an independent school system and county school system, child shall attend which

October 26, 1935

Hon. M. D. Collins

State School Superintendent

Dear Dr. Collins:

I have yours of the 25th inst. asking my opinion on the following

question:

,

"Wherever children of school age live in a house that is built on

the dividing line between an independent school system and the

county school system, in which system are the children entitled to

the free public schools?"

In order to answer your letter, it must first be determined whether

the residence of the parents of the school children is within the

boundaries of the independent school district or outside of same. If

the parents are held to reside in the independent school district, the

children are entitled to attend the schools of the independent school

district free from any charges for tuition, etc. If the parents reside

without the boundaries of. the independent school district, and de-

sire to send their children to the schools in the independent school

district, the authorities of the independent school district have the

power to charge reasonable fees for their attendance.

The whole matter involves a pure question of fact which I cannot

determine. You might have an investigation made to determine

whether the parents occupy rooms in the house which are within

the boundaries of the independent school district, or whether the

rooms in the house occupied by them are within the boundaries of the

county school system.

77
EDUCATION-What funds may be used for erection of school buildings
November 15, 1935
Hon, M.D. Collins State School Superintendent Dear Dr. Collins:
I have yours of the 5th instant requesting an opinion as to whether or not county boards of education may use any surplus funds on hand for the construction of or additions to school buildings.
It has been held by our Supreme Court: "When, out of a fund raised by taxation for a specific purpose,
all demands and indebtedness properly chargeable against that particular fund have been paid, or deducted, and there remains a surplus from such funds in the hands of the treasurer, the same then becomes a general fund which may be lawfully applied to the payment of balances due or warrants drawn against specific funds not sufficient for their payment, or to any other legitimate liability against the county." . Butts County v. Jackson Banking Co., 176 Ga. 719. See also Avera v. Clyatt, 152 Ga. 280; Spain v. Hall County, 175 Ga. 600. Under these decisions, I am of the opinion that where the county boards of education have a surplus of funds raised by taxation for a specific purpose, and there is not outstanding indebtedness of the county board of education, for the purpose of which the funds were raised by taxation to retire, the county board of education have the power to, acting under the authority of Section 32-909 of the Code of 1933,
"Build, repair, or rent school houses ... and make all arrangements necessary to the efficient operation of the schools."

EDUCATION-State Board of Education without authority to reopen a case already decided by it

November 15, 1935

Hon. M.D. Collins

State School Superintendent

Dear Dr. Collins:

I have yours of the 14th instant requesting an opinion as to whether

or not the law authorizes the State Board of Education to reopen a

case which has already been decided by them.

,

In reply, I refer you to Section 32-405 of the Code of Georgia of

1933, which deals with the powers of the State Board of Education

and provides in part:

"The Board shall . . . . also act as a court to which appeals

shall be made from decisions of the Superintendent upon any

question of construction or administration of the school laws, and

decisions of the Board shall be final and conclusive."

78
Under this section, when the State Board of Education has reached a decision, concurred in by a majority of the whole board, there is no legal authority vested in the State Board of Education to reopen a case for further consideration.
EDUCATION-Children may enter school, when
November 16, 1935 Hon. M.D. Collins State School Superintendent Dear Mr. Collins:
I have yours of the 8th instant requesting an opinion as to whether or not county or local school authorities have the right to exclude children of school age who fail to enter school at the beginning of the school term from attending the public schools of this State. For example, a child seven years of age applies for admission October 1st, the school term having begun officially September 1st.
Article 8, Section 1, Paragraph 1 of the Constitution provides in part:
"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." This Article of the Constitution confers upon all children of school age the right to receive instruction "in the elementary branches of an~English education," free of charge. The word "free" as used in this Article of the Constitution, I think, should be construed not in a restricted sense, but in a broad and liberal manner. I think that its meaning is not limited to a financial sense, but conveys the idea of accessibility without undue or unreasonable restraint or regulation. Our courts have repeatedly held that county boards of education or local school district trustees cannot assess a fee or impose any charge as a condition precedent to admission to the schools of the district of the residence of a child or his parents. Section 32-912 of the Code vests "the county superintendent of schools or county board of education" with the power and authority to "make rules to govern the county schools of their respective counties." Section 32-1113 vests the Board of Trustees in those districts which levy local taxes for educational purposes, with the power and authority to "make all rules and regulations to govern the schools of the districts." Notwithstanding this grant of authority, which would include the right to fix the date for the opening and closing of the schools of the district, and other rules and regulations with reference thereto, such power and authority must be exercised in a reasonable manner. Under this authority, any rule or regulation which is unreasonable, or which operates or is enforced in such manner as to destroy the freedom of access to the public schools of the State, is null and void.

79
It is easily conceived that the article of the Constitution above quoted may be violated by the county boards of education and local district school trustees by the promulgation and enforcement of unreasonable and arbitrary rules and regulations relative to the time when a child shall enter school, and a child thus deprived of his right to instruction in the elementary branches of an English education, as much so as if such authorities were permitted to assess a fee or charge as a condition of admission.
It is significant that in the enumeration of school children as provided for by Section 32-1601 of the Code, the ages of six and eighteen are used. It is further significant that the public school funds of the State are disbursed to the counties and school districts upon a basis "of the aggregate of children between six and eighteen years of age, inclusive, in each county." The ages mentioned in these sections may therefore be taken as the legal school ages of children, and the law and the Constitution confers upon all children of such ages residing in this State the right to be taught the elementary branches of an English education. Any rule promulgated by any county board of education or local tax school district trustees, or board of local trustees, which, by its enforcement, tends to hinder or deprive the child of this right, cannot be sustained. All rules and regulations adopted by the school authorities should be adapted to the promotion and acceptation of the paramount object of the law, as expressed in the Constitution, that every child of school age should have at reasonable times access, free of charge, to the public schools of the State for instruction in the elementary branches of an English education.
It appears that our appellate courts have never dealt with the precise question asked in your letter. However, I find that the appellate courts of Illinois, in Board of Education v. John S. Bolton, 85 Illinois Appellate Court Reports 92, held that a rule of the Board of Education of Moline of only permitting the entry of pupils arriving at school age during the first month of the fall and spring terms commencing on or about September 1st and April 1st, invalid and unreasonable. The court said:
"We are of the opinion that the rule which caused appellee's child, who arrived at school age only thirty-one days after the fall term commenced, to lose the benefits of the free school, not only during the months of that term, but also during the whole of the following winter term, was not a reasonable one or calculated to promote the object of the law." It has been held, on the contrary, that a school committee regulation that a child under the age of seven years shall not attend school unless they enter at the beginning of the fall term or within four weeks thereafter, or unless they are qualified to enter classes existing at the time of their entry, is a reasonable regulation, under a statute allowing, but not compelling, children under seven years to attend school. Alvord v. Residents of Town of Chester, 61 N. E. 362. These decisions are only presumptive and not controlling.

80
EDUCATION-Member county board of education not disqualified to serve as district trustee
October 21, 1935
Hon. M. D. Collins State School Superintendent Dear Dr. Collins:
I have yours of the 12th instant requesting an opinion as to whether or not a member of the county board of education may .also serve as a district trustee.
In reply, I beg to advise that I am of the opinion that there is nothing in the laws prohibiting a member of a county board of education from serving as a district trustee, especially where there is no conflict in the duties of the two offices. There is a prohibition in the law against a person holding two county offices at one and the same time. (Section 89-103 of the Code of 1933). However, this statute is not violated by a person holding membership upon the county board of education and also serving as district trustee, as only the former is a county office. See Culbreath v. Canady, 168 Ga. 444.
EDUCATION-Trustees of school districts not authorized to continue to serve after their commissions expire
February 8, 1936
Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of the sixth instant requesting an opinion as to whether or not the law authorizes trustees of school districts to continue to serve after their commissions expire, until their successors are elected and qualified.
In the case of Edmondson v. Holt, 176 Ga. 907, a petition for mandamus was brought against the County Board of Education of Putnam County to require said Board to call an election to fill vacancies existing in the offices whjch had been held by L. A. Park and W. B. Black, the petition alleging that the terms of office of these two trustees had expired by operation of law in May, 1930. It was insisted by the respondents that the terms of Park and Black, as trustees of the Fairview School District, had not expired and that they were still officers holdin~ over under the laws of Georgia. Mr. Justice Hill said: "This is the main question to be decided in this case," and held:
"Under the Act of 1919, the decisions of this court which hold in effect that a person elected to office, and who is duly installed in that office, shall hold it until his successor is elected and qualified, do not apply in a case like the present, where specific demand is made for the calling of an election to fill a vacancy which exists by operation of law, and where those who have the authority to call such election refuse to do so."

81
This decision apparently holds that the terms of school district trustees expire by operation of law at the end of three years, and they have no authority to hold over until their successors are elected and qualified. However, I am of the opinion that if the County Board of Education fails to call the election in the manner required by law to fill vacancies in the office of trustees whose terms had expired, such trustees could continue to act as de facto trustees and their acts would be valid as against any collateral attack. See Stephens v. School Dist. No. 3, Habersham County, 154 Ga. 275; Jennings v. New Bronwood School District, 156 Ga. 15.
EDUCATION-County authorities authorized to purchase county school bonds as investment for sinking funds
March 11, 1936 Hon. 1\f. D. Collins State Superintendent of Schools Dear Dr. Collins:
I am writing you in reply to your letter of March 4, with which you enclosed communication of the county superintendent of schools of Dooly County.
As I understand the matter, Dooly County has certain outstanding bonds to which the proceeds of the discount on the sale of its highway refunding certificates must be applied. There are also other outstanding bonds, issued by the county board of education of Dooly County pursuant to law, to build and equip school houses. You desire to know whether the proceeds of the highway certificates, which become a sinking fund to retire the outstanding bonded indebtedness of the county, may be invested in such bonds issued by the county board of education.
Assuming that the bonds issued by the county board of education are in every respect valid (and I do not undertake to pass upon that question) in my opinion they are outstanding bonds of the county within the meaning of Section 87-706 of the Code of 1933, and therefore a proper investment for the sinking fund of the county maintained for the purpose of paying the principal and interest and other county bonds. The investment of this sinking fund in such bonds issued by the county board of education will not, however, operate to retire those bonds, nor dispense with the necessity of providing and maintaining the sinking fund required to pay the principal and interest of those bonds.
I am of the opinion that when bonds are validly issued by the county board of education under the authority of the Constitution and laws, and are payable, both as to principal and interest, by a tax levied on the county as a whole, they are bonds of the county within the meaning of Section 87-706. The fact that there may be an independent school district within the county over which a tax for the payment of the principal and interest of such bonds may not be levied, does not in my opinion, operate to change the nature and character of the obligation as one of the county as a whole.

8~
EDUCATION-State Superintendent of Schools must issue commission to person certified by clerk as being elected by grand jury as member of county board of education; contest for office must be by quo warranto
March 23, 1936
Hon. M.D. Collins State Superintendent of Schools
Dear Dr. Collins: I am answering your letter of the 18th requesting advice as to the
duty of the Superintendent of Schools whenever evidence is submitted that a person elected by the grand jury and certified by the Clerk of the Superior Court, is not favorable to the common school system and/or does not have a fair knowledge of the elementary branches of an English education.
Section 32-902 of the Code vests in the grand juries of the various counties the authority to select the members of the county boards of education. Section 32-903 prescribes the qualifications necessary for membership on the county board, among them being, "good moral character" and "a fair knowledge of the elementary branches of an English education and . . . . favorable to the common school system."
Grand jurors are public officers, and the law presumes that all public officers perform their duties. Therefore, there is a presumption that persons selected by the grand jury as members of the county board possess the qualifications required by the statute. Section 32-905 provides in part that
"Whenever members of a county board are elected or appointed, it shall be the duty of the Clerk of the Superior Court to forward to the State Superintendent of Schools a certified statement of the facts, under the seal of the court, as evidence upon which to issue commissions." No power is given the State Superintendent of Schools to review the selections made by the grand juries of members of county boards of education, and when the State Superintendent of Schools receives a certified statement of the facts under the seal of the court from the Clerk of the Superior Court as to the election or appointment of a member of a county board of education, he is unauthorized to go behind this certificate and receive any evidence as to the disqualifications of the member selected by the grand jury, or to set aside the appointment. The commission should be issued, and if any one desires to question the right of the person to hold the office, the proper procedure would be by quo warranto.

83
EDUCATION-Consolidation of bonded and nonbonded districts, election of trustees, etc.
June 22, 1936
Dr. 1\'L D. Collins State Superintendent of Schools
Dear Dr. Collins: I have yours of the 22nd inst. inclosing letter of Hon. W. M.
Rainey, Superintendent of the DeKalb County schools, which states the following problem:
".;1 and B are bonded school districts. C is nonbonded district lying between .;1 and B. A part of District C wishes to merge with District A. The other part would prefer merging with District B.
"(1) Is it possible, under the Georgia law, to merge by vote of the people a part of C with each of these Districts?
"(2) If the District is divided, and each names a Board of Trustees, that part of the District C which wishes to merge with District B, since this is only about six land lots, does not satisfy the Georgia code as to requirements for the size of a school District, would this not be invalid if such division should be determined by the County Board of Education?" In answer to question one, I refer you to the Act amending Paragraph I, Section IV, Article VIII of the Constitution (Ga. Laws 1931, page 103; Section 2-6901, Code of 1933). Under this amendment to the Constitution, authority is given to "two or more local school districts" to consolidate and assume any bonded indebtedness which may be outstanding in the districts affected. No authority is given for a "merger" of a part of a school district with a bonded school district, whereby the part so merged might be required to assume its pro rata share of the bonded indebtedness. In other words, this amendment to the Constitution authorizes and contemplates only a consolidation between entire districts, not parts of districts. It is therefore impossible, under the Constitution and laws, to merge by a vote of the people a part of District C with Districts .;1 and B in such a manner as to subject persons residing in District C to any liability for any outstanding bonded indebtedness in Districts .;1 or B. In answer to question two, I beg to advise that Section 32-1101 of the Code which provides that school districts laid off by the county board of education "shall contain an area of not less than sixteen square miles," also provides that "the board of education may have the right to establish districts with areas less than sixteen square miles . . . . where there are local conditions that make it necessary to do so . . . . Local conditions which will permit the creation of smaller districts must be determined by the Board of Education." This section vests the county board of education with the authority to create districts of areas less than sixteen square miles. The action of the county board of education in creating a district of an area less than sixteen square miles would not be set aside by the courts, or declared invalid, unless it is shown that in creating such a

84
district of lesser proportions than the law provides, the board of education abused its discretion.
In view of what is said in answer to question one, the answer to question three is "No." As pointed out above, there is no authority under the Constitution by which portions of a school district could vote upon the question of consolidation or merger with a bonded school district, so as to legally subject the territory in that portion of the nonbonded district to taxation for the purpose of retiring the bonds.
EDUCATION-County board of education has authority to employ teachers in public schools of the county
June 24, 1936 Hon. M.D. Collins State Superintendent of Schools Dear Dr. Collins:
As a matter of law, the county board of education has the authority to employ teachers in the public schools of the county. See Sec. 32-913. This section has been construed to mean that the right and power of county board of education to employ the teachers in schools under their jurisdiction is exclusive. See Orr v. Riley, 160 Ga. 480; Green v. Snellville Consolidated School District, 169 Ga. 667; Hill v. Connor, 182 S. E. 911; Jones v. Ellis, 185 S. E. 510.
I am therefore of the opinion that under the statute above cited, as construed by the Supreme Court, any matter which might arise as to the employment of teachers in the public schools of a county addresses itself exclusively to the county board of education, and their determination of the matter is final and is not subject to appeal under the provisions of Sec. 32-910 of the Code which provides in part that "any matter of local controversy in reference to the construction or administration of the school law" may be appealed to the State Superintendent of Schools and to the State Board of Education.
EDUCATION-Which grand jury has authority to select members of county board of education
August 11, 1936 Hon. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
This will acknowledge yours of the fourth instant requesting an opinion as to which grand jury-the one preceding the expiration date of commissions, or the one following the expiration date of commissions-should elect members of the county board of education for the regular four-year term under the provisions of Section 32-902 of the Code.

85
The law is silent as to which grand jury should make the selection of members of the county board of education. However, I understand that it is an almost unbroken custom in the various counties of the State for the grand jury next preceding the expiration of a term of a member of the county board of education to elect a successor.
While it is not directly in point, the provisions of Section 25-502 of the Code relative to the commissioning by the Governor of notaries public and ex officio justices of the peace selected by the grand jury in a manner similar to the selection of county board members by the grand jury are at least persuasive and indicate the policy of the law with reference to such matters. This section provides:
"The Governor shall not issue a commission to any notary public and ex officio justice of the peace, unless it shall appear from the order of appointment that such appointment was made at the term of the court next preceding the vacancy, or at some succeeding term after such vacancy has occurred." Under the provisions of Section 32-905 of the Code, it is made the duty of the judges of the superior courts to fill vacancies, by appointment, in the county board of education until the next session of the grand juries, when said vacancies shall be filled by the selection of the grand jury. Therefore, as a practical matter, the grand jury next preceding the expiration of a member's term should select his successor, for otherwise it would become the duty of the judge of the superior court to make the selection caused by a vacancy on the board due to the expiration of a member's term.
EDUCATION-State Superintendent of Schools without jurisdiction in matters not relating to construction or administration of the school law
November 27, 1936
Hon. M. D. Collins State Superintendent of Schools Dear Dr. Collins:
I have yours of the 24th instant inclosing an appeal of Mr. A. S. Hardy from the ruling of the Clarke County Board of Education, and requesting an opinion as to whether the State Superintendent of Schools and the State Board of Education have jurisdiction in this matter.
It appears from the petition that Mr. Hardy, the petitioner, is a resident of Jackson County, Georgia. The petition is based upon the provision of Section 92-938 of the Code relating to county line schools. It is alleged in the petition that Mr. Hardy has been sending his children to the "Laboratory School" operated by the School of Education of the University of Georgia, located at the Co-Ordinate College in Athens, Georgia, this being the most accessible public school to petitioner's residence, due to the fact that Clarke County operates a school bus which comes within one-half mile of his resi-

86
dence, and the nearest school bus operated by Jackson County comes only within a distance of about five miles from his home. The petition further alleges that the Board of Education of Clarke County is seeking to require him to pay tuition as a prerequisite of his children attending the Laboratory School, and he prays that the County Board of Education of Clarke County pass a resolution or order authorizing the Superintendent of Schools of Clarke County to contract with the University authorities to teach his children upon the same terms and conditions that the Clarke County school children are taught, and to make demand upon the County Board of Education of Jackson County to pay over to the Clarke County Board such school funds as petitioner's children are entitled to receive, and for other relief.
The authority of the State Superintendent of Schools to hear an appeal from any county board of education is based upon Section 32-910 of the Code, which 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."
Considering the petition attached to the appeal in the light of this Code Section, it appears that Mr. Hardy, the petitioner, is a resident of Jackson County, and that the alleged controversy in this case is between petitioner and the County Board of Jackson County, rather than the County Board of Clarke County. This being true, the County Board of Education of Clarke County properly denied and refused to entertain the petition on the ground stated in their order as follows:
"This matter is outside of the jurisdiction of this Board, and therefore they cannot do anything about it . . . . This is a matter to be worked out between your client and the Jackson County Board of Education, and this Board respectfully submits that your petition rightfully should be presented to that Board for consideration and adjustment,"
for, insofar as the Clarke County Board of Education is concerned, the petition did not state "any matter of local controversy in reference to the construction or administration of the school law" as applied to Clarke County, but rather involved a matter of local controversy in reference to the construction or administration of the school law as applied to Jackson County. Therefore, I am of the opinion that since the County Board of Education of Clarke County

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had no jurisdiction of the matter, you, in turn, as State Superintendent of Schools, can entertain no jurisdiction in the matter in controversy.
I am returning you herewith the file in this matter.
EDUCATION-No person can at the same time hold office both as a member of the county board of education and also as a member of the board of county commissioners
December 5, 1936 Dr. M. D. Collins State Superintendent of Schools My dear Dr. Collins:
Yours of the third instant referring to a letter from Hon. W. E. Knox, County Superintendent of Schools at Gray, Georgia, in which he asked the following question:
"Can a man who is a member of the Jones County Board of Education, who was elected a member of the Board of County Commissioners on November 3, last, who will assume his official responsibilities as a member of the Board of County Commissioners on January 1, next, still retain membership on the County Board of Education?" has been received. A member of a county board of education is a county officer. See Stanford v. Lynch, 147 Ga. 518, Cooper v. State, 101 Ga. 783, and Coleman v. Glenn, 103 Ga. 458. A member of the board of county commissioners is also a county officer. See Malone v. Minchew, 170 Ga. 687 (2), and Sweat v. Barnhill, 171 Ga. 294 (9). Section 89-103 of the Code of 1933 provides:
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by special enactment." I am therefore of the opinion that no person can at the same time hold office both as a member of the county board of education and also a member of the board of county commissioners.
EDUCATION-County board of education may employ and pay county farm agent and county board of commissioners may levy a tax for such purpose
December 7, 1936 Hon. M. D. Collins State Superintendent of Schools My dear Dr. Collins:
Yours of the fourth instant stating that Hon. V. D. Whatley, County Superintendent of Schools of Carroll County, has asked the following question:

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"Is it legal for the Board of Commissioners of Roads and Revenues to pay the salary of the county farm agent, in full or in part?" has been received.
Section 32-944 of the Code provides: "Power is hereby conferred upon the county tax levying authori-
ties of the several counties, as well as the county boards of education, to carry on educational work for the promotion of the extension work in agriculture and home economics under the provisions of Act of Congress, approved May 8, 1914 (Barnes' Federal Code, Sections 8413, 8414, 1518, U. S. C. A. Title 7, Agriculture, Sections 341 to 348), and resolution of the General Assembly, under date of August 14, 1914, giving assent of the State to said Act of Congress, by employing county agricultural agents and home demonstration agents and supervising their work, and paying therefor. The board of education of the several counties may employ and pay county agents and home demonstration agents to carry on said extension work." The particular question asked by you does not appear to have been dealt with by either of our appellate courts. However, I am of the opinion that under a proper construction of the foregoing Section the county board of education should employ and pay the county agents, rather than the board of commissioners of roads and revenues. The board of commissioners of roads and revenues have the authority to levy a tax for these purposes under the general authority conferred upon them in the Constitution to levy taxes for "educational purposes." See Brown v. Martin, 162 Ga. 172; Almand v. Board of Education of Laurens County, 161 Ga. 911.
FORESTRY-State Department of Forestry may acquire lands only for forestry purposes and is not authorized to accept a conditional conveyance to any property
May 25, 1935
Hon. B. M. Lufburrow State Forester Dear Mr. Lufburrow:
I am returning herewith to you the deed from the City of Albany to the State of Georgia to a described tract of land in Dougherty County.
This deed contains a condition providing for the reversion of the estate granted to the grantor in the event the property conveyed should cease to be used and maintained by the State or the United States for public parks, playgrounds, recreational and/or athletic purposes.
The law creating the State Department of Forestry authorizes it to acquire lands only for forestry purposes. It is not authorized to acquire lands for playgrounds, public parks, recreational or athletic purposes.

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I know of no provision of law whereby the State may accept a grant of land for such purposes; nor do I know of any provision of law whereby the State may accept a conditional conveyance to any property.
FORESTRY-Neither State nor lessee of a swimming pool located in a State park required by law to keep a lifeguard at such swimming pool
August 28, 1935 Hon. B. M. Lufburrow State Forester Dear Mr. Lufburrow:
I have yours of the twenty-seventh instant stating that the Forest Service is leasing as a concession the swimming pools at various State parks, and requesting an opinion as to whether it is mandatory upon those in charge of such swimming pools to furnish or maintain a life guard with life saving certificate at such pools and whether such a responsibility would fall upon the State or upon the lessee.
In reply, I beg to advise that there is no statute in our State requiring the owner or lessee of a swimming pool, used by the public, to maintain or furnish life guards. Sections 26-7302, 26-7303 and 26-7304 of the Code of Georgia of 1933 impose upon the proprietors or keepers of hotels, boarding houses or other public houses or bath houses on the sea coast where the public may resort for the purposes of surf bathing the duty to keep and maintain life guards, life preservers, life boats, etc., making the failure to do so a misdemeanor and making the omission to keep and maintain such equipment a forfeiture of the right of the hotel keeper, etc., to collect any charge or debt from any guest, where such charge or debt was contracted during the surf bathing season. This Act (Ga. Laws 1905, p. 115), applies only to hotels, etc., and to bathing in the surf on the seacoast.
I do not think that either the State or the lessee of a swimming pool located in one of the State Parks is required by law to furnish, keep or maintain a life guard with a life saving certificate at such swimming pool.
FORESTRY-Acquisition of land by State for forestry purposes
June 9, 1936 Hon. Elmer Dyal State Forester Dear Mr. Dyal:
You have submitted to me a deed executed by Pfister & Vogel Land Company to the State of Georgia, dated November 29th, 1933, and purporting to convey ninety-one acres of land, more or less, in District 16, Section 1 of Union County, Georgia, and recorded in

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the office of the Clerk of the Superior Court of Union County, Georgia, in Deed Book 2, Pages 325-326, September 5, 1934.
I understand that you wish my opinion as to whether this deed conforms to the provisions of the statute (Ga. Laws 1925, p. 199) authorizing the State to acquire forest lands by purchase or gift to be held and administered by the State Board of Forestry as State Forests.
With the exception that the name of the corporation, as signed to the deed, appears to have been misspelled as compared with the name of the corporation as given in the body of the deed and as set out on the impression of the corporate seal, the deed appears to be properly executed and attested.
Further it would appear that the tract of land which the deed purports to convey is sufficiently described in the deed to meet the requirements of the statute in such cases made and provided, and it appears that the deed has been properly recorded. In other respects, however, I am of the opinion that the deed does not meet the requirements of the statute.
Following the description of the land which the deed purports to convey, appears the following recital:
"This deed of conveyance is made to said party of the second part-The State of Georgia, under the provisions of an Act of the General Assembly of Georgia, Acts 1925, pg. 199, and the same is intended as a donation or gift to said State of Georgia to be administered as provided by the provisions of said Act." The recitals of the deed so far appear to be in line with the provisions of the statute, but immediately following the paragraph above quoted the following condition, restriction or forfeiture clause appears, to wit:
"However, this land is donated and conveyed to the party of the second part to be used for a lake site and the same is to be developed for that purpose, and it is understood and agreed that if for any reason the same is not used for this purpose and developed as such, then the title to the same will and does revert to the party of the first part, its successors or assigns, and this deed to be no cloud on the title of the party of the first part. It is contemplated that an immediate use of this property for the purpose for which it is donated and given will be made and if this is not done within a reasonable time, then this title will and does revert to the party of the first part, its successors and assigns." The last clause in the habendum and tenendum clause of the deed are the words following, to wit:
"Subject only to the condition hereinabove stated." Section 5 of the Forestry Act (Ga. Laws 1925, p. 199) is as follows:
"Be it further enacted by the authority aforesaid, that the Governor is authorized, upon the recommendation of said Board, to acquire forest land by purchase approved by an Act of the Legislature, or to accept gifts of land to the State, the same to be held and administered by the State Board of Forestry as State

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forests and to be used to demonstrate the practical utility of timber culture. Such gifts must be absolute, except the mineral and mining rights over and under said lands (no reservation of any timber in connection therewith) may be reserved and except for a stipulation that they be held and administered as State forests."
Clearly the deed in question is not executed according to the requirements of the statute pertaining to State forests. In form the deed provides for a forfeiture and imposes limitations and conditions which the statute forbids, or at least does not permit. Further it seems clear that the purpose for which the tract of land which the deed purports to convey is to be used under the terms thereof is not in line with the scheme of the Act providing for State forests or the purposes for which State forests may be acquired, either by purchase or gift.
The dominant idea of the Forestry Act of 1925 (Ga. Laws 1925, pp. 199-204) contemplates that the functions and activities of the State Forester and the State Board of Forestry shall be devoted to timber protection, timber cultivation, timber propagation, and a study of timber uses from a commercial standpoint.
By Section 3 of the Act it is provided that the Board shall inquire into and make annual reports upon forest conditions in Georgia with reference to preservation of forests and the effect of destruction of forests upon the general welfare of the State, and all other matters pertaining to the subject of forestry and tree growth, including recommendations to the public generally as to reforestation and approve methods of lumbering and turpentining. It is further provided in this Section that the Board shall give such advice, aid and assistance and cooperation as may be practical to Georgia land owners or forest users and promote, so far as it may be able, a proper appreciation in this State among all classes of the benefits to be derived from forest cultivation and preservation.
It is further provided in this Section that the Board shall take such action as may be reasonable and profitable to prevent and suppress forest fires and to enforce any and all forest fire laws, and may with the approval of the Governor, apply such parts of the forestry fund as may be necessary to such purposes and to provide for such fire control as it may establish, either independently or in cooperation with the Federal Government.
Section 5, hereinabove quoted, authorizes the acquisition of tracts of land, either by purchase upon the recommendation of the Board and upon approval by the General Assembly, and also the acquisition of tracts of land by gift to the State, but the lands so acquired it would appear are to be used to demonstrate the practical utility of timber cultivation and that the State forests referred to in the Act are intended to have that character and significance.
By Section 6 it is provided that it shall be the policy of the State to encourage reforestation of cut over lands and timber cultivation generally on all lands not better suited for farming and other purposes.

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Sections 7 and 8 provide for the enforcement of the Act, which taken as a whole, as above stated, relates to and deals with timber protection, timber cultivation and commercial uses to which timber may be put. Nothing in the Act indicates that land may be acquired by the State or administered by the Board as a lake site or solely or predominantly for recreational purposes. I refer to recreational purposes for the reason that I am informed that the land described in the deed in question is being developed mainly as a recreational park.
In addition, it is my opinion that the use of the State's funds by the State Forester or other persons in the development of these lands for recreational purposes, if such be the case, is without legislative authority.
For the reasons stated, I cannot approve the deed submitted even as to form and substance as a compliance with the provisions of the statute.
I have had no abstract of title and do not at this time undertake to say whether or not in my opinion the title to the tract of land in question to the purported grantor is good and marketable.

GAME AND FISH-Rights of lessee of oyster bottoms

Hon. Zack D. Cravey Commissioner of Game and Fish

February 12, 1935

Dear Mr. Cravey: This will acknowledge your request for an opinion upon the follow-
ing questions: (1) May a lessee of State-owned oyster beds assign, mortgage,
give a deed to secure debt on, or otherwise hypothecate his leasehold estate?
(2) Assuming that the answer to question 1 is in the affirmative, may a production credit association purchase the leasehold estate, even for a limited time, at a sale thereof had for the purpose of paying the debt?
(3) Assuming that the answer to question 1 is in the affirmative, do the limitations upon acreage leased by one person apply to an association taking assignments and/or other security upon such a leasehold estate or purchasing the same at a sale thereof had for the purpose of paying the debt?
(4) May the Commissioner of Game and Fish waive the statutory cancellation of leases for failure to properly mark off the same or to plant a sufficient number of bushels of seed or shell oysters?
(5) Do all leases of oyster beds executed pursuant to the 1924 Act set forth the amount of seed or shell oysters required to be planted and the time within which same are required to be planted?
In the answer to the first question, we find this provision in the Act approved September 19, 1889, relative to the transfer or assignment of oyster leases:

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"Provided, further, that said lessee shall have no authority to sub-let or to assign his lease until after the expiration of five days from the date of entry thereunder." (See Section 8, Georgia Laws 1889, p. 146) We also find this provision in Section 11 of the same Act:
"That all leases under the provisions of this Act, and all transfers thereof, shall be recorded by the person or persons to whom such leases or transfers are made, in the office of the clerk of the superior court, in like manner as deeds of real estate are required to be recorded, in a separate book to be kept for that purpose, but no lessee of tracts larger than five acres shall be authorized to sublet or assign his lease, or any portion of the territory conveyed thereby, until he shall have reduced to cultivation at least one-tenth of the territory leased by h L. m. " These provisions in the Act of 1889 appear to have been the only restrictions upon the right of a lessee of oyster bottoms to assign his lease. By an Act approved August 8, 1924, (Ga. Laws 1924, pp. 101-117 inclusive), the General Assembly of Georgia passed an Act, the caption of which indicates that said Act was to be an exhaustive revision of all the laws regulating the supervision and protection of game and fish, including shell fish, oysters, etc., and it is my opinion that this Act supersedes all prior legislation on the subject, amending or repealing those previous acts which are in conflict with it. The caption of the Act of 1924 begins:
"An Act to revise and amend the game and fish laws of the State of Georgia." Section 38 repeals all laws in conflict with the provisions of this Act. Therefore, it is my opinion, that since the restrictions, as above referred to, in the Act of 1889 relative to the transfer or assignment of oyster leases were repealed by the Act of 1924, such leases may now be assigned, mortgaged, or transferred. The Supreme Court in the case of Jones v. Oemler, 110 Ga. 202, held:
"This provision of the Act of 1889, prohibiting the original lessee from subletting or assigning his lease until after the expiration of five years from the date of his entry, was expressly repealed by Section 3 of the Act of 1891, . . . . By the repeal, therefore, of the restriction upon leases embodied in the Act of 1889, it is quite manifest that the legislature intended the original lessees should have the power to sublet the property they have acquired at any time they saw proper; and this provision would necessarily apply to all transactions of this nature where the original leases, as in this case, were made after the passage of this amendatory statute."
In its opinion the court further said: "There can be no question about the general principle of law,
that the right of disposal of any interest which one has acquired is an incident annexed to all property; and this right of alienation necessarily exists, although the title may be of an inchoate nature,

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unless there is some provision in the instrument or contract creating the title that especially and specifically prohibits such alienation." This case unquestionably decides that a lessee of State owned oyster beds may assign, mortgage, give a deed to secure debt on, or otherwise hypothecate his leasehold estate. Answering the second question, it is our opinion that a production credit association may purchase such leasehold estate at a sale thereof had for the purpose of paying the debt of the sublessor, provided such production credit association is chartered under the laws of this State, (see Section 9 of the Act of 1924), and provided further, that such association at the time of such purchase did not already hold more than one thousand acres, not consisting of more than two parcels. (See Section 45-801 of the Code of Georgia of 1933). In answer to question three, it is our opinion that the limitations upon the acreage leased by one person applies to an association taking, assignments and/or other security upon such a leasehold estate, or purchasing the same at a sale thereof, had for the purpose of paying the debt, for it is provided in Section 45-801 of the Code of Georgia of 1933:
"In no event shall any person, firm, corporation or combination of persons lease or hold in excess of one thousand acres, not to consist of more than two parcels." We are of the opinion that this provision would prevent an association from becoming a holder, by any means, of more than one thousand acres of oyster bottoms, not to consist of more than two parcels. In answer to question number four, it is our opinion that the Commissioner of Game and Fish has no authority under the law to waive the statutory cancellation of leases for failure to properly mark off the same or to plant a sufficient number of bushels of seed or shell oysters. The Act of 1924 neither expressly, nor by necessary implication, gives this power to the Commissioner of Game and Fish, and Section 89-903 of the Code of Georgia of 1933 provides:
"Powers of all public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred." (See Brantley v. Huff, 62 Ga. 532; Gill v. Cox, 163 Ga. 618; Creed v. State, 43 Ga. App. 479). In answer to the fifth question, we are informed by the Commissioner of Game and Fish that all leases of oyster bottoms executed pursuant to the Act of 1924 set forth the amount of seed or shell oysters required to be planted and the time within which same are required to be planted. (See Section 45-802 of the Code of Georgia of 1933). I am returning herewith the file.

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GAl\IE AND FISH-Act providing for the use of wire baskets or seines for fishing in certain counties unconstitutional
July 18, 1935
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
I have your letter of the 17th requesting an opinion as to the con~ stitutionality of the Act of 1933 (Ga. Laws 1933, p. 149), which Act provides for the use of wire baskets and seines for fishing in certain counties in Georgia.
Section 5 of the Act of 1931 (Ga. Laws 1931, p. 169; Code of 1933, Section 45-505), makes it a misdemeanor for any person or persons to take fish from any of the fresh waters of this State by means of seines, traps, nets or similar devices, or by means of dynamite, poison, or by other means except by hook and line. It has been held by the Supreme Court that this section is a general law. See Mosely v. State, 176 Ga. 889. The operation of this law is uniform through~ out the State, as required by Article 1, Section 4, Paragraph 1 of the Constitution. Our Supreme Court has held that laws of a general nature cannot be deprived of their force in one part of the State without simultaneously depriving them of force in every other part.
"They can be killed but not mutilated; the smallest of their territorial members cannot be cut off." Mathis v. Jones, 84 Ga. 804; Futtrell v. George, 135 Ga. 265. Insofar as the Act of 1933 is a special or local law, the effect of which would be to limit or restrict the uniform operation of Section 5 of the Act of 1935, making it illegal to take fish from the waters of this State by any other means than by hook and line, said Act is in conflict with Article 1, Section 4, Paragraph 1 of the Constitution, and is therefore unconstitutional. It will be noted that the Act of 1933 was omitted from the Code of 1933, it being the opinion of the codifiers of this Code that said Act was unconstitutional.
GAME AND FISH-Act imposing a license fee on nonresidents for fishing in this State not unconstitutional
July 18, 1935
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
I have your letter of July 8th requesting my opinion as to the constitutionality of H. B. No. 107 which imposes a license fee on nonresidents for fishing in this State.
The Act provides that it shall be unlawful for any nonresident to fish in any of the streams, lakes, ponds or other waters of the State, whether salt or fresh, without first obtaining a license. The license fee is fixed at $5.50. The funds are allocated to construction and

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maintenance of fish hatcheries. The Act declares its purpose to be to conserve the natural resources of the State.
The title, and property in, the fish within the waters of the State are vested in the State of Georgia and held by it in trust for the people of the State. The Legislature, for the purpose of conserving and protecting fish, and to encourage the propogation of fish, may pass such laws with reference thereto, as iii its judgment are to the best interest of the State. It is well recognized that fish are included among the natural resources of the State.
The fact that people engage in fishing as a sport does not lessen the duty devolving upon the General Assembly to protect and preserve this part of our natural resources and in fact might be an impelling reason to further protect the same for the benefit of the people of the State.
It is evident that what the General Assembly intended was to protect the property right in the fish in the waters of the State for the benefit of the people of the State and it was within the power of the General Assembly to prescribe rules under which nonresidents of the State might acquire title to this property, the title to which is held in trust for the people of the State.
In view of the foregoing, it is my opinion that the Act in question is not in violation of the Constitution.
GAME AND FISH-What constitutes official hearing by CommissiOner
August 14, 1935
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
This will acknowledge your request for an opmwn as to your duties with respect to the hearing set for August 15, 1935, at ten a.m. in Brunswick, Georgia, under your order of August 7, 1935, it being the purpose of this hearing to determine whether the order issued by you under date of August 1, 1935, closing the inside salt waters, creeks, estuaries and sounds to the use of all nets except hand drawn nets for the months of August and September, 1935, should be revoked or should remain of force.
It does not appear that the hearing set by you for August 15, 1935, is an official hearing, as contemplated by Section 45-111 of the Code. After the promulgation of your order of August first, closing the sounds, etc., no petition signed by five or more voters of the district who are "affected by the proposed changes" in the regulations has been, as yet, filed, demanding a hearing. As I understand it, after issuing the order of August first, and after two or three letters of complaint had been received by you from certain commercial fishermen stating that the effect of the order would be to throw several hundred people employed in the shrimp canning factories out of work, as a matter of grace you decided to afford all packers and other

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parties interested a hearing upon the matter. In order for such a hearing to be official, it is my opinion that the provisions of Section 45-111 must have been complied with, and after the petition for a hearing is filed with you, as Commissioner of Game and Fish, it is your duty to designate "By advertisement for a period of thirty days at the courthouse and three other public places in the county and also by publication in a newspaper in the said county once a week for two consecutive weeks at a place at which the Commissioner shall appear and hear arguments for and against said changes." After the hearing, you are authorized either to ratify, rescind or alter the previous order.
Any hearing had without the proper advertisement as prescribed by this Section would not be official, and especially is this true where no petition for a hearing was filed. Therefore, I feel that your duties in respect to the hearing set for the 15th are purely unofficial, since the hearing is being granted by you merely as a matter of grace and not on account of any requirement of the law. If after this unofficial hearing you decide that your order of the first instant should not have been issued I think that it would be proper and within your authority to revoke or alter the same. If on the other hand, you find that there is no reason to revoke said order and you feel that the same is just and proper, I would suggest that you continue with the advertisement of said order or regulation as prescribed by Section 45-109, to wit:
"All of such regulations have to be published once a week for four consecutive weeks in some newspaper of general circulation in one of the tide water counties, shall be recorded in the records of the Commissioner and shall be of equal force and effect with the provisions of this law." Until your order of the first instant has been advertised once a week for four weeks, as above provided, it does not have the force and effect of a law, and no person would be guilty of a misdemeanor who violated the same.
GAME AND FISH-No conflict in laws requiring license for commercial deep sea fishing and peddling fresh water fish
August 29, 1935
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
This will acknowledge yours of the 28th instant referring the letter of Hon. W. S. Tyson, Solicitor of the City Court of Darien, under date of August 26th, to me for attention.
Mr. Tyson in his letter refers to a technical conflict in the law relative to the issuance of fishing licenses, and states that the Tidewater Department issues licenses for the taking of catfish for commercial purposes, said licenses extending to the waters adjacent to the Seaboard Bridge, or the county line in the Altamaha River.

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I am unable to find any authority authorizing the issuance of such a license. I surmise that the license referred to is that authorized under the provisions of Section 45-213 of the Code of Georgia of 1933 (Ga. Laws 1924, p. 117, Section 36). This license is commonly known as the salt water fishing license for commercial purposes, and authorizes the licensee to fish only in the salt waters of the State. The other license referred to in Mr. Tyson's letter is that issued under the authority of Section 45-503, which is commonly known as the fresh water fish peddler's license, which authorizes the licensee to sell fresh water fish. The distinction between the two licenses is clear: One, the salt water license, applying only to fishing in the salt waters of this state, and the other, the fresh water fish peddler's license, applying only to persons, firms and corporations selling or offering for sale fresh water fish.
Consequently, I am of the opinion that there is no conflict in the law relative to the issuance of these licenses. Therefore, should a person procure a license from the Chief Inspector of Coastal Fisheries under the authority of Section 45-213, such a license would authorize the licensee to take catfish from the salt waters of this State for commercial purposes and such fish could be sold by the licensee without obtaining a fresh water fish peddler's license as provided by Section 45-503.
On the other hand, a person taking catfish in the fresh waters of the State, in order to sell such fish legally, must first obtain the license as provided under Section 45-503. One is a license for the takint of fish in the salt waters of the State; the other a license for the sale of fresh water fish.
Trusting that this clarifies the matter, I am herewith returning the letter of Mr. Tyson.
GAME-Illegal to transport deer out of county where killed into another county in this State or out of the State unless accompanied by person actually killing such deer
October 21, 1935
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
This will acknowledge reference of the letter of Mr. H. G. Martin, requesting an opinion as to whether one may legally ship or transport a deer from Mcintosh County, Georgia, to a person living in Richmond, Virginia, who owns property in said county.
Under the provisions of Section 45-305 of the Code of 1933, it is made a misdemeanor to transport or ship or offer to transport or ship a deer without the limits of this State, except the person duly authorized to hunt may transport openly the game actually killed by him from the county in which it was killed to any county of this State or without the State, provided such person actually killing the game accompanies the game so killed.

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GAME AND FISH-Authority of game wardens to search and arrest people without a warrant
October 21, 1935
Hon. Zack D, Cravey Commissioner of Game and Fish
Dear Mr. Cravey.; This will acknowJedge receipt of the letter of Mr. Joe Bell Barbre,
District Game Protector, under date of October 16, 1935, requesting an opinion as to the authority of a game warden to search and arrest people without warrants.
Both the State and Federal Constitutions closely safeguard the rights of private citizens to pe secure in their persons, houses, papers and effects against unreasonable searches and seizures. Article 1, Section 1, Paragraph 16 of our Constitution (a part of the. Bill of Rights) provides:
''The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place, or places, to be searched, and the persons or things to be searched." As to the same provisions in the Constitution of the United States, see Article 4. Section 27-207 of the Code of Georgia of 1933, provides:
"An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." Construing this last quoted section, our Supreme Court, in the case of Pickett v. State, 99 Ga. 12, held:
"An arresting officer has no authority without a warrant, upon mere information that another is carrying a concealed weapon, to arrest the latter and search his person for the purpose of ascertaining whether or not he is in fact violating the law prohibiting carrying concealed weapons. Even if he was so doing, the offense was not, in legal contemplation, committed in the presence of the officer, and such an arrest and search are unauthorized by law and are, within the meaning of the Constitution, unreasonable."
In following this decision the Supreme Court has subsequently held that a mere suspicion that the law is being violated, or information received from others that the law has been violated in their presence, not in the presence of the arresting officer, does not authorize an officer, without a warrant, to make an arrest. Such authority, without a warrant to arrest a person, arises only where the officer himself is present when the offense is committed. See Hughes v. State, 2 Ga. App. 29; Douglas v. State, 152 Ga. 391; Paramore v. State, 161 Ga. 177; 92 A. L. R. 492n.

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l\Iaking a practical application of these rulings, I am of the opinion that where a game warden merely suspects that a person has killed game above the bag limit, he is not authorized to arrest or search such person without a warrant. X either is such warden authorized, without a warrant, to search a person where some one has told the game warden that such person has in his possession game above the bag limit killed by him in the presence of the informer. A warden would have the right to arrest a person without a warrant whom he sees kill twenty-one in one day, or whom he sees "ith a string of kill, the natural appearance of which indicates that there are more than forty killed in the string. In other words, a warden acting under such circumstances would be acting not under a mere suspicion, not upon the information of others, but upon a reasonable probability that the law has been violated in his presence.
In the exercise of such authority, your "ardens should be most cautious, keeping ever in mind the constitutional guaranties of freedom from unreasonable searches and seizures.

' GAME-Procedure for establishing game preserves

...

X ovember 16, Hl35

''<;Jion. Zack D. Cravey

Commissioner of Game and Fish

~~y dear l\Ir. Cravey:

. I have your letter of N ovembcr 13th in which you state the

1'f,ational Park Service has several parks in this State which will be

; ..t\!rned over to the State in the ncar future; that the Federal au-

: tnoritics desire that these parks be designated as State Game Pre-

serves or Sanctuaries. You desire to know the proper procedure in

tl1e matter.

:.Section 45~106 of the Code of Georgia of ID33 provides in part

that the Commissioner of Game and Fish shall be authorized

.r "To set aside or close, with the consent of the land owners,

.. J,lrcas for usc as game preserves or refuges and to prescribe the

. lime, methods, and conditions for hunting in such areas: Pro-

' '>.'

vided, that when such preserves shall be reopened for hunting <tihey shall be for the common use of all the people of the State for

hunting in compliance with the game laws."

I am of the opinion that under this provision of law you are au-

thorized, by a formal order, assented to by the owners of the land,

.to set aside any National or State Park area as a game preserve or

refuge.

. . ~ I do not understand from your letter that it is the purpose of the

, ,_ Federal Department to turn this land over to the Department of

:,:O'.i Game and Fish. I presume that the areas referred to will be placed

in the custody of the Forestry and Geological Department.

The proper procedure would be for you to issue a formal order

designating the particular area, which should be described, as a

game preserve. This order should be assented to by whatever

101
agency of the Federal Government may be in charge of it, and by the appropriate agency of the State Government. The order must conform to the language of the Code Section quoted above.
When the matter is ready to be closed, the Department of Law will be glad to prepare the necessary papers.
GAME-Licensing of nonresident fur dealer
November 22, 1935 Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
This will acknowledge your request for an opinion as to whether a nonresident who comes to this State and buys furs only from licensed resident dealers, is subject to the payment of the fee imposed by Section 23(2) of the General Tax Act of 1935, upon non~ resident dealers.
This Section provides: "A nonresident dealer shall be required to pay an annual license
fee of $200.00 and such dealer shall pay an annual license fee of $5.00 for each agent, resident buyer, or traveling buyer employed by, or buying for, or acting as an agent for such nonresident dealer." Under this section, I am of the opinion that the fact that such nonresident deals only with licensed resident dealers in making purchases of furs does not exempt him from the payment of the nonresident fur dealer's license. Under sub-section 23 "any person, firm or corporation who engages in the buying of furs for resale, or who employs agents or other parties to buy and sell for him, is likewise considered a dealer." Under this definition, or statutory construction, I am of the opinion that when a nonresident comes to this State and buys furs for cash and resale, he subjects himself to the payment of a nonresident dealer's license fee of $200.00 even though such purchases are made only from licensed resident dealers.
GAME AND FISH-Nonresident may not fish m private pond without license
May 28, 1936
Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr: Cravey:
I have your request for my opinion as to whether a nonresident of the State of Georgia may lawfully fish in a private pond without obtaining a nonresident license.
The Act of 1935 (Georgia Laws 1935, p. 379), makes it a misdemeanor for any nonresident of this State to fish

102
"In any of the streams, lakes, ponds, or other waters of this State, whether fresh or salt, without first obtaining a license so to do from the Commissioner of Game and Fish." This is the latest statute on the subject, and in my opinion supersedes and repeals any earlier statute which might be construed to permit fishing by a nonresident in a private pond. Section 45-505 of the Code of Georgia permits fishing in private ponds by the owner and others with his consent at any time and in any manner. A nonresident of the State, under this section, may fish in a private pond during the closed season with the consent of the owner, but he cannot lawfully do so without obtaining the license required by the Act of 1935. The Act of 1935 makes no exception with reference to private ponds, but the plain and unambiguous language requires every nonresident to obtain a license before he can lawfully fish in any of the streams, lakes, ponds or other waters of this State. This is the latest statute on the subject and is controlling.
GAME AND FISH-Distribution of fines and forfeitures arising from violations of the game and fish laws.
June 8, 1936 Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
This will acknowledge yours of the fifth instant requesting an opinion as to the proper construction of Section 11 of the Act approved March 28, 1935 (Georgia Laws 1935, pp. 386, 389) as follows:
"The proceeds from all fines and forfeitures arising from the violations of any game and fish law shall be divided equally between the proper officers of the trial court and the Department of Game and Fish." I am of the opinion that the word "proceeds" as used in the above statute means "net proceeds" after all court costs have been paid. Therefore, where a person is convicted and sentenced to pay a fine of $75.00, which includes the costs of court, the division of the proceeds between the proper officers of the trial court and the Department of Game and Fish is not calculated and made until the deduction of court costs. On the other hand, if the sentence of the court imposes a fine of $75.00 and costs of court, the division between the officers of the trial court and the Department of Game and Fish is made upon the basis of $75.00, the Game and Fish Department being entitled to $37.50 and the proper officers of the trial court to $37.50. As stated above, where the court imposes only a fine and the sentence of the court is silent as to the costs, the officers of the trial court would have a lien upon the fine for the costs, and the "proceeds" of the fine or forfeiture could not be divided and properly disbursed

103
until the costs had been paid from the fine or forfeiture. As to the judicial interpretation of the word "proceeds" see Culberson v. Alabama Construction Company, 127 Ga. 599, 604.
The bill inclosed from 1\Ir. Brennen, Clerk of the City Court of Candler County, makes a proper division of the proceeds of the fine, provided the sentence of the trial judge merely imposed a fine and was silent as to the payment of the costs. I note, however, that the bill applies the $25.55 belonging to the officers of the trial court to "insolvent costs," which application is incorrect. This does not concern your office. If in each of the two cases itemized in the bill the sentence of the court imposed a fine of $75.00 and costs the division should have been made on the net sum of $75.00.
GAME AND FISH-What constitutes impersonation of an officer
June 11, 1936 Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
This will acknowledge reference of the letter of Mr. Carley under date of June sixth requesting my opinion as to whether the facts stated in this letter would constitute a violation of the statute relative to the impersonation of an officer.
Section 26-4902 of the Code provides: "Any person who shall, without authority, exercise or attempt
to exercise the functions of, or hold himself out to anyone as, a deputy sheriff, marshal, policeman, constable, or peace officer or detective shall be guilty of a misdemeanor: Provided, that nothing in this Chapter shall be construed to interfere with the police powers granted to conductors of passenger trains, nor shall this and the preceding section apply in times of riot or unusual disturbance, or in other instances provided for by law." In view of the fact that a game warden is not a "peace officer or detective" within the meaning of this statute, I am of the opinion that a person representing himself to be a game warden and collecting funds as such would not be guilty of a violation of this statute. However, Section 26-7410 of the Code provides:
"Any person using any deceitful means or artful practice, other than those which are mentioned in Part XII of this Title, by which an individual, or a firm, or a corporation, or the public is defrauded and cheated, shall be punished as for a misdemeanor." I am of the opinion that the conduct of the person referred to in Mr. Carley's letter violates this Section, and is subject to prosecution for cheating and swindling.

104
GAME AND FISH-Fishermen employed on a salary basis by a licensed fresh water fish peddler not subject to peddler's license
April 2, 1936 Hon. Zack D. Cravey Commissioner of Game and Fish
Dear Mr. Cravey:
You desire to know if a man buys a license to sell fresh water fish and then hires two fishermen to fish for him at a salary of $28 a month, whether the fishermen are required to also obtain a license to sell fresh water fish.
Section 45-503 of the Code provides in part: "Each peddler of fresh water fish, and each and every person,
firm or corporation who shall sell or offer for sale fresh water fish, shall first procure a license in each county in which fresh water fish are peddled, sold, or offered for sale." Applying this section to the above stated facts, I am of the opinion that the fishermen employed by the holder of the license are merely employees, and are not fish peddlers. They do not sell or offer for sale fresh water fish, but merely sell their services to their employer. Consequently, I do not feel that the fishermen are subject to the license fee imposed by Section 45-503.
GAME AND FISH-Department of Game and Fish not authorized to lease lands for any purpose except for the purpose of planting and cultivating oysters; game preserves, how established
January 18, 1936 Hon. Zack D. Cravey Commissioner of Game and Fish Dear Mr. Cravey:
I have your memorandum together with the letter of Sportsmens League of Georgia addressed to the Governor attached.
There seems to be no authority vested in your department to lease lands except for the purpose of planting and cultivating oysters. However, under the provisions of Code Section 45-106 you are authorized to establish preserves and provide for their operation and management in the method and manner there prescribed and to do this it is necessary that you obtain the consent of the land owners. Such areas, however, when open shall be for the common use of all people of the State.
Under this provision I see no reason why the Governor may not give the consent of the State, as the owner of this island, in order that the same may be set aside as a game preserve in accordance with the provisions of the above named Code Section.
When this is done it seems to me that it becomes your duty to make such rules and regulations as you may deem proper and there should be no obstacle to your making an agreement with the Sportsmens League that will in effect carry out the idea expressed in their letter that this island may be used as an annual meeting place or

105
summer camping ground for the League, but under the provisions of the statute any citizen of Georgia would have the right to use the island for the same purpose, at any time whenever the same is open.
GAME AND FISH-Title to Walburg Island
January 10, 1936 Hon. Zack D. Cravey Commissioner of Game and Fish
Dear Mr. Cravey: This will acknowledge your letter of December 21, 1935, to which
is attached a letter from Judge W. C. Hodges, of Hinesville, Georgia, as well as a copy of a certain lease executed on November 14, 1933, by Honorable PeterS. Twitty, former Commissioner, by the terms of which lease certain property was leased to L. P. Maggioni & Company under the provisions of "The Coastal Fisheries Bill" passed by the General Assembly of Georgia in 1924.
The description of the property covered by said lease is as follows: A strip of land 150 feet wide along the entire shore line of Wal-
burg Island, bound as follows: On the North by Saint Catherine's Sound; South and East by Walburg Creek and on the West by North Newport River. Said strip contains 130 acres, more or less, located in Liberty County, Georgia. The question involved in this matter is the title to the so-called Walburg Island. When Commissioner Twitty advertised proposed leasing of this area, as required by the Act of 1924, a protest was filed by Saint Catherine's Corporation, the ground of protest being that Saint Catherine's Corporation and its predecessors in title owned this property and had been in open, notorious, quiet and peaceful possession of the same for more than twenty years and therefore, the Commissioner had no right or authority to enter into any lease with regard thereto as the Commissioner could only lease such property as belonged to the State of Georgia. It appears that this protest was filed with the Commissioner before the expiration of the time for executing the lease but that no hearing was called and no opportunity given protestant, Saint Catherine's Corporation, to appear and have a hearing before the Commissioner. It appears that this advertisement was run during the month of October, 1933, and the alleged lease bears date of November 14, 1933. The file in your office which has been furnished me shows that on October 27th, 1933, Mr. C. M. Keys addressed a letter to the Commissioner protesting the lease and stating that it would encroach upon his property. On November 7th, the Commissioner acknowledged receipt of the formal protest made in behalf of Saint Catherine's Corporation through its attorney, Judge W. C. Hodges. On November 9th, a telegram was received by the Commissioner signed by "Indiola A. Keyes, President" further protesting in behalf of Saint Catherine's Corporation against the proposed lease. On

106
the same date Mr. Lewis W. Beach, Chief Inspector, addressed a letter to the Commissioner in which he states:
"Judge Hodges, representing the Keyes interest of Saint Catherine's Corporation, and which seems to involve Walburg Island, the island sought to be leased by Maggioni, visited my office this morning and served me with the inclosed protest to the completion of the transaction. He suggested that I write you asking that you set such time and place as would best suit your convenience (but at the same time suggesting Brunswick) for him to furnish such evidence as he may have as to the ownership of the property in question." From the foregoing it will be seen that insistent protest was made to the Commissioner prior to the execution of the lease which purports to have been executed by the Commissioner on :November 1ft, 1933, and that appears to have been executed by Maggioni and Company on the 6th day of :November, 1933. There was also in the file a copy of a letter addressed by Commissioner Twitty to Mr. Edwin H. Abrahams under date of February 1, 1934, relating to this transaction. In this letter Mr. Twitty discusses the entire matter very fully. For the purpose of this letter, I am quoting a part of Mr. Twitty's letter:
"According to my best recollection, Mr. Beach sent me the Maggioni lease (covering the St. Catherine's property) along with other leases affecting other property, which I signed and returned to him in the regular course. Within a day or two thereafter, I received my first notice of the objection of the St. Catherine's Corporation which was transmitted to Mr. Beach with the suggestion that I would discuss the matter with him personally on my next trip to Brunswick. The best that I can recall at this time, I mentioned the matter to Mr. Beach when I saw him and he advised me that the deeds had not been delivered to Mr. Maggioni. I thereupon instructed him not to deliver the deeds until the St. Catherine's interests were given a hearing.
"I never gave Judge Hodges an opportunity to make out his case.
"In the meantime it was my understanding that the deeds would not be delivered. As a matter of fact, I thought they were in the possession of Mr. Beach and was surprised to note that you state in your letter that the lease has been delivered to Mr. Maggioni and duly recorded."
There is nothing in the file by way of explanation as to how Maggioni & Company came into possession of the executed lease but the record is entirely clear that protest was filed and that Commissioner Twitty recognized the right of St. Catherine's Corporation to have. its protest heard and considered and that delivery of the lease was made contrary to express instruction of Commissioner Twitty.
It seems clear that from the file in this matter, to which I have referred and from which I have made some quotations, that the lease was never consummated as required by law and is of no binding effect. This however does not determine the question of title to

107
the property. I think the question of title to the so-called Walburg Island should be settled and the effort to do so has occasioned the delay in replying to your letter of December 21, 1935.
I have come to the conclusion that the title to "Walburg Island" is interwoven with that of St. Catherine's Island. It is contended that "Walburg Island" is not a separate island having an identity of its own, but is part and parcel of St. Catherine's Island and that title to "Walburg Island" is included and covered by the title to St. Catherine's Island. If this contention is true, then the State does not own Walburg Island and there is no authority to lease the same, unless the State owns St. Catherine's Island.
This section of Georgia was settled by the Spanish. In 1568 Jesuit Missionaries were placed on St. Catherine's and here Brother Domingo translated the catechism into the Yamassee Indian tongue and wrote a grammar as well, believed to be the first grammar written on American soil.
It appears that following the Spanish occupancy for approximately a century, the island was seized by the Indians and was utilized by them as a hunting and fishing ground. The ownership of the island after the Indian occupancy is not entirely clear, but it would seem that the islands of St. Catherine, Ossabaw, and Sapelo were regarded as belonging to the Creek Indian Confederation. This is borne out by the fact that in 1747, Thomas Bosomworth obtained from the Creek Indians a document testifying that Malatche had full power to transact all affairs of the Creek Indian Confederation. Malatche was the uncle of Mary Bosomworth, wife of Thomas Bosomworth. Following this power vested in Malatche, he executed a deed conveying all three of the islands to Thomas and "Mary Bosomworth, the conveyance to them was "so long as the sun should shine and the waters run in the rivers." In pursuance to this conveyance, Bosomworth purchased cattle, stocked St. Catherine's and established his residence there.
On October 14, 1754, Thomas Bosomworth and his wife, Mary, sold a half interest in these islands to one Isaac Levy, a London merchant. It appears that an extended litigation resulted in the Courts of England from the dealings with Bosomworth. This litigation dragged through the years until 1760 when it appears that a treaty was concluded with the Indians, the title of all disputed lands conveyed to England and thereupon on June 13, 1760, the island of St. Catherine was transferred to Mary Bosomworth in fee. On the same day Bosomworth and his wife, Mary, conveyed the island to Grey Elliott of Savannah in trust for the use of Mary Bosomworth or her assigns and after her death, to her husband, Thomas Bosomworth, subject to his power of disposal. Mary Bosomworth died. In 1765 Thomas Bosomworth and his new wife, Sarah, and Grey Elliott conveyed St. Catherine's Island to Button Gwinnett.
In the Department of Archives and History of Georgia appears a map of St. Catherine's Island dated December 4, 1754. This map was made during the Bosomworth occupancy. The map does not indicate or identify Walburg Island as such but this island is in-

108

eluded in the general contour of the map showing it as a part of St.

Catherine's Island. The grant to Mary Bosomworth is recorded in

Book B, p. 375, in the office of the Secretary of State of Georgia.

The conveyance to Button Gwinnett is in the record of conveyances,

1761-66, Part II, p. 1080.

Button Gwinnett sold St. Catherine's Island to Robert Porteous

and Alexander Rose and two conveyances were made: One on

February 5, 1773, and the other on l\Iarch 9, 1773. The first is

recorded at page 120 and the second at page 184, in Bonds, Bills of

Sale, Powers of Attorney, in the Department of Archives and His-

tory. The conveyance made by Button Gwinnett to Porteous and

Rose shows that Gwinnett conveyed St. Catherine's Island and the

"marshes and hammocks appurtenant thereto."

On the 4th day of May, 1782, the General Assembly of Georgia

passed an Act entitled:

"For inflicting penalties and confiscating the estates of such

persons as are therein declared guilty of treason and for other pur-

poses, and for the appointment of Commissioners,"

to sell the property so confiscated.

At the time this statute was enacted St. Catherine's Island was

the property of Porteous and Rose who came within the class of

persons whose property was condemned under the Act of May 4,

1782, and in pursuance to this Act the Commissioners sold and

conveyed St. Catherine's on June 13, 1782. One half of the island
was sold to one A. ,V. White and the remaining half was sold to one

John McQueen. The records of these sales are in Revolutionary

Records, Volume 1, pp. 424-426.

There is nothing of record indicating that title to St. Catherine's

Island ever revested in the State of Georgia after these sales or that

the State has ever claimed possession, ownership or control of St.

Catherine's Island after title was conveyed under the Act of May,

1782.

.

There is no record of any kind or character prior to this date as to

Walburg Island. All the evidence is to the effect that this small

island was included in the general boundary of St. Catherine's

Island which comprises several thousand acres.

From my investigation which has been exhaustive of all available

records, I am of the opinion that Walburg Island is a part and parcel

of St. Catherine's Island and the title thereto is in the owner of

St. Catherine's Island.

In view of what is said above, I am of the opinion that you should

notify the lessor that you will not receive any further compensation

by reason of the alleged lease, for the reasons above stated: First,

that the lease was not executed and delivered in conformity with the

law, and is therefore void; and second, that title to this property is

not in the State and there was no authority vested in the Commis-

sioner to lease the same at the time the advertisement was run and

the effort made to lease.

1()9
GENERAL ASSEMBLY-Duties of Attorney General in connection with General Assembly
March 18, 1935
To The House of Representatives State Capitol
Gentlemen: I am in receipt of House Resolution No. 231, requesting informa-
tion from the Attorney General in regard to House Bill No. 3. The resolution states in substance:
That the General Assembly has passed a measure known as the "diversion bill" whereby Two Millions of Dollars have been made available for Confederate veterans and their widows, and for the common schools, and that the part of said funds going to the veterans and their widows has been disbursed but the remainder of said funds has not been disbursed. A ruling is requested, within twenty-four hours from the transmission of the resolution, giving the construction placed on the Act, in order that the House may be advised as to the manner of disbursement of said funds.
The Constitution of this State provides in part as follows:
"There shall be an Attorney General of this State whose duty it shall be to act as legal advisor of the Executive Department, to represent the State in the Supreme Court in all capitol felonies and 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 law provides in part:
"That the Attorney General when required so to do by the Governor (a) Shall give his opinion in writing or otherwise on any question of law connected with the interest of the State or with the duties of the departments. (b) Act as legal advisor of the Executive Department. (c) Represent the State in the Supreme Court in all capital felonies.
"It is also the duty of the Attorney General, when requested, to advise with the General Assembly, either branch thereof, or any committee of same, to aid in the preparation of proposed legislation."
In compliance with the law, the Attorney General, when requested, has cooperated with each and every member of the General Assembly, and with each and every committee, in the preparation of proposed legislation. In fact, he has drafted more than six hundred bills and resolutions for introduction into the House and Senate. He has cooperated willingly and without stint in the preparation of proposed legislation, and it has been a real pleasure to do so,
The Attorney General was not requested by the General Assembly, or by any committee or member thereof, to give any advice or assistance in reference to House Bill No. 3, known as the "Diversion

110
Bill," until after it was passed by both Houses, signed by the Governor, and became a law.
Under the Constitution and laws of this State the disbursement of those funds is entirely a matter for the Executive Department, which, in this instance, includes the Governor, the State Superintendent of Schools, and the State Auditor. It is a matter over which no other department could have or exercise any control.
The Attorney General is a legal advisor of the heads of all the departments on matters before the respective departments. He would hesitate long before he would advise the Secretary of State as to the duties of the Comptroller General, or the State Treasurer as to the duties of the Revenue Commission. He does advise the Secretary of State as to the duties respecting his department, the Comptroller General as to the duties respecting his department, the State Treasurer as to the duties respecting his department, but always upon request of the heads of the departments involved. He has never advised one department as to the duties of another department.
The Diversion Bill has been passed by both Houses of the General Assembly by the requisite constitutional majority, approved by the Governor, and is now a law. It has, therefore become a completed legislative enactment, the enforcement of which rests with the Executive Department, as does the enforcement of any other legislative enactment.
The Attorney General has had no request from those charged with enforcing the Act and disbursing the funds for any opinion as to the proper construction of this Act.
Whatever opinion the Attorney General might render would necessarily be for the information of the Executive Department in the administration of the Act. It could serve no other purpose. It would be improper for the Attorney General, without a request from the Executive Department, to give an opinion which could serve only for the guidance of that Department.
With assurance of high re~ards to each and every member personally, I beg to remain yours smcerely.
(Note-See page 137 for opinion rendered to Governor on this Act) PROPERTY-State had no reversionary interest in property con-
veyed by the trustees of Richmond Academy to trustees of Roman Catholic Society located in City of Augusta
March 9, 1935
Hon. Eugene Talmadge Governor State Capitol
Dear Governor Talmadge: This will acknowledge your verbal request for an opmwn as to
whether the State has a reversionary interest in the property conveyed by the trustees of the Richmond Academy to the trustees of the Roman Catholic Society in the City of Augusta, under the au-

111
thority of the Act approved December 10, 1811, (Ga. Laws 1811, pp. 56-57), and under the deed dated April16, 1812.
In the habendum and tenendum clause of the deed it is stated, "The said lot to be vested in the trustees and their successors in office as a site whereon to erect their Church or House of Worship and for no other purpose whatsoever." In considering this language it will be noted that there is no express provision for a reversion either to the State or to the trustees of the Richmond Academy. It was said in the case of Thompson v. Hart, 133 Ga. 540, in a case where the Supreme Court was considering language very analogous, if not more strongly indicative of a reversion than the language in the present deed,
"For, even if a restriction is imposed by the language employed in the clauses referred to, the effect of such a restriction, we apprehend, would not be, in case the property were devoted to other uses than that contemplated in the deed, to work a forfeiture of the estate, as in the case of a violation of a condition subsequent, where forfeiture and re-entry are provided for." The court, in its opinion in this case, applies the rule of equity as found in Section 37-216 of the Code of Georgia of 1933 as follows:
"Equity seeks always to construe conditions subsequent into covenants, and to relieve against forfeitures, where the rules of construction will allow," and says that:
"A condition subsequent will not be raised by implication from a declaration in a deed that the grant is made for a special and particular purpose, without being coupled with words appropriate to make such a condition . . . . These words must be conjoined in a deed with others giving a right to re-enter or declaring a forfeiture in a specified contingency, or the grant will not be deemed to be conditional." The language used in the deed in the Thompson case was:
"To have and to hold said lot of land, with all and singular the rights, members, and appurtenances thereto appertaining, to the only proper use, benefit, and behoof of them, the said trustee! and their successors in office, in fee simple; and the said Methvin S. Thompson the said bargained premises unto the said trustees as aforesaid for church uses only, and their successors, against the said Methvin S. Thompson, his heirs, executors, and administrators and against all and every other person or persons, shall and will warrant and forever defend by virtue of these presents." The ruling in the Thompson case was by a full bench and has never been reversed. Under the principles laid down in this decision and others which follow it, it is my opinion that the State has no reversionary interest in the property covered by the deed from the trustees of the Richmond Academy to the trustees of the Roman Catholic Society in thP City of Augusta.

11!!

APPROPRIATIONs-construction of Act diverting funds from Highway Department to General Treasury for payment of past due appropriations

April 2, 1985

Bon. Eugene Talmadge, Governor

Chairman State Board of Education

State Capitol

My dear Governor:

I have your request for my opinion as to the proper construction

of the recent Act of the General Assembly providing for the diversion

of two million dollars of surplus funds from the State Highway De-

partment to the general treasury for the payment of past due appropriations.

Section one of this Act authorizes, empowers and directs the State

Highway Board and the State Highway Department to pay two million dollars into the general fund of the State Treasury.

Section two provides that the fund arising under section one shall

be disbursed upon warrants of the Governor for the payment of the

past due appropriations for Confederate pensions in full,

"And the balance 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 ref!ular appropriations are paid."

,

Section two further provides that all school boards shall use their

pro rata part of said funds for the payment of past due salaries to school teachers and bus operators which have accrued prior to January 1, 1935, before using said funds for any other purpose, and such

payments must be made in the order in which the original indebted-

ness was incurred.

Construing section two of this Act in accordance with its manifest

purpose, it provides: First, for the payment of the past due ap-

propriations for Confederate pensions in full. Second, that the

balance remaining after payment of the Confederate pensions 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 amonf! the counties and independent school systems

as ref!ula_r appropriations are paid. Whatever amount of money is received by any county or independent school system must first be used by such county or independent school system for the pay-

ment of past due salaries of school 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 out-

standing salaries must be paid first. If the county or independent

school system has any sum remaining after the payment of such

salaries, it may then use such sum for other school purposes.

There is no ambiguity or uncertainty about the meaning of section

two of this Act. When, however, section two is considered along

with section three of the Act there appears to be some uncertainty

about the meaning of the two sections, considered together, which

liS
uncertainty, however, is easily clarified by reference to the general law and the Constitution.
Section three provides that: "Any balance of the school funds provided by section one re-
mainin~ after the payment of such school teachers, and school bus operators and Confederate soldiers," shall be disbursed and distributed for the payment of unpaid appropriations carried in the Appropriations Acts of 1927 and 1929 and now remaining unpaid and uncancelled. Section three does not purport to restrict, or impose any limitation upon section two. It does provide for the distribution of any balance remaining after the distribution required by section two has been completed. It is a cardinal rule of construction that a statutory enactment must be construed in its entirety and so as to give effect to all of its provisions if that be possible. Section two of the Act provides for the distribution of the fund remaining after the payment of Confederate 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. Construing section three in the light of the obvious meaning of section two, the reference in section three to the balance remaining after
"The payment of such school teachers and school bus operators and Confederate soldiers," must be taken to mean the balance remaining after the payment of the fund required to be paid by section two which is set apart by that section first to the payment of school teachers and bus operators. I do not think section three can be construed to reduce the amount payable pro rata to the public schools under section two, since such a construction would defeat the manifest purpose of section two which is to provide for the distribution of so much of the fund as goes to the common schools on a pro rata basis. Such a construction would also ignore the uniform rule that legislative enactments must be construed so as to give effect to every part thereof. There is a further uniform rule of construction for. legislative enactments, and that is that every statute must be construed so as to conform with existing laws and in the light of existing law. Section 32-404 of the Code of Georgia of 1933 provides as follows:
"Each county shall constitute a school district and the public school funds shall be apportioned among the several districts by the Board as provided by law." The reference to the "board" is to the State Board of Education. Section 32-510 of the Code of Georgia of 1933 provides as follows:
"It shall be the duty of the State Superintendent of Schools annually to equitably apportion the state school revenue to the different counties and independent local systems, upon the basis of the aggregate of children between six and eighteen years of age, inclusive, in each county."

114
It will thus be seen that the general law of this State makes provision for the apportionment of school funds provided by the State equitably and upon the basis of the aggregate number of school children in each county. The reference by section two of the Act under consideration to a distribution pro rata as regular appropriations are paid, manifestly means distribution according to the basis of apportionment provided for by the section of the code just referred to.
This construction is further strengthened by a consideration of Section 32-913 of the Code of Georgia of 1933, which provides as follows:
"The county boards of education are empowered to employ teachers to serve in the schools under their jurisdiction, and the contracts for said service shall be in writing, signed in duplicate by the teacher on his own behalf, and by the county superintendent of schools on behalf of the board." In the case of Orr v. Riley, 160 Ga. 480, the Supreme Court held:
"The county boards of education have the execlusive power and right to employ teachers to serve in the schools under their jurisdiction." In that case it was held that a teacher could not recover his salary unless he had a written contract with the county board of education conforming to the requirements of Section 32-913 of the Code of Georgia of 1933, and that this was true even though such teacher may have been employed by a local school district upon authority granted by the county school superintendent. The ruling in Orr v. Riley was followed by theSupreme Court in Green v. Snellville Consolidated School District, 169 Ga. 667, and in a number of other cases decided by the Court of Appeals. Section 32-919 provides that:
"Whenever the county board of education or local district trustees deem it for the best interest of the school, they shall have the right to provide means for the transportation of the pupils and teachers to and from said schools." It thus plainly appears that school teachers and school bus operators are not employees of the State of Georgia, there being no contractual relationship between them and the State, but are employees of the Board of Education of the particular county or independent system and that the debts represented by the unpaid salaries of school teachers and bus operators are debts of the county boards of education or independent systems and not of the State. The Constitution of this State provides by Article VII, Section VIII, Paragraph I that:
"The State shall not assume the debt, nor any part thereof, of any county, municipal corporation, or political subdivision of the State, unless such debt be contracted to enable the State to repel invasion, suppress insurrection, or defend itself in time of war." It will thus be seen that the State cannot constitutionally assume or pay an indebtedness due by the counties, or independent systems to a teacher or bus operator for services rendered the county, or the county board of education, or independent system in teaching in the public schools, or operating a bus.

115
There can be no doubt but that the General Assembly in providing for the payment of the past due appropriation to a county for school purposes, might with due regard to the general law and the Constitution limit the purpose for which the fund paid should be used by the county. It has done this in the instant matter by requiring the application of the fund in each case, first, to the payment of school teachers and bus operators. The General Assembly could not, however, make an appropriation to the various counties or independent systems without any reference to the pro rata distribution of the school funds required to be observed by the general law. Neither could the General Assembly make an appropriation direct to pay the debts of the counties and independent systems due the teachers and bus operators. Such is prohibited by the Constitution. ;.
While the section of the Constitution just referred to is not involved in. tlie'instant enactment under the construction I have given the Act, .the constitutional provision does lend force to the construction placed upon th~ Act.
There is another'provision of the Constitution which prohibits the General Assembly from granting donations or gratuities from the public treasury: This paragraph of the Constitution also lends strength to the construction I have placed upon this Act, since a provision for the payment of debts due by the county and not by the State, without any reference to the obligation of the State to the county, might be construed to fall within the inhibition of the paragraph last referred to.
I am of the opinion that the Act of the General Assembly properly construed in the light of the general law and the constitution means that the funds required to be paid into the treasury should be distributed as follows:
1. To the payment of the past due appropriations for Confederate pensions in full. I am advised this has been done.
2. The balance :to the payment of the past due appropriations for common schools and the Barrett-Rogers school fund, which should be distributed to the various counties and independent school systems pro rata as regular appropriations are distributed. The Counties and independent school systems are then required to use this money, first, for the payment of school teachers and bus . operators, and may then use any sum remaining for other legal school purposes.
3. It is my understanding, however, that there will be no balance after the distribution last referred to, since the unpaid appropriations for common schools amount to more than the fund provided. Should there be a balance, however, it should be distributed upon all unpaid appropriations made in the Acts of 1927 and 1929 and now remaining unpaid and uncancelled. This distribution must also be pro rata in accordance with the amounts remaining unpaid.

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AGRICULTURE-Availability of appropriation made to Department of Agriculture for use in combatting screw worm

April 2, 1935

Hon. Eugene Talmadge, Governor

State Capitol

My dear Governor:

I have your request for an opinion with reference to the availability of the appropriation made by the recent Act of the General Assembly to the Department of Agriculture for use in combatting

the screw worm.

The General Appropriations Act of 1933 making appropriations for 1934 and 1935 contained no appropriation for this purpose. The

Constitution provides that the General Appropriation Act shall embrace nothing but appropriations fixed by provision of law, the

ordinary expenses of the Executive, Legislative and Judicial Departments of the government, payment of the public debt, the interest thereon, and for the operation of the public institutions and educational interests of the State.

The Department of Agriculture is a branch of the Executive Department. It is clothed by law with broad powers relating to veterinary activities and the combatting of diseases of animals. The purposes for which the appropriation under consideration was made seem to me to clearly fall within the powers of the Department of Agriculture and the General Assembly might, without violating the provisions of the Constitution just referred to, have

included this particular appropriation in the General Appropriation Act of 1933. Having failed to do so, but such action being authorized, it is obvious that the General Assembly might have amended the General Appropriations Act of 1933 at its 1935 session so as to include this appropriation therein.

I am not unmindful of the provisions of the budget laws as contained in Section 4o-406 of the Code of Georgia of 1933. I am of the opinion that the appropriation now under consideration is not a supplementary appropriation within the meaning of that section. In my opinion that section contemplates appropriations for pur-

poses which could not have been originally included in the general appropriations Act. This is not such an appropriation.

I am therefore of the opinion that the appropriation to the Depart-

ment of Agriculture for screw worm control takes its place in the

current appropriations for the year 1935 just exactly as if it had

been included in the General Appropriations Act of 1933, or added

thereto by a specific amendment to that Act. The appropriation is,

of course, subject to the conditions and limitations imposed by the

General Appropriations Act of 1933 upon other appropriations

embraced therein.



117
RAILROAD-Construction of Western & Atlantic Lease Act
April 3, 1935
Hon. Eugene Talmadge, Governor State Capitol
My dear Governor: This will acknowledge reference of the letter of 1\Ir. E. Q. Hilde-
brand, 508 Hill Street, S. E., Atlanta, Georgia, under date of March 27, 1935, in which he complains of the manner in which theN. C. & St. L. Railway Company, lessee of the Western & Atlantic Railroad, operates its business and holds itself out to the public.
Under the Western & Atlantic Lease Act of 1915 (Ga. Laws, Ex Sess. 1915, pp. 119-128), it is provided that when any person, firm or corporation leases the 'Vestern & Atlantic Railroad, such person, firm, or corporation shall immediately become a corporation of this State. The Court of Appeals in its opinion rendered March 26, 1935, in the case of Hildebrand v. N: C. & St. L. Ry., said:
"It will seem, therefore, that any person or corporation which leases that line of railroad belonging to the State of Georgia which extends from Atlanta, Fulton County, Georgia, to Chattanooga, Tennessee, automatically becomes a new corporation under the laws of this State, to be known as the Western & Atlantic Railroad Company." The Supreme Court in the case of N.C. & St. L. v. Edwards, 91 Ga. 24, a case which was decided in 1891 and which has been followed many times by our courts, in construing the Western & Atlantic Lease Act of 1889 made substantially the same ruling. Section 106-301 of the Code of 1933 makes it unlawful for any person, persons or partnerships to carry on, conduct, or transact any business in this State under an assumed, fictitious, or trade name, or under any other designation, name or style other than the real name or names of the individual or individuals conducting or transacting such business, without first filing in the office of the clerk of the superior court in each county where the concern does business, an affidavit setting forth the full name or names, and address or addresses of the true owner or owners of said business. However, by the express provisions of Section 106-304 of the Code of 1933 this section does not apply.
"To any corporation duly organized under the laws of this State." Therefore, I know of no provision of law which would prevent the lessee of the Western & Atlantic Railroad from operating such railroad under the name and style of theN. C. and St. L. Railway. I am herewith returning you Mr. Hildebrand's letter and trust that this information will sufficiently acquaint you with the law relative to the rights of the lessee and of the public.

118
RAILROAD-Rights of lessee under contract leasing Western & Atlantic Railroad
April 12, 1935
Ron. Eugene Talmadge, Governor State Capitol
Dear Governor Talmadge: Pursuant to your request, I have examined the proposed lease
agreement between the Nashville, Chattanooga and St. Louis Railway and B. F. Joel of Fulton County, Georgia, and have likewise examined the lease contract between the State of Georgia and the Nashville, Chattanooga and St. Louis Railway under date of May 11, 1917, and submit you herewith my report as follows:
The General Assembly of this State in 1915, passed what is known as the Western & Atlantic Railroad Leasing Act. This Act was passed at an Extraordinary Session of the General Assembly in November, 1915, being approved on November 30th, 1915. (Ga. Laws, Ex. Sess. 1915, p. 119).
Under the specific provisions of the Act a commission was constituted and authorized to proceed as it might deem most expedient to the end in view, subject to such limitations and directions imposed by that act.
By Section 3 of this Act the commission was required to determine "What, if any property is owned by the Western and Atlantic
Railroad, not useful for railroad purposes, that could be properly and advantageously disposed of separately from the lease of the road . . . . Whether or not it would be wise and expedient to reserve from any of said properties, either at the terminals or elsewhere upon the line, overhead or under~round ri~hts, lookin~ to their subsequent use separate from railroad purposes, with specifications and recommendations thereof." Under the provisions of Section 5 of the Act, the commission was charged with the duty of preparing or causing to be prepared complete and accurate surveys, maps, profiles and estimates, showing:
" . . . . The extent and character of every use or occupation of the right of way, tracks and other property of the road by any person or corporation other than the lessee, and the authority therefor." Under Section 6 of the Act, the commission was also fully authorized and empowered to lease and contract for the leasing of the railroad properties known as the
"Western and Atlantic Railroad, including the terminals thereof, and its property other than its railroad property, not connected with either of its terminals; and the same may be leased, either in its entirety or as a part, whether surface, underground or overhead rights." It was further provided in said Section 6:
"All the terms and conditions upon which said property may be leased shall be determined and prescribed by the commission except as may be limited by the provisions of this Act."

119
Under Section IIA of the Act it was provided that "The said lessee shall not sublet or re-lease the said Western
and Atlantic Railroad, or any part thereof, without the approval in writing of the Governor of the State; provided, however, that the commission herein created shall have the power and authority to prescribe the terms and conditions under which the tracks ~ay be used by other railroads in cases of emergency." By the provision of Section liB of the original Act, the lease was required to reserve to the State the power to authorize the laying out, building and construction of such ways, streets, roads, bridges, and viaducts, across and along the properties leased, as may be deemed to be to the interest of the people of Georgia, without let or hindrance, and without liability over to the lessee by abatement of lease, money or otherwise. The General Assembly in August, 1916, amended Section 11A of the original Act, above referred to, and said section as amended reads as follows:
"11-A. The said lessee shall not sub-let or re-lease the said Western and Atlantic Railroad, or any part thereof, except such as is not needed for railroad purposes, without the approval in writing of the Governor of the State; provided, where any property shall be re-leased under this section, it shall be reported to the office of the Railroad Commission and a record made thereof in a book to be kept for that purpose in order to complete the same. All improvements, betterments or additions to, in or upon the said road, or any part thereof, or any part leased thereunder, made by the lessee or its tenants shall become, upon the expiration of the lease the property of and belong to the State of Georgia" Ga. Laws 1916, pp. 148, 149. The original lease executed in May, 1917, covered
"The said Western and Atlantic Railroad, a railroad running from the City of Atlanta in the State of Georgia to the City of Chattanooga in the State of Tennessee, including the terminals thereof, and its property other than its railroad property not connected with either of its terminals, together with all its houses, workshops, rolling stock, depots and appurtenances of every kind and character belonging and appertaining to said railroad, except the following pieces and parcels of land, to wit: (Here was set out the lots and parcels lying or being in the City of Chattanooga, Hamilton County, Tennessee.)"
The provisions of Paragraph 11 of the lease, here appurtenant are as follows:
"The granting by the party of the second part of trackage rights to other carriers over the Western and Atlantic Railroad or any part thereof, shall not be construed as a sub-letting of the property, such as is forbidden by Section 11-A of the Act without the written consent of the Governor of the State, provided, however, that such use of the tracks and property of the Western & Atlantic Railroad shall always be had and exercised subject and subsidiary to the domination and control of the party of the second

120
part, and further subject to all the duties, obligations and liabilities of the party of the second part to the State of Georgia, under the .Acts of the General .Assembly of Georgia and this contract of lease, and it is further understood and agreed that no contract or agreement for any servient use of the tracks or railway facilities of the Western & Atlantic Railroad, granted by the party of the second part to any other person, shall be construed as introducing a new party to the contract between the party of the second part and the State of Georgia; and every such servient use shall be subject in all respects to this contract of lease, and as between the State and the party of the second part such servient use shall be regarded as being the use by the party of the second part, through its agent or tenant." Under the lease between the Nashville, Chattanooga and St. Louis Railroad and B. F. Joel, it is proposed by the Nashville, Chattanooga and St. Louis Railroad to lease to B. F. Joel for a term of twenty-five years from the first day of May, 1934, subject to the terms and provisions of said Act of Georgia approved November 30, 1915, and all amendments and supplements thereto, and subject to the lease contract dated May 11, 1917,
"All the air rights over the following described property, to wit: (describing the property) .... Such air rights over the property shall begin at a plane twenty-one feet above the top of rail of the main tracks of the railway and extend upward, but the Realty Company shall have the right, subject to the approval of the Railway Company, to construct on the realty above described supports for any development of the air rights herein leased, together with the right to lay and maintain water, sewer, gas lines and other appurtenant connections as may be required for the full development of said air rights. The Railway agrees to cooperate with the Realty Company in working out a plan for such supporting columns, water, sewer, gas lines, and/or such other appurtenant connections, which will be mutually satisfactory to the end that such location, construction and maintenance shall not interfere with the safe and efficient operation of the railway." It, therefore, appears from the foregoing as follows: 1. That the General Assembly conferred upon the commission the right to determine and pass judgment upon the question as to the reservations of overhead and underground rights in the lease. 2. That the Commission was authorized and empowered to determine the extent and character of every use and occupation of the property leased. 3. That the commission was authorized to lease the property either in its entirety or as a part,- whether surface, underground or overhead rights.
4. That the lessee cannot sub-let or re-lease said property, or any part thereof, except such as is not needed for railroad purposes, without the approval in writing of the Governor.
5. That in executing the lease the property was conveyed without a reservation of the surface, underground or overhead rights.

llll

6. That the lease conveys to the Nashville, Chattanooga and St.

Louis Railway, the right to sub-let any part of the property not

useful for railroad purposes, subject to the terms, conditions, obliga-

tions and requirements of the Acts of the General Assembly and of

the lease contract.

7. That the use of the property conveyed is required to he exer-

cised subject to all of the terms, obligations and liabilities of the

Nashville, Chattanooga and St. Louis Railway to the State of Geor-

gia under the Acts of the General Assembly and under the contract

of lease.



Therefore, if the property rights proposed to he leased under the

lease contract between the Nashville, Chattanooga and St. Louis

Railway and B. F. Joel, the lessee, are not needed for railroad pur-

poses, the Nashville, Chattanooga and St. Louis Railroad would

have a right to enter into the lease contract and sub-let the property

proposed to he leased without the approval in writing of the Gover-

nor. On the other hand, if the property proposed to he leased is

needed for railroad purposes, it has no right to sub-let or re-lease the

property without the approval in writing by the Governor.

Looking to the proposed rights, we find that the rights proposed

to he conveyed are

"All the air rights over the following described property, to wit:

(Describing the property,) .... such air rights .... begin-

ning at a plane 21 feet above the top of railroad of the main tracks

of the Railway and extend upward . . . . the right . . . . to

construct on the realty above described supports for any de-

velopment of the air rights herein leased, together with the right

to lay and maintain water, sewer, gas line, or such other appurten-

ant connections as may he required for the full development of

said air rights."

If that property, or property right, proposed to he conveyed is

not needed for railroad purposes, and will not interfere with the use

of said property in the safe and efficient operation of the Railway,

then there would he no necessity for the approval of the contract by

the Governor. On the other hand, if the property is needed for rail-

road purposes, or if the ordinary use or exercise of the property right

thus conveyed would interfere with the safe and efficient operation

of the railroad property, then it would he necessary that the Gover-

nor approve the lease in writing.

In considering this matter, it is reasonable to assume that a proper

exercise of this right so conveyed might not at this time in any way

interfere with the safe and efficient operation of the Railway prop-

erty, and might he such property as is not now needed for railroad

purposes. In the future, nevertheless, such property might he

needful for railroad purposes and the exercise of the right, might in

some measure interfere with the safe and efficient operation of the

Railway, under such conditions as might exist in the future.

In view of the doubt as to whether or not the property right pro-

posed to he conveyed might or might not constitute property needed

for railroad purposes, and in view of the doubt as to whether or not

I~~
the exercise of the right thus conveyed might or might not interfere, at least to some degree, with the efficient operation of the Railway, I think it would be entirely appropriate for the Governor to exercise the discretion vested in him in approving or disapproving in writing the proposed lease.
CORPORATION&-Statement filed with Secretary of State rel ative to issuance of bonds by public or private corporations
April 18, 1935 Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
This will acknowledge yours of the 17th instant enclosing a letter of Thomas L. Slappey, Attorney, Atlanta, Georgia, under date of April 13th relative to the collection of penalties from corporations for failure to comply with Section ~~-718 of the Code of Georgia of 1933.
This Section makes it the duty of public and private corporations, before issuing or endorsing any bonds for circulation to furnish to the Secretary of State a certified statement showing the letter, date of issue, number of bonds, amount of issue, rate of interest, when and where payable, and the date of the law, if any, authorizing such issue; such information to be recorded by the Secretary of State. Section ~~-719 of the Code of 1933 provides:
"Public or private corporations neglecting or refusing to comply with the provisions of the preceding section shall be fined in a sum not exceeding $500 for each offense, one-half of said fine to go to the party giving information of such violation, and the other half to go to the public school fund of the county." This action for the collection of such penalty, is penal in its nature and under Section 3-103 of the Code of 1933, an action for the collection of same may be brought in the name of the State or the Governor or the Attorney General or Solicitor General as plaintiff. We have been able to find only one case where the Supreme Court of this State has construed this statute, the case of McDaniel, Governor, v. Gate City Gas-Light Company, 79 Ga. 58. In this case the court said:
"The Act imposes a duty upon the corporation to make this report; for failure on the part of the corporation to perform this duty, it incurs a penalty which is not to exceed $500.00. The penalty is not fixed at $500, but it is not to exceed that amount. The amount of the penalty is barred up on one side,-walled up, so to speak, so that it cannot go beyond $500; but it may be reduced to one dollar or one cent . . . . We think that the amount of the penalty is a question for the jury to decide under all the facts and circumstances of the case." I notice that Mr. Slappey makes reference to Senate Bill No. ~35 which provides for the creation of a Commissioner of Escheats and

1!l8
Penalties, with power and authority to collect in all escheat estates and to collect the penalty provided for under Section 22-719 of the Code. We have read Senate Bill Number 235, which passed the Senate and was tabled in the House. This Bill probably has some good features. The Commissioner of Escheats and Penalties under Senate Bill Number 235 was to be appointed by the Governor and for compensation, was to have 25% of the funds arising from his collec tions of penalties and escheats. However, it will be noted that the present law makes ample provision for the collection of these penalties, and I do not see the necessity for the creation of an additional officer to carry out the provisions of the Act in question.
In Mr. Slappey's letter he asks the question as to whether the Governor will permit these suits to collect penalties under Section 22-719 to be brought in the name of the Governor without requiring the informer to put up a bond. In answer to this question, I can see no harm in allowing such suits to be brought in the name of the Governor without requiring a bond. As it can easily be determined whether a corporation which has issued bonds has complied with the law by registering with the Secretary of State the data as required under Section 22-718 and in further view of the fact that a corporation against whom a judgment for the penalty is rendered would be bound to pay the cost of the suit, I feel that the State would be protected in any event. I would suggest, however, that before any suit is brought in the name of the Governor, that the informer first submit the facts and evidence in the case to the Attorney General in order that he may determine whether a prima facie case is made out against the corporation in question.
GOVERNOR-Notice of contest filed in election held under Alcoholic Beverage Control Act does not prohibit Governor from de daring result of election
May 23,1935
Hon. Eugene Talmadge, Governor State Capitol
Dear Governor Talmadge: I have your request for my opmwn with reference to a notice
which has been filed in your office with regard to the referendum election held on May 15, 1935, on the "AlcohDlic Beverage Control Act" approved March 22, 1935.
The notice is signed by Mr. J. Hill Foster of Madison, Georgia, and gives notice of the intention of Mr. Foster to contest the general election held on May 15, 1935, in and for the precinct of Madiso~ in Morgan County, Georgia. The notice recites certain grounds of contest and attaches a copy of a petition which has been presented to Hon. James B. Park, Judge of the Superior Court of Morgan County.
You desire my opinion as to what action should be taken by the Governor in view of the presentation of this notice.

124
Chapter 34-28 of the Code of Georgia of 1933 relates to contested elections. Section 34-2801 provides as follows:
"In all cases when the election of a person by the people to any office requiring a commission from the Governor is contested, the following shall be the proceedings in all contests arising thereform." That section then provides that the contestant or his attorney shall give written notice to the Governor of an intention to contest and that the Governor shall withhold the issuance of commissions to persons elected for five days after the election shall have been held. The notice signed by Mr. Foster was evidently intended to be given in conformity with this section of the Code. I am of the opinion that the provisions of Chapter 34-28 of the Code and of Section 34-2801 have no application to the present case. By its express terms Section 34-2801 is limited to cases of the election of a person to an office requiring a commission from the Governor. The referendum election of May 15 was not such a case and it is plain that this section of the code has no application to that election. There is no provision of law for contesting the result of any election except elections of persons to office. The Repeal Act of 1935, by Section 36, requires the certification of the returns of the election to the Secretary of State. It provides that
"If the State shall vote 'Against repeal', the Governor shall declare this Act not ratified." The statute itself plainly sets up a different procedure from that pertaining to general elections for officers required to be commissioned by the Governor.
I am therefore of the opinion that the presentation of the notice signed by Mr. Foster does not require or authorize the Governor to withhold the proclamation contemplated by Section 36 of the Repeal Act.
Furthermore, a consideration of the grounds of contest set forth by the notice of Mr. Foster and by the petition presented to Judge Park indicates that if the contest should be sustained on each and every gro~nd thereof, the result of the election would not be affected. The ground of contest attacks seven votes as being illegally cast. The contest also attacks the entire vote at the Madison precinct on account of alleged violation of the Australian Ballot Law. Assuming that all of the votes attacked were illegally cast and should be thrown out the result would be to decrease by 7 votes the majority against repeal in Morgan County. Assuming that the remaining ground of contest is good and requires throwing out the entire Madison box the result would be that the majority against repeal would be decreased by 77. Assuming further that this remaining ground of contest requires throwing out and disregarding the entire election in Morgan County the result would be to decrease the majority against repeal by 180 votes. This follows from the fact that the certified returns filed with the Secretary of State shows a majority

125
of 77 against repeal in the Madison or city precinct and a majority of 180 against repeal in Morgan County. The result of the election as certified to you by the Secretary of State shows a total majority against repeal in the State as a whole of 243. It therefore follows that the contest which has been presented by Mr. Foster to the Judge of the Superior Court, even if decided in his favor on all of the grounds set forth could not change the result of the election.
I hold, however, that there is no provision of law requiring or authorizing the Governor to withhold the proclamation contemplated by the Act of 1935 because of the pendency of this contest.
In this view it is not necessary to determine whether such a contest may be filed, or whether if the proposed contest should be filed it could operate to change the result of the election.
In my opinion the presentation of this notice should not be considered as a reason for withholding your proclamation.
TAXATION-Tax Collectors unauthorized to collect beer taxes; that duty rests on the State Revenue Commission
May 29, 1935
Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
I have your letter of May 27th with reference to the Beer Act and note that you desire that I look into the matter and give you my opinion as to whether the tax collectors of the various counties of the State may collect this tax.
At the outset, permit me to say that in my opinion the tax collectors of this State are poorly paid for the services rendered and personally I should like very much if some means could be devised where they would be adequately compensated. They perform a valuable service to the counties and to the State and supply the lifeblood which keeps things going.
The General Assembly formulated and passed the Beer Act. They had authority to say who should collect the taxes and did so and placed that responsibility solely on the Revenue Commission. They could have placed that responsibility on the various tax collectors should they have seen fit to do so but they did not.
There is no provision in the Beer Act for paying commissions for the collection of the taxes. Any one employed to collect the taxes must be employed on a salary basis and when so employed would be an employee of the State. We must construe the law as passed and place upon it the construction which the legislature evidently intended, irrespective of our wishes to the contrary.
Section 5 of the Act requires the payment of certain specified license fees at the following rates: $1,000.00 for brewers; $500.00 for wholesale dealers; $10.00 for retail dealers. This license tax: must be paid upon each place of business. The section expressly provides as follows:

126
"Said fees shall be paid on each place of business operated and shall be payable to the State Revenue Commission." Section 6 of the Act requires every brewer to file with the State Revenue Commission within fifteen days from the close of each month duplicate invoices of the sales of malt beverages during the preceding month
"And at such time shall pay the Commission the amount of tax specified on such sales." The tax referred to is the tax of $1.25 per barrel on beer. The same Section 6 requires wholesale dealers who purchase for re-sale beer upon which the tax has not been paid, to also file duplicate reports and provides that they shall
"At such time pay to the Commission the amount of tax specified on such sales." The same section also makes the same requirement of retailers as to beer purchased by them for re-sale on which the tax has not been paid and requires them to
"Pay to the Commission the amount of tax specified upon such sales." The same section requires wholesale dealers and retail dealers and brewers to keep and preserve such records as may be prescribed by the Commission showing the malt beverages manufactured, purchased, and sold which must be open to inspection by the Commission, or any authorized agent or employee thereof, for a period of three years. The same section requires the execution of bonds by wholesalers and brewers conditioned to pay to the Commission such taxes as shall become due under this Act. The whole scheme of the Act contemplates the collection of the tax by the State Revenue Commission and the Act itself expressly provides for the payment of the tax to the State Revenue Commission. In my opinion the tax collectors are not authorized, as tax collectors, to collect this tax. This is true for the reason that the Beer Act not only fails to provide for the payment of the tax to tax collectors but expressly requires payment to the State Revenue Commission and also provides no manner or method of compensating any tax collector for the collection of any such tax. The commissions usually allowed tax collectors for collecting special taxes is 10%, except in the case of the corporation tax, which is on a graduated scale. The Beer Act does not provide any commission for anybody but on the contrary limits the amount of the gross revenue which may be used for enforcement purposes to 3% of the proceeds of the tax.
The State Revenue Commission is authorized by the Act, in my opinion, to employ such agents or employees as may be necessary to enforce the Act and collect the tax, subject to the limitation as to the amount which may be spent for enforcement.
This office has had a conference with a committee from the tax collectors about the matter. They agree with us that the law requires the payment of the tax to the State Revenue Commission

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and that the tax collectors, as such, cannot collect it. They express the view, however, that the State Revenue Commission might employ the tax collectors for this purpose. Of course, there is no restriction in the Act ()n the class of persons who may be employed by the State Revenue Commission, and I see no reason why the State Revenue Commission could not employ a tax collector if it saw. fit to do so. If it did this, however, the tax collector would not be employed in his capacity as tax collector but would be employed as any other individual. I have given the matter some consideration and have also discussed it with Mr. Matheson. I do not think it will be at all feasible to undertake to turn these collections over to the tax collectors. The set-up provided for by the Act contemplates a central accounting for the tax and that is where the principal expense will be incurred-in keeping the records and checking the records of one licensee against another. There will necessarily have to be some inspection work but it is my understanding that the Commission contemplates having these inspections made by the cigar and cigarette inspectors, who necessarily have to go in the same places of business because practically every retail dealer in beer will also sell cigarettes. They will probably need a few additional inspectors, but the small amount of money which will be available to enforce this Act will not permit them to employ many inspectors. If they undertook to employ some tax collectors, they would necessarily have to employ all tax collectors, and if they paid the tax collectors anything at all in the way of a reasonable compensation it would take more money in my opinion to pay them than the Commission would have available to enforce the Act. This would leave nothing to cover the cost of printing, etc., and the overhead expense of keeping the records here.
VOTERS-Poll taxes due by women
June 29, 1935
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have yours of the 28th enclosing the letter of Dr. C. H. Kittrell, Dublin, Georgia, under date of June 24th, requesting an opinion as to how far back the tax authorities of Laurens County should go in demanding poll taxes of women.
Prior to the Nineteenth Amendment of the Constitution of the United States, women could not vote in Georgia. This amendment became effective on August 26, 1920. At that time there was no law in Georgia requiring females to pay poll tax (see Brown v. Atlanta, 152 Ga. 383). In 1921, the legislature passed an Act known as the General Tax Act and by Section 20 of said Act, each and every individual inhabitant of this State between the ages of 21 and 60 years was required to pay a poll tax of $1.00. This Act became operative January 1, 1922. In the General Tax Act of 1923

1~8
(Ga. Laws, Ex.-Sess. 1923, p. 21, paragraph 1) a poll of $1.00 was levied upon each and every inhabitant between the ages of 21 and 60 and it was provided:
"This tax shall not be required or demanded of female inhabitants of the State who do not register for voting." Sub-section (a) of this Act further provides:
"That those female inhabitants who have heretofore registered may avail themselves of the benefits of this Act and be relieved of said tax, by applying to the tax collector of their county, and have their names stricken from said registration book; and it shall be the duty of said tax collector to issue to such females who may apply to have their names so stricken a certificate, which certificate shall bear the date when issued and shall give the name of such females, and state in substance that said named female has been stricken from the registration book and is no longer a registered voter for that year." This Act was approved December 19, 1923, and remained in effect until the General Tax Act of 1927 (Ga. Laws 1927, p. 57, approved August 25, 1927), when the legislature again levied a poll tax of $1.00 in the same language of the Act of 1923, with the exception that the language contained in sub-section (a) of the Act of 1923 relative to females having their names stricken from the registration list, was omitted and I think repealed by the Act of 1927. I am therefore of the opinion that since the passage of the Act of 1927, relative to the above, a female voter no longer has the right to have her name stricken from the registration book as provided by the Act of 1923 and any female voter who has registered since 1923 and remained an inhabitant of this State and has never had her name stricken from the list is subject to the payment of a poll tax for each year subsequent to her registration. In connection with this, see Hawthorne v. Turkey Creek School District, 162 Ga. 462; Davis v. Ward, 155 Ga. 748. Paragraph 3, Section 1, Article 2 of the Constitution as amended by the Act of 1931 (Ga. Laws, 1931, p. 102) is very clear and unequivocal in requiring a person who desires to register and vote in any election by the people to have paid "all poll taxes that he may have had an opportunity of paying agreeably to law" and within the time prescribed in said Act. Therefore, I am of the opinion that female voters who have once registered and hold no certificate showing that their names have been stricken in accordance with the provisions of the Act of 1923, should be required to pay poll tax for each year that she is an inhabitant of this State and is so registered, provided, of course, that no tax should be required of female voters over the age of 60. The fact that the collection of said tax may be barred by the statute of limitations does not alter the requirements of the Constitution that the same must be paid before the person may legally vote. Trusting this is the information desired by you, I am herewith returning the letter of Dr. Kittrell as requested.

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GOVERNOR-Authority to release surety on bond of ordinary
July 1, 1935 Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
I have your communication requesting my opinion as to whether or not the Governor is authorized to release the surety on the bond of an ordinary upon a proper application being made.
Section 89-424 of the Code of Georgia of 1933 provides as follows: "When the surety on any bond, given by any officer for the
performance of any public duty, shall give notice, in writing, to the Governor, of his desire to be relieved from future liability, for good cause therein stated and sworn to (of which the Governor shall be the judge), or any such surety shall, in the opinion of the Governor, formed upon satisfactory evidence, become insufficient, it shall be his duty to require of such officer a new bond and surety." It is expressly provided by Section 89-401 that the provisions of Chapter 89-4 of the Code of 1933, including the provisions of Section 89-424, "shall apply to the official bonds of all public officers of this State, or those whose offices may be established hereafter, unless the contrary is expressly provided." It is provided by Section 24-1705 that the bond of an ordinary must be approved by the Judge of the Superior Court of the circuit, and it is further provided by Section 24-1706 that in the event of said contingency the Judge of the Superior Court may require additional security of the ordinary. There is nothing in either of these sections, however, which deprives the Governor of the jurisdiction vested in him by Section 89-424 to relieve the surety on the bond of any public officer or the ordinary. I am therefore of the opinion that upon proper application of the surety upon the bond of any ordinary, the Governor may, if in his judgment and discretion the cause stated is sufficient, relieve the surety from any future liability and require a new bond and surety of the public official. If such public official fails, within ten days from the date of perso.nal service upon him of a copy of the order of the Governor, to execute a new bond with surety thereon, his office automatically becomes vacant.
TAXATION-Records in income tax division not subject to inspection by city tax officials
July 5, 1935 Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your memorandum inclosing a communication from 1\:Ir. J. Henson Tatum, Clerk, City of Atlanta, with a copy of a resolution adopted by the General Council of the City of Atlanta and approved

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June 18, 1935, requesting the Governor and State Revenue Commission to make available the income tax records held by the State for examination by city tax officials.
On June 26, 1935, Mr. Aubrey Milam, a member of the City Council of Atlanta, who, according to newspaper reports introduced and secured the passage of the resolution referred to, called on me with reference to this matter. On the same day I wrote Mr. Milam a letter, copy of which I herewith enclose.
The Income Tax Act of 1931 as embodied in Section 92-3216 of the Code of 1933, expressly prohibits the State Revenue Commission from furnishing this information. The purpose of the law was to induce taxpayers subject to the State income tax to file correct reports and not withhold any information for fear that it might be obtained by persons other than State officials. The statute not only expressly prohibits the State Revenue Commission from furnishing this information but makes it a criminal offense for any member of the Commission or any employee of the department to do so. I am therefore of the opinion that the State cannot legally make these returns available to the city authorities.
GOVERNOR-Not authorized to modify lease contract by extending time for making improvements
July 11, 1935
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your request for my opinion as to the authority of the Governor to enter upon a certain proposed contract between the State of Georgia, The Nashville, Chattanooga & St. Louis Railway, The Western & Atlantic Railroad, the United States Cold Storage Company and Dixie Terminal Building Company, with reference to the contemplated cold storage warehouse on the State's property in the City of Atlanta.
At its 1929 session, the General Assembly passed an Act creating a commission known as the Western & Atlantic Railroad Commission, composed of certain members named in the Act, with authority to contract upon behalf of the State for the construction, operation and maintenance of substantial and permanent improvements in the nature of storage warehouses upon what was then the depot site on the property of the State of Georgia in the City of Atlanta.
This Commission was directed to prepare and present to the General Assembly at its next session a full report covering in detail its action in conformity with the Act. The Act expressly provided that after such report the Commission should expire on August 30, 1931, unless continued by an Act of the General Assembly.
Pursuant to this Act, on January 20, 1930, the Western & Atlantic Railroad Commission entered upon certain contracts to which the Nashville, Chattanooga & St. Louis Railway, The Western &

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Atlantic Railroad, the Dixie Terminal Building Company, the United States Cold Storage Company, and the State of Georgia were parties. It is not necessary to recite in detail the provisions of these contracts. It is sufficient to say that they provided in substance for the leasing by the Nashville, Chattanooga & St. Louis Railway, the lessee of the Western & Atlantic, and the State, of certain property therein described, the opposite parties to the contract agreeing to construct certain buildings not later than August 1, 1931.
On June 24, 1931, a new contract was entered upon between the contracting parties referred to, the contract being executed on behalf of the State by the Western & Atlantic Commission, whereby the terms of the original contract were modified to the extent that the time within which the lessee, under the original contract agreed to complete the building was extended by providing that the building should be constructed in two units and that the first unit should be completed not later than a specified date. The second contract also provided that the United States Cold Storage Company should deposit in escrow with the Trust Company of Georgia $100,000.00 in securities acceptable to the State and the Railway Company and that if the first unit of the building should not be completed within the time prescribed, the Trustee should pay over to the Railway two-thirds in value of the securities, and to the State one-third in value of the securities; that in such event all buildings, structures and improvements placed upon the land should become the property of the State and Railway Company as their respective interests might appear, and all lease contracts should thereupon be automatically cancelled and abrogated.
The contract last referred to was conditionally entered upon, subject to approval by the Governor and by resolution of the General Assembly of the State of Georgia, the agreement expressly providing that unless it should be so approved, the contracts of January 20, 1930, heretofore referred to, should remain in full force and effect. This contract was approved by resolution of the General Assembly at its 1931 session.
To this date, no substantial action towards the construction of the first unit of the building has been taken by the lessees and it is obvious that the lessees cannot comply with their contract.
You desire to know whether the Governor has authority to extend the time for performance of their contract by the contracting parties referred to.
It is my understanding that the lessees rely upon Clause 16 of the original contract between the State and the Dixie Terminal Building Company as authorizing the Governor to make such extension. This clause provides as follows:
"After the Western & Atlantic Railroad Commission, which has executed this lease contract on behalf of the State, shall have made its report to the legislature as required by said Act approved August 24th, 1929, and shall have dissolved, it is agreed that the Warehouse shall be entitled to deal with the Governor of the State in all matters arising under this lease contract, it being the inten-

132
tion of the parties hereto that the Governor of the State shall fully and completely represent the State after such time in all matters and particulars." It is my opinion that the clause quoted simply authorizes the Governor to represent the State in all matters arising under the lease contract and in enforcing performance of the lease contract. It does not purport to authorize the Governor to modify the lease contract. Under the express terms of the contract, all the rights of the lessee terminate on a stated date. Under the expressed terms of the extension agreement, the right of the State to the forfeiture provided for accrues on a stated date. The rights of the contracting parties cannot be extended, altered or modified except by virtue of a new contract entered upon between the contracting parties, executed on behalf of the State pursuant to legislative authority. That this is true, is too obvious to admit of argument. It is my opinion that Section 16 of the original contract does not authorize the Governor to modify the terms of that contract, nor does it authorize the Governor to modify the terms of the extension agreement which was ratified by the General Assembly in 1931. Even if Clause 16 of the original contract could be construed as authorizing the Governor to modify that contract, or the extension contract, in my opinion such a provision would be wholly nugatory. This is true for the reason that the General Assembly alone is authorized to provide for the leasing of the property referred to. The General Assembly, by its Act of 1929, vested in the Western & Atlantic Railroad Commission authority to enter upon the lease contract referred to. That authority was not vested in the Governor, nor was it vested in anyone other than the Western & Atlantic Railroad Commission. Not only does the statute not authorize the Western & Atlantic Railroad Commission to delegate its authority, but it expressly provides that the Commission shall expire by limitation on August 30, 1931, unless extended by an enactment of the legislature. There was no such enactment. From what has been stated, it is my considered opinion that the Governor is not now authorized to modify the lease contract by providing for or consenting to an extension of the time within which the improvements contemplated may be erected. In my opinion, the State should claim the forfeiture provided by the contract.
JUSTICE COURTS-Powers and duties of Constables
July 12, 1935 Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
We have a letter of W. A. Wright of July lOth addressed to you in which Mr. Wright states that he, together with Mr. G. Davis are the lawful constables of Smyrna District in Cobb County, and that the justice of the peace of that district ignores them as the legally bonded constables of the district and places processes from his court

133
in the hands of the city police for service that recently he issued a dispossessory warrant and gave the same to the police to serve at a time when a bonded legal constable could have served the same.
The law provides that there shall be two constables in every militia district of the several counties of the State, elected by the people for terms of two years. In case of a vacancy the justices of the peace are authorized to fill the vacancy by appointment. There is a further provision that when a constable is temporarily absent from his district, or engaged in attendance on court, or there is likely to be injury or delay to the business of the court, the justice of the peace shall have the power to appoint a constable for the emergency. Under this provision, if the constable is to serve for a period longer than ten days, he is required to give the same bond as regular constables.
There is no provision of law that authorizes a town or city policeman to serve processes from justice courts by virtue of the fact that he is a policeman. A town policeman may be elected or appointed to the office of constable, but before he could discharge the duties it would ne necessary for him to make the bond required by law of such officers.
In all suits in justice courts, the justice of the peace is required to issue a summons and the requirement of law is that this summons shall be served by a lawful constable. If service is made upon a party by any other person than a lawful constable, it is the privilege of the defendant in such suit to accept the service or he may refuse service of this character and demand that he be served by the officer appointed by law for this duty.
In cases of dispossessory warrants, the law requires that the warrant shall be directed "To the Sheriff, or his deputy, or any lawful constable of the county." It is to be assumed that a justice of the peace would only deliver such a paper to an officer to whom he had directed it for service. However, under the well known rule that appearance and pleading is a waiver of process and service thereof, if service was made by any other person, it would still be the privilege of the person against whom the proceeding was instituted, to waive the informality of service and appear and plead and in such case he would be bound by the judgment.
Justices of the peace are constitutional officers, commissioned by the Governor and removable on conviction for malpractice in office. The law provides "any . . . justice of the peace, who shall be charged with malpractice in office, or with using oppression or tyranical partiality or wilfully refuses or fails to preside in or hold his court at the regular terms thereof, or when it is his duty under the law to do so, or use any other means to delay or avoid the due course of proceedings of law, or with any other conduct unbecoming the character of an upright magistrate . . . shall be punished as for a misdemeanor and shall be removed from office."
There is no provision of law for calling into question the official conduct of a justice of the peace other than by an indictment by the

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grand jury for malpractice in office, under the provisions above set out.
The above I think fully sets out the provisions of law relating to the conduct of justice courts and the service of processes therein. If there are other remedies for the condition described in the letter of Mr. Wright they are political.
JUSTICE OF THE PEACE-How removed from office
July 18, 1935 Mr. George T. Varner City Service Station Sasser, Georgia Dear Mr. Varner:
Your letter of July lOth addressed to Governor Talmadge has been referred to this Department for reply.
Section 24-405 of the Code of 1933 provides: "Justices of the Peace shall be removed from office upon con-
viction of malpractice in office or for any felonious or infamous crime." Section 89-9907 of the Code of 1933 provides:
"Any . . . justice of the peace who shall be charged with malpractice in office or with using oppression or tyrannical partiality, or with wilfully refusing or failing to preside in or hold his court at the regular terms thereof or when it is his duty under the law to do so, or with using any other means to delay or avoid the due course or proceeding of law, or with any other conduct unbecoming the character of an upright magistrate, or who shall wilfully and knowingly demand more cost than he is entitled to by law, in the administration and under color of his office, shall be punished as for a misdemeanor and shall be removed from office." The above provisions, in so far as they are applicable, apply also to constables. The grand jury is given general supervision over the conduct of these officers in the discharge of their official duty and upon proper showing made are authorized to return indictments under the statute above quoted.
GOVERNOR-Commissioner of Deeds m another State, how appointed
August 7, 1935 Hon. Carlton Mobley Executive Secretary State Capitol Dear Mr. Mobley:
Replying to your memorandum with reference to the application of Mr. Emanuel S. Lowinger for appointment as Commissioner of Deeds for the State of New Jersey, I beg to advise as follows:

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Section 71-301 of the Code of 1933, provides as follows: "Appointment in other States and Territories.-The Governor
shall have power to appoint, in other States and Territories of the United States, commissioners to take and certify the acknowledgement or proof of deeds or conveyances of property in this State, of depositions under commissions or otherwise, of powers of attorney, of wills, executed by persons devising or bequeathing property within the State, and of other instruments in writing required to be attested under the laws of this State." I do not know what has been the practice heretofore with reference to appointing commissioners of deeds to other States. Section fl9403 of the Code of 1933 provides how deeds executed in other States must be attested in order to entitle them to record in this State. They may be attested by a commissioner of deeds for the State of Georgia, appointed under Section 71-301, or by a consul or viceconsul of the United States or by a judge of a court of record in the State or county where executed accompanied by a certificate of the clerk as to the genuineness of the signature of the judge, or by a clerk of a court of record under the seal of the court, or by a notary public or justice of the peace of the State, or State and county, city or county, where executed with a seal of office attached. It will thus be seen that under this section ample facilities are afforded to residents of other states, or citizens of this State, who may be in other states whereby they may execute deeds so as to entitle them to record in Georgia.
However, if the Governor desires to appoint l\Ir. Lowinger as Commissioner of Deeds for the State of New Jersey, he is fully authorized to do so and it is only necessary for him to issue an order to that effect and commission Mr. Lowinger. I think the Governor may appoint as many commissioners of deeds for other states as he may deem necessary.
If it is desired, I will be glad to prepare the necessary order.
GOVERNOR-Section QQ-718 of the Code of 1933 does not apply to bonds issued for circulation in another State
October 29, 1935
Hon. Carlton Mobley, Secretary Executive Department Dear Mr. Mobley:
I have your communication referring to me a letter from Mr. Charles Robert Jones of Rossville, Georgia, with reference to the failure of the Chattanooga Savings Bank and Trust Company to comply with Section QQ-718 of the Code of Georgia which requires every public and private corporation issuing or endorsing any bonds for circulation to file certain information with the Secretary of State. You desire information as to what action should be taken by the Governor upon information furnished him by Mr. Jones.

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The statute in question is penal in its nature. I do not think it applies to bonds endorsed for circulation in another State. Therefore I do not think any penalty could be collected from the Bank in question.
Section 22-720 provides that "No bonds shall be placed in circulation until the provisions
with regard to such bonds shall have been complied with, and any person placing such bonds in circulation without such compliance shall be subject to a fine of $500.00 for every bond so put in circulation." This section seems to me to be a criminal statute and simply to subject any such person to punishment by a fine of $500.00 for every bond put in circulation. It does not provide for recovery by informers. While it has been held by the Supreme Court that the Governor may bring a suit to recover the penalty provided by Section 22-719, I do not think this remedy is exclusive. I think any informer may bring a suit in his own name for the use of himself and the public schools of the county. If, therefore, Mr. Jones considers that the Chattanooga Bank has violated this Section, I know of no reason why he should not bring this suit himself. If he does not consider that the Chattanooga Bank has violated this Section, but does consider that some other person has subjected himself to the penalty referred to by circulating these bonds in Georgia, I think he could lay the matter before the Solicitor General of his circuit, or of the circuit in which the circulation was done, and such person would be subject to indictment and punishment, but not to suit. See in this connection McDaniels v. Gate City Gas Light Co., 79 Ga. 58.
APPROPRIATIONS-Validity of Act appropriating $1,000,000 to Regents
December 2, 1935
Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
Dr. S. V. Sanford, Chancellor of the University System of Georgia, has just conferred with me with reference to the special appropriation of $1,000,000.00 made by the General Assembly at its 1935 Session, by an Act approved March 28, 1935, to the University System of Georgia.
I am advised by Dr. Sanford that the Regents of the University System have filed with you a requisition for $333,333.33, the amount the Act provides shall be made available for use during 1935, and that my opinion is desired as to the legality of this payment.
You are doubtless familiar with the fact that the validity of the Special Appropriation Act was challenged in a suit filed by Mr. Ramsey and others in Fulton Superior Court. The trial court sustained a general demurrer to the petition, which in effect ad-

137
judicated the validity of the proposed payment. This ruling was affirmed by the Supreme Court. While the Supreme Court planted its ruling upon issues which did not involve the validity of the appropriation Act, the decision of the lower court sustaining the general demurrer did adjudicate the validity of the appropriation Act, and that decision stands affirmed. I am therefore of the opinion that there is nothing in the way of the present payment of this appropriation.
I am further of the opinion that the Special Appropriation Act of 1935 is in every respect constitutional and valid and that the only limitation upon the payment of this particular fund during the year 1935 is that the funds "shall be in hand."
It is unnecessary to determine at this time what effect, if any, the passage of the Special Appropriation Act has upon the General Appropriation Act for 1935. It is sufficient here to say that the General Assembly was fully authorized to amend, supersede or repeal any appropriations made by the General Appropriations Act of 1933 for the year 1935. It seems to me that the Special Appropriation Act, in so far as it may conflict with the General Appropriations Act, supersedes the latter.

APPROPRIATIONS-Funds available out of which special appropriation to Regents may be paid

December 4, 1935

Hon. Eugene Talmadge, Governor

State Capitol

Dear Governor Talmadge:

The purpose of this letter is to supplement and clarify my opinion

to you of December fl, 1935, with reference to the payment of the

special appropriation to the Regents of the University System there-

in referred to.

As stated in that opinion the only limitation placed by this special

Act upon the payment of the amount appropriated for the year 1935

was that the funds should be "in hand." I interpret this language

of the General Assembly to mean that the fund thus appropriated

for the year 1935 shall be paid out of any revenue received by the

State Treasurer not otherwise allocated by law and that the special

appropriation Act of 1935 supersedes any contrary provision of the

general appropriations Act of 1933.

I am, therefore, of the opinion that the special appropriation Act

of 1935 reduces by the amount therein appropriated to the Regents

of the University System for the year 1935 the revenue available to

pay appropriations carried in the general appropriations Act for

1935.

tl~\'>:~;~ii;\J,iff~ ~~

As stated in my letter to you of December fl, 1935, the General

Assembly is fully authorized at any time to amend, supersede or

repeal an existing appropriation Act or to reduce the revenue available for the payment of any appropriation th~retofore made. I can

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place upon the special Act of 1935 no other construction than that such was the intention of the General Assembly. As stated in my letter to you of December 2, the Judge of the Superior Court of Fulton County so held on the hearing of the case of Ramsey v. Hamilton, et. al. and his ruling has been affirmed by the Supreme Court.
From what has been said I am of the opinion that it would be legal and proper to pay the said sum of $333,333.33 to the Regents of the University System upon the receipt of such sum by the State Treasurer from general State revenue.
EXTRADITION-Power of Governor in extradition matter where lunacy proceeding pending in this State against fugitive
December 30, 1935
Hon. Eugene Talmadge, Governor State Capitol Dear Governor:
I have your request for my opinion with reference to the extradition of R. A. Bynum, who is alleged to be a fugitive from justice in Alabama.
As I understand the facts there is no question as to the regularity of the proceeding or as to the fact that Mr. Bynum did escape from the penitentiary in Alabama and is now in this State. However, he is alleged to be insane and a lunacy warrant is now pending against him in this State.
The matter is one which is entirely in the discretion of the Governor. There is no statutory provision, or other rule of law, which would require the Governor to suspend the extradition proceedings pending a determination of the sanity or insanity of Bynum. If, however, in the discretion of the Governor, such a suspension would be proper, in my opinion you are authorized to withhold the warrant of extradition pending a determination of the sanity of Bynum, and pending his commitment to the State Hospital in the event he is found to be insane, and a fit subject for such commitment. In my opinion, however, if you deem it proper, you may disregard the pendency of the lunacy writ and grant the warrant of extradition. The matter is one which in my opinion rests entirely within your discretion.
Presumptively the laws of Alabama make ample provision for the treatment of insane convicts, and if Bynum is insane, I know of no reason why the fact cannot be determined by the proper tribunal of Alabama.

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HIGHWAY DEPARTMENT-Validity and construction of Act relating to highway refunding certificates
March 25, 1986
Hon. Eugene Talmadge, Governor State Capitol
My dear Governor: The Department of Law has received the opinion furnished you
under date of March 13, 1936, by Hon. B. S. Miller, Assistant Attorney General assigned to the State Highway Department. This opinion relates to the validity and construction of the Act of the General Assembly of 1933, relating to the Highway Refunding Certificates.
It is our understanding that you desire to know whether the Department as a whole concurs in the opinion furnished you by Mr. Miller.
The Attorney General is out of the office on account of illness, but the questions involved have been considered by all of the other members of the Department.
The opinion of Mr. Miller holds that certain provisions of the Act of 1933 are unconstitutional because, as he interprets them, they are violative of the constitutional amendment of 1931. He holds that certain other provisions of the Act are unconstitutional because, in his opinion, they are not authorized by the constitutional amendment of 1931.
The first three grounds upon which Mr. Miller concludes that the Act is unconstitutional may be summarized into one. In these grounds he states that by the constitutional amendment of 1931 the State simply assumed the indebtedness and that the enabling Act of 1933, in. prescribing the form of certificate, unconditionally commits the State to the payment of the debt. He also states that the constitutional amendment provides that the debt shall be paid solely out of revenue allocated to the State Highway Department.
In relation to these grounds, it is necessary only to call attention to the language of the constitutional amendment. The amendment provides as follows:
"That all indebtedness of the several counties of this State, as well as that of the Coastal Highway District . . . . heretofore incurred, for the construction and/or paving of the public roads or highways (including bridges of the State) . . . . is hereby assumed by the State of Georgia as an indebtedness of the State."
It is not necessary to cite authority that upon the ratification of the constitutional amendment the indebtedness therein referred to became an indebtedness of the State of Georgia, with all of the consequences arising upon the legal and constitutional incurring of any other debt by the State. It is true that the constitutional amendment does not in terms provide that the State agrees to pay the debt, but it does provide that the indebtedness is assumed "as an

140
indebtedness of the State," and this provision necessarily embodies a promise to pay the indebtedness, upon the terms and conditions prescribed by the Act.
Mr. Miller suggests that the enabling Act is unconstitutional because it embodies an unconditional promise to pay, whereas the cop.stitutional amendment provides that the indebtedness shall be paid solely out of revenues allocated to the Sta.te Highway Department. It is true that the constitutional amendment does so provide. It is further true that there is nothing in the enabling Act which is contrary to the provisions of the constitutional amendment because the enabling Act, and the certificates issued under that Act, as set out in the Act, itself, expressly provide that the certificates "are payable at their maturity by the Highway Department of the State of Georgia, or any department which by law may be the successor of the Highway Department, without interest thereon, solely out of the revenues and/or taxes levied, assessed, allocated, and/or appropriated to the Highway Department of Georgia, and to any Department which by law may be the successor of the Highway Department."
The Act thus puts the same condition upon the certificates as is carried in the constitutional amendment. The Act does not violate, or deviate from, the constitutional amendment, but on the contrary, follows both the spirit and letter of the amendment. The Act does not embody an unconditional promise to pay on the part of the State, but a promise to pay only out of revenue allocated to the State Highway Department.
Divisions 4, 5, 6, 7 and 8 of Mr. Miller's opinion hold that the Enabling Act is unconstitutional because it contains provisions, which in his opinion, are not referred to or expressly authorized by the constitutional amendment. He does not hold that these provisions are contrary to the constitutional amendment, but simply that they are unconstitutional because neither expressly nor impliedly authorized by the language of the constitutional amendment.
The Constitution of Georgia provides that
"The General Assembly shall have power to make all laws and ordinances consistent with this constitution and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State." (Code of 1933, Sec. 2-1822)
This general constitutional delegation of power to the General Assembly authorizes it to enact any statute which is not inconsistent with the Constitution. An Act of the General Assembly is not unconstitutional because neither expressly nor impliedly authorized by the Constitution; such an Act cannot be held unconstitutional unless it is contrary to or inconsistent with the Constitution. The fact that the constitutional amendment of 1931 did not expressly prescribe the form of certificate or provide how they should be made payable, or authorize them to be made negotiable, or direct how the governing authorities of the counties shall invest the proceeds of such certificates, in no wise impaired the power of the General As-

141
sembly to make such provisiOns by legislative enactment. There is nothing in any of these provisions of the Enabling Act which is contrary to the constitutional amendment.
In Division 9 of the opinion, Mr. Miller holds that the Enabling Act provides an illegal method of registration, in that the registration should have been limited to surplus certificates, or certificates registered by the county to which they were originally issued.
There is nothing in the constitutional amendment which can be construed to thus limit the right to register the certificates. This being true, it was competent for the General Assembly to provide a method for registration and the provision of the Act so providing cannot be said to be violative of the constitutional amendment. This is further true for the reason that the constitutional amendment itself expressly provides that the General Assembly is vested with authority to enact laws for the purpose of effectually carrying out the provisions of the constitutional amendment.
The concluding portion of Mr. Miller's opinion outlines the purpose of the constitutional amendment and holds generally that under the Enabling Act it is the duty of the State Highway Department to see to the application of the proceeds of the certificates by the counties.
The amount of the indebtedness assumed by the State, as an indebtedness of the State, by the constitutional amendment is defined by the amendment itself as the actual cost of the construction by any county of any public road or highway expended under the supervision of the State Highway Department. It cannot be said, therefore, that the sole purpose of the amendment was to pay the bonded indebtedness of the several counties for construction of State-aid roads. This was not the purpose of the amendment. The purpose of the amendment as expressly stated in the amendment itself, was to repay the counties the amount expended by them for these purposes, whether such amount was or was not represented by a bonded debt of the county. This construction is required by the language of the constitutional amendment defining the word "indebtedness" as the actual cost of the construction of the road.
In the case of Madronah Sales Co. v. Wilburn, 180 Ga. 837, the Supreme Court considered a case in which every possible constitutional attack was made upon the constitutional amendment of 1931 and the Enabling Act of 1933. The Supreme Court, by a full bench, held that the Act was constitutional in every respect referred to, and that the constitutional amendment was properly ratified. This decision settles most of the questions raised by Mr. Miller.
The Enabling Act of 1933 expressly makes the Highway Certificates negotiable instruments, and as we have seen, this provision is constitutional and valid. The duty imposed upon the Highway Department, by Section 8, to proceed to carry the provisions of the Act into effect within four months, necessarily means that it is the duty of the Highway Department to prepare the necessary certificates and issue them to the counties within that time. Manifestly this provision has no reference to payment of the certificates, since

14!t

they were not to mature until more than four months after the pas-

sage of the Act.

The only other duty imposed upon the Highway Department by

the Act is to register the certificates when presented for registration

and to pay them at maturity out of revenue allocated to that

department.

Section 6 of the Act, with reference to registration, expressly

authorizes the owner of any certificate to register it. This does not

mean the county merely. It means any person who may have ac-

quired any certificate from a county. It is true that the Act

provides the purposes to which the proceeds of the sale of any certi-

ficate shall be applied by the county. The Act provides that the

proceeds "shall first be applied by the fiscal or governing authorities

of said political subdivisions" to the bonded indebtedness: that the

political subdivisions are authorized to sell any of the certificates for

the purpose of retiring the bonded indebtedness, or investing in a

sinking fund, and to sell or use any surplus thereof for any other

proper and legal county purposes. These sections impose upon the

fiscal or governing authorities of the county the duty to apply the

proceeds of the certificates to the purposes which the law provides

they must be applied to. No such duty is imposed upon the State

Highway Department, and it is not the duty of the State Highway

Department to invest the proceeds of any certificate issued to any

county, or to superintend the county in making such investment.

Neither is it the duty of the State Highway Department to expend

the proceeds of any certificate issued to any county, or to supervise

such expenditure by the county, or to see to the application of the

proceeds by the county to the purposes provided for by the Act. All

of these matters fall within the jurisdiction of the county authorities.

These authorities are public officers, created by law, whose duties

are prescribed by law. They are accountable to their counties, and

to the people of their counties for any diversion of the proceeds of

these certificates. The State Highway Department is under no

duty or responsibility to control or seek to control the county au-

thorities in their handling of these certificates. If any county au-

thority violates the provisions of the Act, he is responsible for such

violation, but the State Highway Department is not.

It is our opinion and judgment that when one of these certificates

is presented at maturity by a transferee from the county, it is the

duty of the State Highway Department to pay it without any refer-

ence to the use made by the county of the fund received by it from

the discount of the certificate. It is our opinion that the State High-

way Department has no authority to inquire into such matters, but

that it discharges its full duty under the law when it pays the amount

of the certificate to a holder who presents it for payment under a

transfer regular on its face. Unless the State Highway Depart-

ment has information that the county unlawfully disposed of the

proceeds of the certificate and that the transferee was a party to and

had knowledge of such unlawful disposition, the State Highway

Department is not authorized to go behind the transfer of the certi-

ficates.



14S
It is our further opinion that the same rule applies when a certificate is presented by a person who merely holds the same, without any transfer, unless the State Highway Department has information that possession of such certificate was acquired by the person holding the same in an unlawful manner, or unless there has been a restricted indorsement by the county. This is true for the reason that these certificates are made payable, under the statute, to "the named county or bearer and it is not necessary to a transfer of title that they should be transferred in writing. We think, however, that the State Highway Department would be authorized, if in its discretion such action is proper, to require a transfer in writing from the county as evidence that the county voluntarily parted with title to the certificates. I do not think the Department would be authorized to require a written transfer except for that purpose.
With regard to the registration of the certificates, we are of the opinion that the rule above stated with reference to payment applies to registration, and that it is the duty of the Highway Department to register any certificate presented by a holder thereof with a transfer regular on its face, unless the Highway Department has information that the transfer was for an unlawful purpose and that the transferee either participated in such unlawful purpose, or had actual knowledge thereof. The State Highway Department is authorized to register any certificate offered for registration in the name of the person registering it, without a written transfer. We do not think, however, that it can be required to register a certificate not transferred in writing, but that it is authorized to require transfers in writing if in its discretion such action is deemed proper, as a prerequisite to registration.
For all of the reasons stated in this letter, we cannot concur in the opinion of Mr. Miller. It is our considered judgment and opinion that the Enabling Act of 1933 is not unconstitutional, but on the contrary is in every respect valid.
It is our further considered judgment and opinion that the duties of the State Highway Department with reference to the payment and registration of these certificates is as stated above. When the State Highway Department pays one of these certificates to a transferee, holding under a transfer regular on its face, it is absolved from all further duty and liability in connection therewith and cannot be held accountable to the county or any other person.
INSURANCE-Qualification of mutual insurance companies to underwrite officers bonds in Georgia
April 7, 1936 Ron. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I am in receipt of your memorandum referring to me a letter from Mr. L. M. Peet, of the Farmers Union Life Insurance Company of Des :Moines, Iowa, making inquiry as to whether or not a mutual

144
insurance company can underwrite public officers bonds in Georgia, and if so, as to the requirements.
The statute provides that "Any fidelity insurance company or such other corporation or
company that may do a fidelity insurance business, incorporated and organized under the laws of this State, or of any other state or a foreign country, for the purpose of transacting business of fidelity insurance companies, which has a paid capital of not less than $250,000.00, and which has complied with all requirements of law for license to transact business in this State, may, upon proper proof thereof, and upon production of evidence of solvency and credit, satisfactory to the judge, head of department, or other officer or officers authorized to approve and accept bonds, be accepted as surety upon the bond of any person, company, or corporation required by law to execute bonds, in lieu of any surety or sureties now required by law." (Code of 1933, Sec. 56-1102) The statute also provides as follows:
"Solvent guaranty companies, surety companies, fidelity in- surance companies, and fidelity and deposit companies, incorporated and organized under the laws of this State, or any other State of the United States, for the purpose of transacting the business of fidelity insurance, which have a paid-up capital of $250,000.00, and which have complied with all the requirements of law as to license required by the State, may, upon proper proof thereof, and upon production of evidence of solvency, be accepted upon the bonds of all city, county, and State officers; and the various officers, whose duty it is to approve the sureties upon such bonds, are hereby authorized to accept such company or companies as one of the sureties, or the only surety, upon such bonds as the solvency of such company may warrant." (Code of 1933, Section 56-1104) Section 56-1107 of the Code of 1933 provides that all such surety companies doing business in this State, which offer or undertake to become surety upon any bond required by law of city, county and State officers, shall be required to deposit with the Treasurer bonds of the United States or bonds of this State, of the face value of $25,000.00.
There is nothing in the statute which would prevent a mutual surety company from becoming surety on a bond of this sort, provided such company has a minimum paid-up capital of $250,000.00.
I do not think, however, that it is necessary for a surety company to meet any of the requirements of the Georgia law in order to enter upon a valid contract to indemnify the surety on the public bond of any State officer against loss. The surety company which signs the bond, and which under the bond becomes liable directly to the State, must meet the requirements of the Georgia law. I think the surety company which is primarily liable to the State, may then make such contracts of indemnity as may be agreed upon between the parties with any other surety company without any reference to whether the second surety company has met the requirements of the Georgia .

145
law. All the Georgia law requires is that the company actually executing the bond to the State be qualified in the way and manner provided by law. The State is not concerned with any contract of indemnity which may thereafter be entered upon by the surety company and some other company.
INSURANCE-Qualification of mutual insurance companies to underwrite public officers bonds in Georgia
April 13, 1936
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your memorandum of the ninth referring to me a letter from L. M. Peet of the Farmers Union Life Insurance Company of Des Moines, Iowa, in which he requests a supplement to the letter I wrote you under date of April seventh.
I am of the opinion that a mutual insurance company doing business in the method described by Mr. Peet, cannot qualify as a surety company, acceptable as surety on the bonds of public officers, in this State.
Before a company may engage in this business it must be chartered and organized for the purpose of writing fidelity insurance and surety bonds and must have paid up capital stock of at least $250,000.00.
I do not think the language of our statute can be construed to refer to assets in the amount of $250,000.00. The expressions "paid capital," and "paid up capital," manifestly refer to subscriptions for capital stock in that amount which have been paid in full and not to surplus funds.
None of the provisions of our statute with reference to mutual insurance companies deals with fidelity insurance or surety bonds, but in every case where mutual insurance companies are referred to it is with reference to contracts to indemnify against loss. The contract between the State and the surety on the bond of a public officer is not one of indemnity in the ordinary sense, but an agreement whereby the surety becomes secondarily liable for any breach of duty of the public officer. Such a contract necessarily presupposes a contracting party wholly separate and apart from both the officer and the State. No such contract could exist where the surety is a mutual company holding only assets in which either the State or the officer has a community of interest with other policy holders.

146
TAXATION-Tax assessed against building and loan association presidents does not apply where association does not lend to persons not members and it had no capital stock
May 20, 1936
Hon. Eugene Talmadge, Governor State Capitol My dear Governor:
This will acknowledge your inquiry of May 19, relative to the tax assessed against presidents of building and loan associations in this State.
This tax, I think, is not required of presidents of mutual building and loan associations as defined in Section 92-2407 of the Code of 1933. Where a building and loan association is organized on a purely mutual basis and conducts its business by limiting loans to members, and does not loan money belonging to any person other than its members, and has no capital stock, the president of such association will not be liable to the $25.00 tax. '
In addition to the requirements just stated, I am of the opinion that such an association must confine its operations to a single county and that if it does business in more than one county or accepts money for the purpose of making loans or makes loans to others than its members, then the president of such association would be subject to the $25.00 tax.
INSURANCE-Qualification of insurance companies to do casualty business.
May 23, 1936
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I am in receipt of your memorandum referring to me for an opinion a letter from Mr. Len B. Guillebeau, together with a file of correspondence with the Insurance Department, with reference to Lloyds America, of San Antonio, Texas.
The particular question upon which you ask an opinion is whether the laws of Georgia require a company engaged in the casualty insurance business to make a deposit with the State Treasurer.
In reply I beg to advise that the laws of this State do not require such a deposit.
Mr. Guillebeau refers to the Act of 1935 which requires certain deposits of "all fire, marine, and inland insurance companies." In my opinion the words "inland insurance companies" cannot he construed to embrace all insurance companies. Inland insurance has a very definite meaning in insurance law. It is used in conjunction with marine insurance, and an inland insurance company is simply an insurance company insuring against the hazards of inland navigation. A marine insurance company, in the strict sense of

147

the word, is one insuring against perils of the sea. Section 56-803 of the Code of Georgia of 1933 empowers fire insurance companies to insure all classes of property against fire and the hazards of ocean or

inland navigation. I think the deposit statute must be construed in

connection with this statute. When so construed it patently has no

application to a casualty insurance company.

,

\Vhile a casualty insurance company is not an accident insurance company within the strict sense of the word, since it does not insure against damage to the assured, but simply contracts to indemnify the assured against loss by reason of damage or injury sustained by third persons, the Insurance Commissioner has construed the term accident insurance company to cover casualty companies, within the meaning of the statute which requires these companies to show a a deposit with the Insurance Commissioner of their home State of at least $100,000.00. This requirement is made of life companies and of accident insurance companies, and the Insurance Commissioner of Georgia has consistently required casualty insurance companies to show compliance with this Section. He had done so, I find on investigation, with reference to Lloyds America of San Antonio, Texas.

At Mr. Guillebeau's suggestion, I have made some investigation of this company. It has been duly licensed by the Insurance Commissioner of Georgia and has complied with all the requirements of the Georgia law. It seems to be entirely solvent. While it is not a very large company, its balance sheet for 1935 shows a net worth of over $200,000.00 to which there should be added the reserves set up for the protection of policy holders. The report of the company shows reserves for policy holders, including net worth, of more than $600,000.00. Of course, I have no way of knowing whether its investments were prudently made or not. Apparently, they have the approval of the Insurance Commissioner of Texas.

I also made some investigation with reference to the outstanding claims against this company. I am advised that it has only two pending claims in Georgia. One is the claim represented by Mr. Guillebeau and the other is a claim growing out of an accident by a motor carrier in which the person injured has never filed a completed

proof of damage. This information was furnished to the Public Service Commission by the State Agent of the company. I presume it is reliable.

In this connection I might state that the laws of Georgia require motor carriers to insure their liability. I am advised by the Public Service Commission that a great many insurance companies absolutely refuse to write this sort of business, and that the only companies who will write the business at anything like reasonable rates, are companies which do business on the Lloyds' plan, or some similar plan. I am not sufficiently informed with reference to insurance matters to know whether the Lloyds' plan of operation is a good plan or a bad plan. It seems to be widely used throughout the United States and foreign countries. I am advised that Lloyds America

148
reinsures all of its liabilities beyond $2,500.00 to one person, and $5,000.00 growing out of one accident, in Lloyds of London.
While there is no law requiring a casualty insurance company to make a deposit with the State Treasurer, the Public Service Commission must approve these policies insuring the liability of licensed carriers. I think the Public Service Commission would be authorized to withhold its approval of a policy written by any company, even if licensed by the Insurance Commissioner, if in its opinion the financial condition of the company did not warrant such approval. However, such a policy, if adhered to by the Public Service Commission, might make it very difficult for licensed carriers to obtain the insurance which the law requires them to carry.
GENERAL ASSEMBLY-Validity of resolution authorizing refund of certain taxes
August I, I936
Hon. Eugene Talmadge, Governor State Capitol
Dear Governor Talmadge: I have your recent request for an opinion with reference to the
Resolution approved March 28, I935 (Georgia Laws I935, p. I304), authorizing the payment to certain lumber manufacturers of the amount of the special tax on lumber dealers collected from such manufacturers in the years I928 and I929. The Resolution in question recites that the named companies paid this tax; that it went into the State Treasury, and was disbursed by the Treasurer to the Department of Forestry as provided by law. It is further recited that the Act under which the tax was paid was declared unconstitutional by the Supreme Court in the case of Case-Fowler Lumber Company v. Winslett, I68 Ga. 808.
The question which has given me a great deal of concern is whether or not this resolution is valid in view of Article 7, Section I6, Paragraph I of the Constitution of Georgia, which provides as follows:
"The General Assembly shall not, by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation or association." Section 43I7 of the Code of I9IO (Code of I933, Section 2Q-I007) provides in substance that payment of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence, are deemed voluntary and cannot be recovered back, unless made under such circumstances as to amount to duress. It has been repeatedly held by our Supreme Court that taxes voluntarily paid, even under an unconstitutional law, cannot be recovered back, unless paid under duress. See Dennison Manufacturing Co. v. Wright, I56 Ga. 789; Taranto v. Richardson, 50 Ga. App. 851.

149
It is my opinion that the paragraph of the Constitution quoted in this letter takes from the General Assembly the power to appropriate money for the payment of a moral obligation of the State.
The State of Georgia may not be sued in any court, without its consent. Accordingly, even if a taxpayer should pay taxes under such circumstances as to give rise to a cause of action whereby he might recover them, he could not do so by suit against the State, because of the State's immunity from suit. However, such a cause of action would constitute not a mere moral obligation of the State but a legal obligation, which could be enforced by suit if the State were not immune.
I am of the opinion, therefore, that the General Assembly may constitutionally appropriate State funds in payment of such a legal obligation of the State, even though the person in whose favor the appropriation is made could not obtain judgment against the State because of its immunity from suit.
It has been repeatedly held by our Supreme Court, and by the courts of every other jurisdiction, that every law enacted by a lawmaking body should be presumed to be constitutional and valid unless the contrary clearly appears.
Since nothing to the contrary appears, it must be presumed that the General Assembly, in enacting the Resolution of 1935, had before it facts which clearly showed that the obligation upon the State to make these payments was a legal obligation and not a mere moral obligation. In other words, it must be presumed that the facts before the General Assembly showed that the payments were made under such circumstances as to give rise to a cause of action in favor of the taxpayers and against the State, which could not be maintained because of the State's immunity from suit.
So construing the statute, which must be done in the absence of facts indicating the contrary, I am of the opinion that the Resolution is valid and that it authorizes these refunds.
TAXATION-Street carnivals operated in connection with agricultural fairs not exempt from payment of occupation tax
September 10, 1986
Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your letter of recent date inclosing a communication from Mr. J. R. Ham, Editor of the Crisp County News, with reference to the tax on street carnivals.
The General Tax Act of 1935 which became effective January 1, 1936, levies the same tax against str~et carnivals operated in connection with agricultural fairs as is levied against any other street carnival or combination of shows.
The old General Tax Act which was e.fiective until December 31, 1935, provided for the payment of the flat sum of $25.00 per week on

150
account of carniv'als and midway combinations operated in con~ nection with agricultural fairs, while requiring the payment of the stipulated fee for street carnivals and midway combinations not so operated. The General Tax Act of 1935 left out this exception in favor of agricultural fairs and as the law now stands the same tax is required where such carnivals or midway combinations are operated in connection with agricultural fairs as in any other case.
I am of the opinion that under the General Tax Act of 1935, the tax collector will be required to collect the same amount of taxes from the carnival operated with the fair as in any other case, since the law makes no exception as heretofore.

INSURANCE-Publication of semi-annual statement by insurance companies

September 17, 1936

Hon. Eugene Talmadge, Governor

State Capitol

Dear Governor Talmadge:

I have your communication referring to this department a letter

from the North Carolina Mutual Life Insurance Company with

reference to publication of the semi-annual statement required by

the Constitution and laws of Georgia.

Article 3, Section 12, Paragraph 5 of the Constitution of Georgia

provides that the General Assembly shall compel all insurance com-

panies in this. State or doing business therein, to make semi-annual

reports to the Governor, and print the same at their own expense,

for the information and protection of the people.

Section 56-402 of the Code of 1933, requires, however, insurance

companies applying for a license in Georgia to file with the Insurance

Commissioner a statement under oath of its president and secretary

setting forth the condition of the company in detail.

Section 56-403 of the Code of 1933 provides that this statement of

the insurance companies must be renewed annually on the first day

of January, or within 60 days thereafter and must show the condition

of the company on the 31st day of December. In conformity with

the constitutional provision referred to, this section of the Code

further provides:



"In addition to this statement, all companies including co-

operative or assessment life insurance companies doing business

in this State, shall, through their chief officer or agent residing

in this State, make to the Governor semi-annually statements on

the first day of January and July of each year or within 60 days

thereafter. The January statement shall contain a full and exact

report of their condition on the 31st day of December next pre~

ceding; said statement to be made in accordance with the terms

and conditions set forth and required under the preceding section,

which shall be sworn to by the officer or agent making the same.

The statement for July shall contain a report in short form of

151

income, assets, expenditures, and liabilities in gross, as of the

30th day of June preceding, and be sworn to by the officer or

agent making the same. At the time of making such report to the

Governor each company shall publish at its own expense a

duplicate thereof in a newspaper of general circulation published

in this State."

,

It will thus be seen that the statute does not require such a de-

tailed statement for July but does require a detailed statement for

January.

I am of the opinion that the statement of the Atlanta Life In-

surance Company for the six months ending June 30, 1936, suffi-

ciently complies with the statute as a July statement since it sets

forth income, assets, expenditures, and liabilities in gross, as re-

quired by the statute.

I do not think, however, that this statement would be a sufficient

compliance with the statute for the January publication, since the

statute requires that this statement shall contain a full and exact

report of the condition of the company on December 31st next

preceding, and be made in accordance with the terms and conditions

set forth by Section 56-402.

INSURANCE-Back salary of Deputy Insurance Commissioner
October 26, 1936 Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
I have your letter of recent date requesting my opinion with reference to payment of back salary which may be due Mr. Lewis A. Irons for services rendered as Deputy Insurance Commissioner.
The salary of the Deputy Insurance Commissioner is fixed by law at three thousand dollars per annum. The statute provides that this official
"Shall be paid out of the State Treasury as is now provided by law for the payment of salaries of all State House officers, a salary of three thousand dollars per annum and he shall not receive any . other fee or compensation whatsoever." The general appropriations Act of 1933 made a lump sum appropriation of $110,000 for each of the years 1934 and 1935 for the expense of operation of the office of the Comptroller General, except the expenses incurred in the administration and collection of the Motor Carriers Tax Act. While there is no express reference to the Insurance Division of the Comptroller General's office other than a provision that the tax of one tenth of one per cent. of premiums of fire insurance companies, levied for the purpose of maintaining the State Fire Inspection Service, shall be paid into the State Treasury, it was clearly the Legislative intent that all of the expenses of operation of this department, including the salaries fixed by law, should be paid from the appropriation.

152
If Mr. Irons received, during any part of his service, less than the salary fixed by law, in my opinion the State is still due him this difference. I do not think, however, such difference could be paid from the general fund in the State Treasury for such period as the legislature had provided for the payment of this salary out of the funds appropriated to the Comptroller General's department, since the plain legislative intent, as expressed in the general appropriations Act of 1933, was that this salary should be paid out of the lump sum appropriation made to this department.
If the Comptroller General now has funds which may be used for this purpose, I can see no reason why he should not pay lVIr. Irons any sum which might be due him as back salary.
GOVERNOR-Governor without authority to pardon a person before conviction of a crime
November 4, 1936
Hon. Eugene Talmadge, Governor State Capitol Dear Governor:
Replying to your letter of this date requesting my opinion as to whether or not the Governor may pardon a person accused of a crime before his conviction, I beg to advise as follows:
Article V, Section I, Paragraph XII, of the Constitution provides that the Governor
"Shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to the manner of applying for pardons." Code of 1933, Section 2-2612. In the case of Dominick v. Bowdoin, 44 Ga. 357, the Supreme Court had under consideration the power of the Governor to grant pardons under the Constitution of 1868 and also the similar provision in the Constitution of 1798. The Constitution of 1868 provides as follows:
"He (the Governor) shall have power to grant reprieves and pardons, to commute penalties, and to remit any part of a sentence for offenses against the State, except in cases of impeachment." The corresponding provision of the Constitution of 1798 was as follows:
"He (the Governor) shall have power to grant reprieves for offenses against the State, except in cases of impeachment, and to grant pardons, or to remit any part of a sentence in all cases, after conviction, except for treason or murder, in which case he may respite the accused, and make report thereof to the next General Assembly, by whom a pardon may be granted." It will be noted that the Constitution of 1798, in this respect, was substantially identical with the Constitution of 1877, except that the

153
pardoning power granted by the Constitution of 1798 did not extend to cases of murder. The Supreme Court held in the case just cited that under the Constitution of 1868 the power of pardon granted to the Chief Executive contained only the limitations upon that power which limited the Royal prerogative in Great Britain, by the Act of William the Third, and that the power could be exercised under the Constitution of 1868 before conviction.
In discussing the question, however, the court stated that from May 23, 1798, down to the Constitution of 1868 the power of the Governor was limited by the Constitution both as to the nature of the offenses to be pardoned and also as to the time for the exercise of the power which could only be exercised after conviction.
In view of the decision by the Supreme Court in this case, which was rendered before the adoption of the Constitution of 1877, it is my opinion that the plain purpose of the framers of the Constitution in including the words "after conviction," in the quoted provision of the Constitution was to limit the power of the Governor in all cases so that the pardoning power could be exercised only after a conviction.
I am, therefore, of the opinion that the Chief Executive may not exercise the power to grant a pardon until there has been a conviction by a court of competent jurisdiction.
EDUCATION-State not authorized to furnish free textbooks to children enrolled in private schools
November 10, 1936
Hon. Eugene Talmadge, Governor State Capitol
Dear Governor: This will acknowledge your letter of November 4th, in which you
state as follows: "Do you think the State can furnish free school books-the
four that are being furnished to public schools-to children of public school age who are enrolled in private schools of this State.". Article 8, Section 1, Paragraph 1 (Code of 1933, Section 2-6601) of the Constitution is as follows:
"There shall be a thorough system of common schools for the education of children as nearly uniform as practical, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State but separate schools shall be provided for the white and colored races." Article 7, Section 1, Paragraph 1 (Code of 1933, Section 2-4901) of the Constitution, provides:
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes, only:
"For educational purposes in instructing children in the elementary branches of an English education only."

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The General Assembly has never undertaken to exercise the right of taxation under the constitutional provision last quoted, for the purposes of providing funds for the purchase and distribution of free textbooks by the State to the public schools of the State.
The General Assembly, at its 1935 session, by an Act approved March 23, 1935, in Section 10 made the following provision:
"Be it further enacted by the authority aforesaid, that funds derived from this Act shall be apportioned as follows: An amount not to exceed three per centum (3%) of the revenue annually shall be paid to the State Revenue Commission for enforcing this Act; the remainder shall be set apart and devoted for the support of the common schools of the State, and used for the purpose of furnishing free textbooks to the children attending common schools, and it is hereby declared such purpose to be for and in support of common schools." The language of the Act of 1935, supra, is clear and unequivocal. It states: "The remainder shall be set apart and devoted for the support of the common schools of the State and used for the .purpose of furnishing free textbooks to the children attendin!! the common schools, and it is hereby declared such purpose to be for and in support of common schools." We have a rather complete public or common school system in the State. We have a State Superintendent of Schools, State Board of Education, county boards of education, boards of education for independent school systems, local trustees, State supervisors, county superintendents, superintendents of city schools and teachers, all deriving their sustenance from moneys allocated, set aside, and by public sanction, used for the support of the common schools of the State. Our courts have decided that common schools shall be free to all the children of this State and that a matriculation, entrance, admission, or tuition fee cannot be charged as a condition precedent to admission to a public school forming part of the general school system of the State. Your letter states that the children are enrolled in private schools of this State. These are evidently schools supported by admission, matriculation or tuition fees and operated by private individuals, not officials or employees of the State and not under the control or direction of the State or of any of its officials. However beneficient may be their aims they are private enterprises over which the State has no control or jurisdiction. Our Constitution also provides that the General Assembly shall not by vote, resolution or order grant any donation or gratuity in in favor of any person, corporation or association. I am of the clear opinion the State would not be authorized to furnish free textbooks to children of public school age who are enrolled in private schools in this State.

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ELECTIONS FOR JUSTICE OF PEACE-Not duty of Governor to furnish election supplies, but is duty of Ordinary

November 13, 1936

Hon. Eugene Talmadge, Governor

State Capitol

Dear Governor Talmadge:

.

I have your letter of the lOth inclosing communications from Hon,

J. E. Butler, Ordinary of Wilkinson County, and Hon. J. C. Evans,

Ordinary of Warren County, and requesting my opinion as to whether

it is the duty of the Governor to furnish election supplies for holding

elections for justices of the peace.

In my opinion it is not the duty of the Governor to furnish these

supplies. The Australian Ballot Law makes it the duty of the Ordi-

nary to provide and furnish at the expense of the county, official

ballots, and all the election supplies required by law, such as blanks

for lists of voters, tally sheets, etc., for all elections other than the

primary elections. In the case of municipal elections such supplies

are furnished at the expense of the municipality.

It seems clear that under the Australian Ballot Law it is the duty

of the Ordinary to furnish supplies for elections for justices of the

peace since candidates for such offices are required by that law to file

notice of their candidacy with the Ordinary.

In counties where the Australian Ballot law is not in force the law

is somewhat ambiguous and makes no provision for furnishing these

blank forms for elections for justices of the peace. However, it does

provide for the Ordinary to appoint the election managers and the

general law embodied in Sections 23-701 and 23-703 of the Code

empowers the Ordinary to exercise such powers as are granted him

by law or as are indispensable to his jurisdiction.

While it is the duty of the Governor to prescribe the ballot form

and the form of other blanks required under the law to' hold the

general election for members of the general assembly and other

State house officials, I do not think this rule applies to elections for

justices of the peace since they are not elected by the people of the

whole State but in each case by the voters of their respective dis-

tricts.

In my opinion the only duty resting upon the Governor with

reference to elections for justices of the peace is to receive the re-

turns which are required to be transmitted to him by the managers

and issue his commission to those elected.

TAXATION-Procedure for reimbursing certain taxpayers and funds from which such reimbursement may be made

November 18, 1936 Hon. Eugene Talmadge, Governor State Capitol Dear Governor Talmadge:
At the request of the Chairman of the State Revenue Commission I have examined the file in connection with the claim of certain lumber dealers in Columbus for a refund of taxes paid in 1928 and 1929 as authorized by a resolution approved March 28, 1935.

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On August 1, 1936, I furnished you an opinion holding that this resolution is valid and authorizes payment to the persons named therein in accordance with the terms of the resolution.
The resolution itself makes an appropriation ot reimburse these taxpayers and directs their reimbursement out of any funds in the Treasury not otherwise appropriated. There is nothing in the general law which would authorize the State Revenue Commission to make this refund out of funds appropriated to the State Revenue Commission. Under the law the particular tax was allocated to the Department of Forestry. However, this does not, in my opinion invalidate the resolution or prevent reimbursement of the taxpayers out of general funds since the allocation was to support a department of State Government which might have been supported by appropriations from general tresury funds.
In my opinion, the refund, when made, must be made from the general fund and should be made on a warrant drawn by the Governor on the general fund. \Vhether there is any surplus now in the general fund from which this refund may be made, or any such "funds in the treasury not otherwise appropriated," will of course, have to be determined by the Governor and the State Auditor. If such funds are available and now in the Treasury, in my opinion this reimbursement may be made from any such surplus.
TAXATION-Refund of income taxes
November 18, 1936
Hon. Eugene Talmadge, Governor State Capitol
Dear Governor Talmadge: Mr. Carreker, Chairman of the State Revenue Commission, has
brought me your letter to him of November lOth, together with a letter from Governor Slaton dated November 7th and another dated November 13th, with reference to refund of certain income taxes paid by H. A. Alexander, Mrs. Sallie W. Chipley, and Mrs. Annie Inman Grant under the Income Tax Act of 19~9.
You asked Mr. Carreker to obtain a ruling upon the question of whether the fact that these taxpayers brought suits against the State Revenue Commission to recover these taxes, which suits have been adjudicated against them, alters the authority of the Governor to recognize the claims as being valid or invalid.
The decision of the Court of Appeals determines that as a matter of law these taxpayers are not entitled to recover this money from the State. In rendering its opinion, the Court of Appeals did not have before it Section 92-6502 of the Code of 1933, and that section of the Code was not involved or passed upon by the Court of Appeals. It is my opinion, however, that this section of the Code does not authorize the Governor to refund these taxes. Therefore, the decision of the Court of Appeals does not alter the authority of the State to recognize the claims as being valid, because no such authority existed.

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I have carefully read the letters written to you by Governor Slaton. I recognize the full force of the argument he presents to the effect that these taxpayers paid money which they did not legally owe at the time they paid it and that, therefore, it would be unconscionable for the State to retain it. The argument which Governor Slaton presents would be very effective if the transaction were one between two individuals. Such is not the case. The transaction is one between the State and individual taxpayers. Powers of public officers are defined by law and all persons dealing with them must take notice thereof. A public officer being limited by law, can only do things which the law authorizes him to do. The question in each case is not whether the action he is called upon to perform is right or wrong, but whether he is authorized by law to perform it. Except in those cases where the exercise of executive or administrative discretion is called for, public officers must be governed by the law, and the discretion which may be vested in them in any case must be exercised in conformity with the law. To hold otherwise would be to permit a public officer to determine for himself what the law should be in any given instance and follow it.
I would be derelict in my duty if I failed to advise you that in my opinion Section 9~-650~ of the Code of Georgia does not authorize you to refund these taxes. This section is taken from the Act of 1845, an Act passed long before the adoption of the Constitution of 1877. It might well be said that it is violative of the Constitution of 1877 and was superseded by that instrument. However, it is not necessary to pass upon that question. The section was enacted long before Section ~Q-1007 of the Code of 1933 appeared in our law. It might be said that Section 9~-650~ was superseded by the later statute providing that voluntary payments of taxes and other claims may not be recovered back. However, it is not necessary now to determine that question. I might point out in this connection, however, that the Court of Appeals in the decision referred to did not hold that a recovery could not be had because the suit was one against the State, but did hold that recovery was barred under the express language of the Income Tax Act of 19~9.
In my opinion, in so far as Section 9~-6501 of the Code of 1933, if valid, may have been applicable to payments of Income taxes, it was plainly superseded and repealed pro tanto by the Income Tax Act of 19~9. This is true for the reason that that Act itself provides the manner and method whereby a taxpayer may recover taxes illegally exacted of him under that Act. The taxpayer lost in the present case because he had wholly failed to avail himself of the remedy afforded by the Act of 19~9. Having done so, it is my opinion that he can not recover the taxes paid and the Court of Appeals so held. My further opinion is that there is no agency of the State which is authorized to make refund to him. I might state further that in my opinion and Act of the General Assembly expressly providing for the refund of these taxes under the facts as they actually exist would be unconstitutional and void.

158
I might further state in this same connection that it is my understanding that when the original returns were filed by the taxpayers here involved, they took credit for deductions which the Supreme Court has since held were not allowable, and if they were entitled to any refund they would have to account for these unallowable deductions. I do not know what effect this would have in each particular case, but I am advised by the Income Tax Division of the State Revenue Commission that it would reduce the amount of the overpayment by Mrs. Grant to a little more than $30.00. This fact, of course, has nothing to do with the principle involved.
If I could conscientiously advise you that you were authorized to make these refunds I would be more than glad to do it. I cannot do so, because, in my opinion, the plain language of the Income Tax Act of 1929 precludes the refund. As stated, in my opinion I would be derelict in my duty if I failed to so advise you. The statute contemplates that unless the taxpayer follows the procedure outlined by the Act, any amount which he may pay becomes the property of the State which it is authorized to place in its treasury and use for its public purposes. To hold that a taxpayer may obtain such a refund, without even undertaking to comply with the requirements of the statute, would be to destroy a legislative intent which is too plainly expressed to leave room for doubt or admit of argument.
TAXATION-Professional taxes of employees and officials of Health Department
December 12, 1935
Dr. T. F. Abercrombie, Director Department of Public Health State Capitol Dear Dr. Abercrombie:
I have your letter of December 6th requesting my opinion as to whether county health officers, and the physicians and sanitary engineers employed by the Department of Public Health are subject to professional taxes.
The practice of medicine is defined by Section 84-901 of the Code of 1933 as follows:
"The terms 'practice of medicine,' 'to practice medicine,' 'Practicing medicine,' and 'practice medicine,' as used in this chapter, are hereby defined to mean holding oneself out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever, or the maintenance of an office for the reception, examination and treatment of persons suffering from disease, defect or injury of body or mind, or attaching the title 'M. D.,' 'Oph.,' 'Dop.,' 'Surgeon,' 'Doctor,'

159
either alone or in connection with other words, or any other words or abbreviations to his name, indicating that such person is engaged in the treatment or diagnosis of disease, defects or injuries of human beings." The General Tax Act levies a tax of $15.00 upon every practitioner of medicine, and the other physicians taxed, "charging for their services as such," and expressly makes the validity of their licenses contingent upon the payment of the tax. A county health officer is prohibited by law from engaging in the private practice of his profession. It is true that no one but a licensed physician is eligible for appointment as a county health officer, but the duties prescribed for county health officers are.not such as torequire the services of a licensed physician. I am of the opinion, therefore, that the requirement that only a licensed physician shall be eligible for appointment relates to the qualifications of the appointee at the time of his selection, and does not contemplate that he shall be required to preserve his status as a licensed physician during the term of his service. County health officers are not engaged in the practice of medicine. They do not do any of the things defined by the statute as the practice of medicine but are engaged almost entirely in sanitary work, which relates to general conditions and not to the health of any particular individual. It is true that county health officers do administer preventative serums where such work is undertaken as a public health measure. However, they do not prescribe the serum, or determine the advisability or necessity for administering it. They simply perform the act of administering the serum, which may be done by any trained nurse, and which does not involve the practice of medicine.
I am of the opinion, therefore, that if county health officers devote themselves to the duties usually performed by county health officers and do not engage in any private practice, they are not subject to the professional tax during the time they are so engaged. If, however, a county health officer engages in the practice of medicine within the meaning of the law, even though he may not charge the patients for whom he practices for his services, but is compensated by the county, he is nevertheless subject to the tax. In my opinion a physician engaged in the practice of medicine as a part of his official duties as a state or county employee is subject to the professional tax to the same extent as if he were practicing for private citizens. The fact that he may be compensated by the state or county, and not by the private citizen, will not change the rule.
For the reasons stated with reference to county health officers, I am of the opinion that the Director and physicians connected with the State Board of Health are not subject to the professional tax. The State Department of Public Health is primarily engaged in supervising matters relating to the preservation of the public health, matters of quarantine, investigation as to the existence and scope of epidemics, the collections and distribution of vital statistics and the examination of laboratory specimens. Neither the Department nor

160
its members are engaged in the practice of medicine within the meaning of that term as defined by the court.
If any members of this Department should engage in the practice of medicine within the meaning of that term as defined by law, in my opinion he would be subject to the tax, even though he is compensated for his services by the State.
The statute requires the Director of the Department of Public Health to be a graduate physician authorized to practice medicine and surgery in this State of not less than five years experience. In my opinion, this requirement refers to eligibility for appointment and does not require that the status of the Director as a licensed physician shall be preserved during his tenure of office.
With reference to the engineers connected with the Department of Public Health, in my opinion the rule is different. The statute requires payment of the professional tax by every civil, mechanical, hydraulic or electrical engineer. If you have engineers employed in your department, who are engaged in performing duties ordinarily and usually performed by civil, mechanical, hydraulic or electrical engineers, in my opinion they are subject to the professional tax. This is true for the reason that they are engaged in the practice of their profession and the fact that they are compensated for their services by the State, and not by private firms does not operate to relieve them from the tax. Their situation is analogous to the Attorney General and his assistants, who are required by law to devote their entire time to the services of the State. However, the services they perform for the State are those usually performed by practicing attorneys, and as such they are subject to the professional tax. I might say in this connection that the Attorney General and each of his assistants, regularly pay the professional tax.
HEALTH-Salary of County Health Commissioner, how fixed
February 7, 1936
Dr. T. F. Abercrombie, Director Department of Public Health State Capitol Dear Dr. Abercrombie:
I have your letter of February 4th requesting my opinion as to whether or not the salaries of the public health personnel in any county are fixed by the County Board of Health or by the Board of County Commissioners.
Section 88-306 of the Code of 1933 provides in part as follows: "In sanitary districts composed of one or more counties, the
Commissioner of Health shall receive from the county or counties a salary to be fixed by the County Board of Health, or by the Boards of Health of the counties composing the sanitary district, as the case may be, in the sum of not less than $1,200 per annum." This statute plainly vests in the County Board of Health the duty to fix the salary of the County Health Commissioner. In case

161

deputy commissioners are employed, in my opinion, their salaries

should also be fixed by the County Board of Health.

It is my opinion that the Board of County Commissioners is with-

out jurisdiction of the subject matter of the salaries of the County

Health Commissioner or other persons employed by the County

Board of Health.



HIGHWAY-Liability of Highway Department under contract for purchase of machinery
December 4, 1936
Hon. W. E. Wilburn, Chairman State Highway Board Atlanta, Georgia Dear Mr. Wilburn:
I have your request for my opinion as to whether any personal liability will be incurred by the members of the State Highway Board in consummating a contract of purchase and sale entered upon between the State Highway Board and Morgan's, Inc. of Savannah, Georgia, covering certain machinery.
As I understand the facts, the State Highway Board advertised for bids on certain machinery, bids were submitted by Morgan's, Inc. and others, and after these bids were opened and considered by the Department for several days, contracts were awarded to Morgan's, Inc. for the purchase of certain machinery, and purchase orders forwarded to the company.
In my opinion, the advertisement, the bids submitted in conformity with the advertisement, and the purchase orders executed by the Highway Department in pursuance thereof, resulted in contracts of purchase and sale which are binding upon both the State Highway Department and Morgan's, Inc.
After the contracts had been entered upon in the manner recited above, a restraining order was served upon the individual members of the State Highway Board in a suit brought in Cobb Superior Court by D. B. Blalock, seeking to restrain and enjoin the execution and performance of these contracts. This suit was heard on yesterday, and the Judge sustained a general demurrer and dismissed the petition. In the petition the validity of the proposed contracts was attacked on the ground that the proposal of the Highway Department had not been properly advertised. The action of the Judge of the Superior Court in sustaining the general demurrer, I think, adjudicates this question adversely to the contentions of the plaintiff.
In any event, whether the proposal was properly advertised or not, in my opinion the State Highway Department could not itself assert such omission as against one who had submitted bids in conformity with the advertisement, and whose bids had been accepted in writing.
There can be no doubt that the members of the State Highway Board, in purchasing this machinery for the State Highway Department, are acting within the scope of their authority as public officials

16~
of the State. Consequently, there can be no personal liability against any individual member of the Highway Board because of the acceptance of machinery delivered in conformity with such a contract and payment therefor. This is true for the additional reason that before any personal liability could ba incurred by any individual member of the Highway Board it would necessarily have to appear that injury and damage had resulted to the State from such action. This is true, irrespective of any irregularity in the procedure leading up to the contract.
In my opinion, the State Highway Department is authorized to receive and pay for the machinery it has contracted to buy from :Morgan's, Inc.
LABOR-Powers and duties of the Commissioner of Commerce and Labor and Chairman of the Department of Industrial Relations
March 6, 1935 Hon. Hal ]\f. Stanley, Chairman Department of Industrial Relations State Capitol My dear J\fr. Stanley:
In reply to your letter of recent date making inquiry as to the construction of Section 104-701 of the Code of 1933 relating to the powers and duties of the Chairman of the Commission of Commerce and Labor as Chairman of the Department of Industrial Relations in the powers and duties of the Department in reference to the employment of clerical help and assistants and the fixing of their salaries:
Section 114-701, after stating the powers and duties of the Commissioner of Commerce and Labor as Chairman of the Department of Industrial Relations states as follows:
"The Department may also, subject to the approval of the Governor, employ such clerical or other assistants as may be deemed necessary and fix the salaries of all persons so employed." You will note that the Section states that the "Department" may do certain things. This, as I understand, means the Chairman and the two Directors as they constitute the Department of Industrial Relations.
LABOR-Validity of criminal provision in Act not included in Code
September 16, 1935 Mr. W. E. Christie Chief Labor Division Department of Industrial Relations State Capitol Dear Mr. Christie:
Yours of the 12th instant received requesting an opm10n as to whether the failure to include that part of Section 2, Paragraph E of the Act approved August 17, 1920, (Ga. Laws 1920, pp. 118, 123) which reads:

168
"Any person, firm, or corporation, or any employee of such person, firm or corporation, who shall violate any of the provisions of this Act," in the Code of 1988 operates as a repeal of this part of said Act. Upon investigation, it is found that the language quoted above from the Act of 19~0 is not included in the printed Acts of 19~0.. (See Ga. Laws 19~0, Paragraph E, p. 1~3). All of the language of Paragraph E of this Act, with the exception of the first part of said paragraph making it a misdemeanor to violate any of the provisions of said Act is codified as Section 53-9901 of the Code of Georgia of
1933. By reference to the original Act in the office of the Secretary of
State, it is found that Paragraph E of the Act of 19~0 reads as follows: "Paragraph E. Any person, firm or corporation, or any em-
ployee of such person, firm or corporation, who shall violate any of the provisions of this Act, who shall fail and refuse to give any information called for by said Act, or who shall make any false representation relative thereto, such person or persons shall be guilty of a misdemeanor, and shall, upon conviction thereof, be punished as prescribed in Section 1065 of the Penal Code of 1910." This paragraph of the Act makes a violation of any of the provisions of the Act of 19~0 a misdemeanor, and specifically makes the failure and refusal to give information called for by said Act, or the false representation of any facts a misdemeanor and prescribes the punishment. Paragraph E of the Act requires employment agencies, etc. to file a bond in the sum of $5,000.00 with the Commissioner of Commerce and Labor. This Section was duly codified in the Code of Georgia of 1933, as well as the other provisions of the Act of 19~0, with the exception of the language first quoted above. If it is held that the omission from the Code of Georgia of 1933 of the language first quoted operates as a repeal of this part of Paragraph E of the Act of 1920, it is no longer a misdemeanor for an employment agency to fail or refuse to give the bond required by Paragraph B of the Act. Considering this fact, I am of the opinion that it was not the intention of the Legislature in adopting the Code of 1933 to repeal the law making it a misdemeanor to violate any of the provisions of the Act of 19~0. This omission, in the light of all the circumstances, appears to have been made through inadvertence, and due to the fact that the Code Commission r,elied upon the printed Acts in mak.ing the codification, rather than referring to the original Act as enrolled in the office of the Secretary of State.
In adopting the Code of 1933, the Legislature used this language: "The Code of Georgia of 1933 be, and the same is hereby
adopted and made of force as the Code of Georgia, having the force and effect of the statutes enacted by the General Assembly of this State." (See Section 1, Ga. Laws 1935, p. 85). Section ~ of said Act provides :
"All laws and parts of laws in conflict with this Act, except those enacted in the General Assembly of 1935. be and the same are hereby repealed."

164
It is significant that the Legislature provided that only those laws "in conflict with this Act" should be repealed. The Legislature did not expressly repeal that part of the Act of 1920 inquestion, and since that portion of the Act of 1920 omitted from the Code is not in conflict with any of the provisions of the Code of Georgia of 1933, I am of the opinion that there was furthermore no intention on the part of the Legislature to repeal the omitted portion in question by implication.
Our courts have held on several occasions that a statute in existence before the adoption of the Code is still in force though omitted therefrom unless repealed expressly or by necessary implication. See Hix v. Moyer, 10 Ga. App. 488; Farley v. State. 12 Ga. App. 643; Wiggins v. State, 17 Ga. App. 748; Rogers v. Citizens Bank of Douglas, 149 Ga. 568; Anderson v. Higginbotham, 174 Ga. 565.
It is my opinion, therefore, that the omission from the Code of Georgia of 1933 of that part of Paragraph E of the Act of 1920, making it a misdemeanor to violate any of the provisions of said Act did not operate as a repeal of said statute, and that the same is still of full force and effect.

LABOR-Records of Department of Industrial Relations not open to inspection by public

Mr. Sharpe Jones, Secretary-Treasurer

May 8, 1936

Department of Industrial Relations State Capitol My dear Mr. Jones:
Your letter of recent date making inquiry as to whether or not the Commercial Casualty Insurance Company is entitled to a certified copy of the transcript of evidence in a certain stated case for use in defending a suit against an accident policy, received.
"The records of the Department, in so far as they refer to accidents, injuries, and settlement, shall not be open to the public, but only to the parties satisfying the Department of their interest in such records and the right to inspect them." This section is plain, clear and explicit and needs no interpretation. I am of the opinion that you would not be authorized to furnish a certified copy of the transcript of the evidence to the Commercial Casualty Insurance Company as requested.

LABOR-Workmen's Compensation Insurance, form of policy, etc.
November 23, 1936 Department of Industrial Relations State Capitol Gentlemen:
I have your letter of November 21st with reference to an endorsement which you state certain insurance companies are attaching to their workmen's compensation insurance policies, limiting the liability of the company under paragraph 1(b) of the policy contract

I65
to $25,000 on account of one or more claims arising from a single accident. You state that the Department has not approved this endorsement but that some insurance companies are using it without the approval of the Department.
Section 114-608 of the Code of I933 provides as follows: "Every policy for the insurance of the compensation herein.
provided, or against liability therefor, including all contracts of mutual, reciprocal or inter-insurance, shall be deemed to be made subject to the provisions of this Title. No corporation, association or organization, and no mutual, reciprocal or inter-insurers shall enter into or make any such policy or contract of insurance unless its forms shall have been approved by the Department of Industrial Relations. This law shall not apply to policies of insurance against loss from explosion of boilers or flywheels or other similar catastrophic hazards." It will be noted from an examination of this Section of the Code that it provides in substance that no policy or contract of insurance covering workmen's compensation under the Georgia workmen's Compensation Act shall be issued unless its form shall have been approved by the Department of Industrial Relations.
Paragraph I (b) of the specimen policy which you attach to your letter evidences the undertaking of the insurer to indemnify the insured employer against loss by reason of the liability imposed upon him by law for damages on account of injuries to employees. It does not purport to cover the payment of workmen's compensation, but this is undertaken by the provisions of paragraph I(a).
It seems therefore that so much of the policy contract as is referred to in your letter, contained in paragraph I (b) thereof is not a contract insuring the payment of the workmen's compensation provided for by our workmen's compensation Act, but simply a liability insurance contract, whereby the insurance company undertakes to indemnify the employer against loss by reason of injuries which do not come within the Workmen's Compensation Act. This being true, I think the Department of Industrial Relations might properly decline to permit the incorporation of such an indemnity contract in a workmen's compensation insurance policy. If the Department does permit liability insurance to be included in a workmen's compensation insurance policy, as a separate provision thereof, such as is evidenced by the specimen policy attached to your letter, I think the company is authorized to insert such a provision limiting its liability as it may be able to agree upon with the insured, and that the Department of Industrial Relations has no authority to prevent the insertion of a provision in the contract, by endorsement or otherwise, so limiting the liability. The endorsement form which you attach to your letter seems to relate entirely to the indemnification contract embodied in paragraph l(b) and not to the payment of workmen's compensation. I will state, however, that I do not think an insurance company is authorized to use any endorsement or other policy provision affecting the contract required to be approved by the Act, without the approval of the Department of

166
Industrial Relations. In other words, the Department of Industrial Relations has jurisdiction to fix the form of the contract between the employer and his insurance carrier which is required by the Workmen's Compensation Act. It has no jurisdiction of any other contract between the employer and the insurance carrier.
INSURANCE-Establishment of trust fund to consist of 30% of subscription price to a newspaper, to be divided among the sub~ scribers who die during subscription year comes within definition of insurance.
February 19, 1935
Hon. W. B. Harrison Comptroller General State Capitol Dear l\Ir. Harrison:
I have your letter submitting one from Mr. Tom Arnold, Editor of The North Georgia Tribune, outlining a plan whereby he proposes to establish a trust fund to consist of thirty per cent. of the sub~ scription price to his paper, to be divided among the subscribers who die during the subscription year.
In my opinion, such a plan falls within the definition of life in~ surance as embodied in the Code of Georgia.
V{hile the amount of the proposed benefit to each subscriber is not definite and certain, it is capable of ascertaining in accordance with the provisions of the proposed plan. A contract of life insurance is generally defined as one by which the insurer, for a stipulated sum engages to pay a certain amount of money if the insured should die within the time stipulated by the policy.
This proposed plan meets every requirement of life insurance ex~ cept certainty of the amount to be paid. I think it meets that requirement in that the amount required to be paid is capable, by the terms of the undertaking, of being made certain and definite.
Therefore, it is my opinion that the proposed plan does amount to the writing of life insurance within the meaning of the law.
INSURANCE-Contract issued by Georgia Motorists Protective Association is contract of insurance
February ~7, 1935 Hon. W. B. Harrison Insurance Commissioner State Capitol Dear Mr. Harrison:
I have your recent communication, submitting to me a specimen contract of the Georgia Motorists Protective Association, and requesting my opinion as to whether or not this contract is a con~ tract of insurance within the meaning of the Georgia law.

167
You also enclose a circular of this company and a blank application which recites that a contract of the nature referred to will be issued for two years for a consideration of $29.50.
The contract provides that the Company, in consideration of the amount paid:
(1) Will furnish to the member towing services anywhere in the United States;
(2) Will provide full road emergency service to its members anywhere in the United States, including roadside repairs, tire changes, etc.;
(3) In the event of the arrest of the member while driving the insured automobile, it will furnish an authorization upon a duly authorized Surety Company for a bail bond up to $10,000.00;
(4) Offers a reward of $50.00 for the arrest and conviction of anyone stealing the member's automobile, and maintains a Theft Department and will assume all expense of communicating and tracing automobile thieves;
(5) Will furnish complete road service and touring information free to its members;
(6) If a member shall be charged with a serious offense as a result of an accident involving the operation of the automobile by himself or any member of his family, the company will indemnify the member against expense for legal services for his defense, provided the attorney selected is approved in writing by the Association;
(7) That in the event any suit for damages arising out of the operation of the automobile is brought against the member, he will be indemnified against expense for legal services, provided his attorney is approved by the Association;
(8) In the event of any damage to the member's automobile by another person in a collision, the Association will indemnify him against legal expense incurred in the collection of such damages, provided the Association approves his attorney;
(9) Will indemnify him against expense for legal services in defending against violation of State laws, City ordinances and traffic regulations, provided the Association approves his attorney.
A contract of insurance may generally be defined to be an agreement whereby one party undertakes, for a consideration, to indemnify another against loss or damage by reason of the happening of the contingency provided for.
Measured by this rule, it is clear to me that the contract now under consideration is nothing more nor less than a contract for casualty insurance. The question of whether such a contract is a contract of insurance does not depend upon the name by which it is called or the name by which the contracting parties are distinguished, but it depends upon the undertaking by the contracting parties. State v. Alley, 96 Miss. 720, 51 So. 467.
In the case of Physicians Defense Co. v. Cooper, 199 Fed. 576, it was held that a contract whereby one party agreed to furnish legal services and to indemnify the other against liability on account of

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court costs and attorneys' fees in the event he should be sued for malpractice, was a contract of insurance and that the company writing such contracts was subject to the insurance law.
There seems to be no Georgia case directly in point, but the trend of all foreign authority, as well as the general rule laid down by text writers, is to hold that a contract such as is now under consideration is a contract of insurance.
I am quite sure our courts would hold that this contract is a contract of insurance.
I am therefore of the opinion that the Georgia Motorists Protective Association is engaged in the insurance business and that the contract attached to your letter is a contract of casualty insurance.
INSURANCE-Foreign mutual insurance companies not required to insert Emergency Clause in their policies
April 12, 1935
Hon. Lewis A. Irons Deputy Insurance Commissioner State Capitol Dear Mr. Irons:
I have your letter of April 6th with reference to the so-called "Emergency Clause" in the policies issued by mutual fire insurance companies.
Section 56-313 of the Code of 1933, which requires the inclusion of the so-called "Emergency Clause" in the policies issued by mutual fire insurance companies, is limited by its express terms to companies chartered under the laws of this State. It plainly does not apply to foreign mutual fire insurance companies.
While Section 56-1417, which contains a similar provision, is not by its express terms limited to domestic mutual fire insurance companies, it is taken from the Act of 1923 which relates only to domestic mutual fire insurance companies.
I am therefore of the opinion that neither Section 56-313 nor Section 56-1417 applies to foreign mutual fire insurance companies.
I think these companies are governed by the general insurance laws and where they have met the requirements of the laws of this State and have, under the laws of this State, become entitled to be licensed and transact business, they may enter upon such contracts of insurance as may be agreed upon between them and their policy holders and which do not violate any provision of the State law. I do not think the Insurance Commissioner is authorized to require of them to insert the so-called "Emergency Clause" in their policies.

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TAXATION-Payment of gross premium taxes required of insurance companies
April 13, 1935 Hon. Lewis A. Irons Deputy Insurance Commissioner State Capitol Dear Mr. Irons:
I have your letter of April 8 with reference to the gross premium taxes required to be paid by insurance companies under the General Tax Act of 19~7 and under the General Tax Act of 1935 which becomes effective January 1, 1936.
I see nothing in either of the Acts referred to which could operate to repeal the provision of the Act of 1887 (Code of 1933, Section 56-506) which requires the payment of gross premium taxes within sixty days from May first of each year for the year or fractional part of a year ending April 30th next preceding. While the General Tax Act is effective January 1, 1936, it simply fixes the rate of taxation on gross premiums and does not undertake to provide when the return shall be made or the period to be covered by the return. While the General Tax Act does require payment of taxes in full for the calendar year it evidences no purpose to change the calendar year provided for by the Act of 1887 relating to the return and payment of gross premium taxes. If the General Tax Act of 1935 had made a change in the rate of taxation on insurance premiums it would have been necessary for companies to show premiums collected prior to January I, 1936, separately from premiums collected between January I, I936, and April 30th, I936, so that the applicable rates might be applied. This, however, would not operate to change the tax period. It happens, however, that there was no change made in the rate.
I am therefore of the opinion that Section 56-506 of the Code of 1933 remains of force and was not affected by the General Tax Act of I935.
INSURANCE-Securities deposited with State Treasurer by insurance companies writing workmen's compensation insurance must be approved by the Insurance Commissioner
April 20, 1985 Hon. Lewis A. Irons Deputy Insurance Commissioner State Capitol Dear Mr. Irons:
Replying to your letter of April 19th I beg to advise that under the Act of I933 requiring a deposit by insurance companies writing workmen's compensation insurance such securities as may be approved by the Insurance Commissioner may be deposited with the State Treasurer in lieu of the statutory bonds required to be filed.
The Act of 1933 does not require any particular form of security but simply provides that they must be such securities as the Insurance Commissioner shall approve.

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INSURANCE-Independent Fraternal Union is not a fraternal beneficiary order but is doing an insurance business and is subject to the supervision of the Insurance Department

Hon. Le~is A. Irons

May 14, 1935

Deputy Insurance Commissioner

State Capitol

Dear Mr. Irons:

I have your letter of May tenth with which you inclose a copy

of the general laws of the Independent Fraternal Union of Cuth-

bert, Georgia, specimen copies of endowment certificates issued by

this fraternal union, and a copy of a circular signed by J. A. Lee,

Most Worthy Commander. You request my opinion as to whether

or not this society comes under the supervision of the Insurance

Department.

The laws of Georgia relating to fraternal insurance associations are

embodied in Chapters 56-16 and 56-17 of the Code of 1933. Chapter

56-16 is under the heading "Fraternal Benefit Societies" while

Chapter 56-17 is under the heading "Fraternal Beneficiary Orders."

The latter chapter was carried forward from the Code of 1910 and

was codified in the Code of 1910 from the Acts of 1900 which were

subsequently amended in 1912. Chapter 56-16 is codified from the

Act of 1914 as amended in 1917 and 1929.

Chapter 56-16 of the Code, by Section 56-1601, defines fraternal

benefit societies as follows:

"Any corporation, society, order or voluntary association, with-

out capital stock, organized and carried on solely for the mutual

benefit of its members and their beneficiaries and not for profit,

and having a lodge system with ritualistic form of work and repre-

sentative form of government and which shall make provision for

the payment of benefits in accordance with Section 56-1607, is

hereby declared to be a fraternal benefit society."

It is provided by Section 56-1602 that the provisions of Sections

56-1601 to 56-1635, which were the provisions of the original Act

of 1914, shall not apply to fraternal benefit societies whose member-

ship does not exceed 5,000 members. It is also provided by Section

56-1634 that the provisions of the Sections just referred to shall not

apply to certain named fraternal organizations

"Nor to an association of local lodges which provides that the

benefits not exceeding $500. to any one person or disability benefits

not exceeding $300 in any one year to any one person."

Chapter 56--17, by Section 56-1701, defines a fraternal beneficiary

order as follows:

"A fraternal beneficiary order, association, or society is one

which has no capital stock, but is formed or organized and carried

on for the benefit of its members and their beneficiaries, having a

representative form of government and a lodge system, with

ritualistic form of work for the meeting of its lodges, chapters,

councils, or other designated subordinate bodies, and the benefits,

insurance, charity, or relief being payable by a grand or supreme

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body of the same, excepting sick benefits, which may also be paid by local or subordinate bodies. Such grand or supreme bodies may be composed of its officers, incorporators, representatives elected by local, district, or grand bodies, past officers, and standing committees. Such orders or associations may make a constitution, by-laws, rules, and regulations consistent with the existing laws of this state, for the government of all under its authority, for the management of its properties, and for the due and orderly conduct of its affairs." It is provided by Section 56-1709 that nothing in Chapter 56-17 shall apply to grand or subordinate lodges of l\Iasons, Knights of Pythias, Odd Fellows, Red Men, Junior Order American Mechanics, or similar orders that do not have as their principal object the issuance of benefit certificates to members. It is provided by Section 56-1601 that the fraternal benefit societies provided for by Chapter 56-16 shall be governed by that chapter and shall be exempt from all provisions of the insurance laws. It is also provided by Section 56-1704 that the fraternal beneficiary orders provided for by Chapter 56-17 shall be governed by that chapter and shall be exempt from the provisions of the insurance laws of this State. Since, as you state, the Independent Fraternal Union does not have 5,000 members, and since it also limits its policies to $200, with a corresponding limitation in health benefits, it seems that this society is not subject to the provisions of Chapter 56-16 and that it is not entitled to exercise or have the privileges and immunities granted by that chapter.
The Independent Fraternal Union was incorporated in the Superior Court of Randolph County in 1914. According to the express terms of its charter the particular business which the incorporators proposed to carry on was that of
"Caring for the sick, burying the dead, providing for the widowed and orphaned, and to aid and to establish such industrial enterprises among its members as may be deemed worthy and expedient." It was authorized by its charter to purchase, hold and own real estate and personal property.
There is no express authorization in the charter of this society for its engaging in the insurance business. It could not engage in the insurance business without complying with the general insurance laws of this order, unless it did so by virtue of the provisions of Chapter 56-16 or Chapter 56-17 of the Code of 1933. Section 56-1616 provides for an examination of any such proposed benefit society by the Insurance Commissioner and for the issuance of a certificate by that official upon the presentation of satisfactory evidence of compliance with the provisions of law. This certificate was declared to be prima facie evidence of the existence of the society at the date of the certificate. Whether or not this provision was intended to provide a means for incorporating a fraternal benefit society, an whether or not such provision so construed is constitutional, are questions

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which are immaterial here, since it is clear that the particular society to which you make reference does not fall within the provisions of Chapter 56-16. It may be stated, however, that under the constitution of this State the Secretary of State is the only public official who is empowered to grant charters to insurance companies. Section 56-1718 provides for the licensing of fraternal beneficiary orders upon their being duly chartered by the Secretary of State, and receiving from him a certificate of their incorporation. As stated, the Independent Fraternal Union was not chartered by the Secretary of State, but by the Superior Court of Randolph County. The Superior Court has no power, under the Constitution of Georgia, to incorporate an insurance company, nor does it appear from the terms of the charter of the Independent Fraternal Union that it was incorporated by the Superior Court as an insurance company.
The question you submit does not involve a determination of whether this society is carrying on a business not authorized by its charter, but whether or not it is subject to the insurance laws regulating fraternal beneficiary orders.
I have carefully examined the general laws of the Independent Fraternal Union and the specimen policy which it issues. It is unquestionably engaged in the insurance business and is writing life insurance within the meaning of the Georgia Law. See In Re: Supreme Lodge of the Masons Annuity, 286 Fed. 180, 187. As was stated by Judge Sibley in the case just cited:
"It is a fair statement of the Georgia law that the conception of a fraternal and beneficial society has changed from that of benevolence to one of business; the business.being insurance of a definite sort and separately regulated, but still insurance. When this company departed from the plan of raising a fund to be distributed to the aged and needy at the discretion of its governing body-this was Masonic benevolence-to a direct obligation to pay to persons chosen, not because of their need, but because of the relative unlikelihood of having to pay them to all, which is business, the realm of the social and charitable was left and that of selfishness entered; mutual insurance pure and simple was undertaken. Calling premiums dues and policies certificates does not alter the essence of the matter. Whether this was permissible under the charter is not under inquiry." It purports to be carrying on this business as a fraternal beneficiary order, and the issuance of benefit certificates to the members seems to be the principal object of the society. There is nothing in the general laws of the order which would indicate that it was organized primarily for social, fraternal or benevolent purposes. I must therefore hold that this society, as it is not a fraternal beneficiary order within the meaning of Chapter 56-17 of the Code of 1988, is nevertheless doing an insurance business and is subject to the supervision and regulation of the insurance department.

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INSURANCE-Examination of applicant for license as insurance agent
June 17, 1985
Hon. Lewis A. Irons Deputy Insurance Commissioner State Capitol Dear Mr. Irons:
I have your letter of June 15th with reference to the Act approved March 28th, 1935, relating to the examination of applicants for licenses as insurance agents.
You state that while the Act requires the payment of an examination fee of $10.00 from each first-time applicant, it does not appropriate these fees to the purposes of paying the expenses incident to such examination, and the Department is without funds to conduct such examinations. You also state that the Georgia Association of Insurance Agents has volunteered its services to assist the Department in this matter and has offered by proper appointment by the Commissioner, to prepare and provide, in conjunction with your Department and without cost to the State, examination forms to be used and has offered the services of competent members of the association as examiners. You call my attention to the fact that the Insurance Commissioner, or "his deputy or any person he may appoint to represent him," may subject each first time applicant for license to a personal written examination as to his competency to act as an insurance agent.
You request my opinion in view of the foregoing, as to whether or not the Commissioner is authorized to accept the offer which has been made by the Georgia Association.
In my opinion the statute does not contemplate the preparation of the examination and the fixing of the scope of the examination by the person to be designated by the Commissioner. I think that reference in the statute is to the actual conduct of the examination itself.
The question you ask involves more a matter of policy than it does one of law. I can see no reason why the Insurance Commissioner should not accept the offer of the Association to assist in the preparing and printing of the necessary forms, without expense to the State, provided the Insurance Commissioner himself, or his deputy, actually approves the forms and the scope of the examination is determined by the Insurance Commissioner rather than by the Georgia Association of Insurance Agents. In other words, I see no reason why you should not accept their offer to bear this expense and assist in the preparation of the forms provided the Insurance Commissioner himself or his deputy actually exercises the function which the law seems to me to vest in the Insurance Commissioner to determine the nature, extent and scope of the examination. I do not think this function can be delegated to anyone.
I also see no reason why the Insurance Commissioner should not accept the service of a member of the Georgia Association to conduct

174
the examination, that is, preside over the examination. I do not think, however, the Insurance Commissioner is authorized to delegate to such person the duty of determining whether the applicant successfully passed the examination. I think that must be determined also by the Insurance Commissioner or his deputy, or some person specially designated by him for such performance, who becomes an employee of the State to that extent and is not a mere volunteer.
As stated, the matter is more one of policy than it is one of law. I very seriously doubt, however, the wisdom of permitting an association of this sort to prepare examination papers for applicants who will necessarily, after licensing, work in competition with that association. I think the law contemplates that the examination to be given agents shall be free from any outside influence.
INSURANCE-Home Owners Loan Corporation bonds may be used as statutory deposit under Code Section 56-317
July ~5, 1935 Hon. Lewis A. Irons Deputy Insurance Commissioner State Capitol
Dear Mr. Irons:
I have your letter of even date in which you request my opinion as to whether or not the Southern Life Insurance Company may deposit Home Owners Loan Corporation bonds as the statutory deposit under the Georgia Law.
I presume you refer to the deposit required of this company under Section 56-317 of the Code of Georgia of 1933. This Section provides:
"All such companies chartered by this State shall, before doing business, deposit with the Treasurer of this State, $100,000.00 in such securities as may be deemed by the Insurance Commissioner equivalent to cash, to be subject to his order, as a guaranty fund for the security of the policy holders of the company making such deposit." Section 56-306 of the Code of 1933 requires the maintenance of a certain deposit against the reserve value of policies of life insurance companies. It is expressly provided by this section that the securities deposited shall be such as are described in Section 56-224. Section 56-224 is the section enumerating the securities in which companies organized and doing business by virtue of the laws of this State may invest their assets. The class includes "evidences of indebtedness which may be purchased or discounted by :federal Reserve Banks." Under the Act of Congress approved April 27, 1934, (U. S. C. A., Title 12, Section 355), bonds issued by the Home Owners Loan Corporation may be purchased by Federal Reserve Banks. Such bonds are accordingly securities in which companies licensed to do business in this State may invest their assets.

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I am of the opinion therefore that bonds of the Home Owners Loan Corporation may be deposited under Section 56-306, which requires the maintenance of the deposit against the reserve value of policies.
The section of the Code requiring a deposit by life insurance companies organized under the laws of this State does not permit. the deposit of such securities as are described in Section 56-224 but provides that the deposit must be in such securities as may be deemed by the Commissioner of Insurance as equivalent to cash.
I am therefore of the opinion that a domestic life insurance company chartered under the laws of this State can deposit bonds of the Home Owners Loan Corporation under Section 56-317 only if the Insurance Commissioner deems such securities to be the equivalent of cash. If the Insurance Commissioner does deem such securities to be the equivalent of cash, they may be deposited under this section. If the Insurance Commissioner does not deem such securities the equivalent of cash, they may not be deposited under this statute.
In determining whether such securities are the equivalent of cash the Insurance Commissioner must necessarily exercise his own judgment. I think in passing upon this question the Insurance Commissioner should properly take into consideration the fact that these obligations are unconditionally guaranteed as to principal and interest by the United States Government. I do not think however the fact that they are so guaranteed is or should be deemed to conclusively establish their equivalence to cash. I think the proper construction of the language of Section 56-317 which I have quoted is that the securities which may be accepted are such as the Insurance Commissioner considers now the equivalent of cash in the sense that they may now be exchanged upon the open market for the amount of cash represented by their face value. If such securities are worth less than par at the time of their deposit, I do not think the Insurance Commissioner would be authorized to accept them at par for deposit. I think he is authorized to accept them at par only if they are worth their face value.
The opinion herein expressed is based upon the language used by the section of the Code referred to. It is not intended to apply to any other deposit required by law to be made by insurance com- panics. In each case such a question is dependent upon the proper construction of the particular statute requiring the deposit.
INSURANCE-Deposit of Chicago Lloyds
September 9 1935 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear :Mr. Wright:
I have your communication of September 6th with reference to the deposit by Chicago Lloyds, Associated Underwriters, Inc., Attorney-in-fact.

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As I understand the matter, Chicago Lloyds is a partnership engaged in the insurance business and does business through Associated Underwriters, Inc., as trusteee and attorney-in-fact. Chicago Lloyds desired to qualify to do business in Georgia and has tendered for deposit certain bonds registered in the name of Associated Underwriters, Inc. This is to advise that I see no reason why the Treasury of Georgia should not accept bonds thus tendered. I do not think the name in which the bonds are registered is an essential element of the deposit, so long as they are properly registered, and the deposit is accompanied by the necessary power of attorney authorizing their negotiation and sale by the State Treasurer.
As I understand the facts, the reason Chicago Lloyds desires to make this particular deposit is that it is a partnership and the deposit would require the signature of more than two hundred partners, whereas Associated Underwriters, Inc., is the designated trustee and attorney-in-fact for all of the partners and is authorized to enter upon all necessary contracts for the conduct of the business.
INSURANCE-Five year commutation plan of insurance
August 19, 1935 Ron. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your communication of recent date referring to this department a file of correspondence relating to policies issued by the General Insurance Company of America over a five year commutation plan.
As I understand the plan of insurance referred to it is simply that the policy holder is given an option to renew the policy successively for four years after the first year, at a lower rate than the rate ordinarily charged for a one year contract.
With the file you hand me copy of an opinion handed down by the Supreme Court of Ohio on June 26, 1935, holding that a similar contract is violative of the Ohio laws regulating insurance.
I am of the opinion that this contract does not constitute a discrimination within the meaning of the Georgia law.
The Ohio decision is based on a provision of the Ohio statute requiring the use of uniform rates and providing in substance that no fire insurance company shall fix or charge any rate for fire insurance which discriminates unfairly between risks in the application of like charges and credits or which discriminate unfairly of risks of essentially the same hazards and having substantially the same degree of protection against fire. The Ohio law further provides that any deviation from the established scale of rates must be uniform.
There is nothing in the Georgia law which prohibits discrimination between risks. Neither does the Georgia law undertake to fix insurance rates or require the use of uniform rates by the insurance companies doing business in this State.

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Section 56-218 of the Code of 1933 prohibits insurance companies from entering upon contracts to rebate any insurance premium or any part thereof to any insured or other person. This section also prohibits the sale or offering for sale of any special contract or other form of policy or contract whereby any discrimination in any form or character is allowed to any particular person or persons. This section of the Code is aimed at special contracts, not offered to the public generally, whereby particular persons, as distinguished from particular risks, are afforded insurance at discriminatory rates, or enabled to obtain contracts not offered to the public generally.
As I understand the method of doing business of the insurance company in question it offers the form of contract complained of to any person who desires to contract on that basis, providing the risk is eligible for the particular class of insurance.
I see nothing in this contract which is violative of the Georgia law.
INSURANCE-Qualification of General Reinsurance Corporation to do workmen's compensation business in Georgia
October 22, 1935 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I am in receipt of your letter of the 21st and of the file which you left me relating to the requirements for qualification to do business in Georgia of the General Reinsurance Corporation of New York.
In a letter dated July 22, 1935, addressed to the Insurance Department and signed by H. G. Crane, Comptroller of this Insurance company, it is stated that it is the desire of the company to be licensed for all classes of casualty business with the exception of fidelity and surety. This being true, the company must comply with the requirements of the Act approved March 23, 1933, relating to the qualification of companies doing a workmen's compensation business.
In my opinion if this company is licensed to do a workmen's compensation business it must comply with this Act. The fact that its method of doing business is different from the method ordinarily employed by such companies, would not operate to change the rule. If this company is engaged simply in reinsuring the liability of companies writing workmen's compensation insurance, and does not transact that business within the State of Georgia, it may be that it would not have to obtain a Georgia license. However, there is no provision of the Georgia Law for licensing a company to carry on such a limited workmen's compensation business. If licensed at all it must be licensed generally and in order to obtain a license must comply with the Act of 1933.

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I note there is contained in the file a letter from the SecretaryTreasurer of the Industrial Commission to the effect that this office has advised him verbally that the deposit required by the Act of 1933 is not necessary where a company is simply reinsuring the liability of companies doing workmen's compensation business. On more mature consideration, I am of the opinion that if such company seeks a license to do business in Georgia, it must comply with the Act of 1933.
INSURANCE-Bond required of fraternal benefit society
November 1, 1935 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the 31st inclosing a communication from Mr. W. L. Bryan, together with the proposed bond to be signed by the Union National Life Insurance Company.
You state that this company proposed to qualify as a fraternal benefit society and you desire to know if the proposed bond is in proper form.
I presume that this company seeks to qualify under the Act of 1914 to which reference is made in the bond. If the procedure for qualification meets the requirements of that Act, I think the bond conforms to Section 12 of the Act of 1914 (Georgia Laws 1914, pages 99-105, Code of 1933, Section 56-1615). I note, however, the bond recites that the Union National Life Insurance Company has received a charter as a fraternal insurance corporation. If this recital correctly states the facts, it would not seem that the company is seeking to qualify under the statute referred to, since qualification under that statute consists of the required application to the Insurance Commissioner upon which he issues a certificate in the nature of a charter.
I do not know whether the Union National Life Insurance Company has applied for and obtained a charter from the Secretary of State or whether it seeks to qualify upon articles of incorporation to be filed with the Insurance Commissioner. If it is adopting the latter course, it seems to me that the bond is not in proper form. If it is adopting the former course, I am of the opinion that it must qualify as any other insurance company.
It seems to me that the constitutionality of the Act of 1914 is highly doubtful, in view of the express provision of Article 3, Section 7, Paragraph 18 of our Constitution that all charters to insurance companies must be granted by the Secretary of State.
With out more definite information, I cannot give you a definite ruling on the question asked.

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INSURANCE-Qualification of fraternal benefit society

November 4, 1935

Hon. A. R. Wright:

Deputy Insurance Commissioner

State Capitol

Dear Mr. Wright

.

This letter is written as a supplement to my letter to you of X o-

vember 1, 1935, with reference to the bond proposed to be executed

by the Union National Life Insurance Company under Section

56-1614 of the Code of 1933.

I have gone fully into the matter with Mr. W. L. Bryan, who

represents this company, and he advises me that it was chartered

by the Secretary of State pursuant to Section 56-171~ of the Code of

1933 as a domestic fraternal beneficiary society and has complied

with all the laws of the State regulating the incorporation of insur-

ance companies except the provision relating to capital stock, which

by the express terms of the Section referred to, does not apply to

domestic fraternal beneficiary societies.

I am advised that this company desires to qualify under both

Chapter 56-17 and Chapter 56-16. While the filing of the bond

which has been tendered you is not necessary to qualify under Chap-

ter 56-17, and the company, without filing such bond, might enter

upon its business with a membership limited to five thousand, since

it desires to qualify under both Chapters in order that its member-

ship may not be limited to five thousand it is proper that it execute

the bond referred to.

I am of the opinion that the bond tendered you is in proper form

and should be accepted.

In the letter to you of November 1st I expressed the opinion that

if this company adopted the course of applying to the Secretary of

State for a charter it would be necessary for it to qualify as any other

insurance company. By that statement I meant that it would have

to obtain a charter in the same way as any other insurance com-

pany, subject to the express exception in favor of companies of this

sort that they need not have any capital stock. That statement

did not relate to the company's qualification with the Insurance De-

partment. It is authorized to .qualify with the Department under

the provisions of Chapters 56-16 and 56-17 of the Code.

INSURANCE-Insurance companies may not invest in city scrip
November 19, 1935 Hon. W. B. Harrison Comptroller General State Capitol Dear Mr. Harrison:
You have referred to the Department of Law the letter from Messrs. Turpin & Lane of Macon, Georgia, General Counsel for the Bankers Health and Life Insurance Company. They request permission on behalf of that company to invest a sum not exceeding $25,000.00 in current interest bearing script of the City of Macon.

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They state that the so-called script is now being issued by the City for the purpose of meeting the pay roll, and the City holds executions for taxes in an amount sufficient to meet all of this script. They further state that the practice is for the city clerk to issue a draft upon the City of Macon, under a proper resolution of the Mayor and Council, payable to the order of the particular employee, and representing, in each case, two weeks salary or wages. These drafts bear interest at 6% per annum and are formally accepted by the City Treasurer.
You desire an opinion as to whether this city script is a legal investment for the assets of an insurance company doing business in this State.
I presume the investment will fall under Section 56-224 of the Code of Georgia of 1933, which provides as follows:
"Every insurance company organized and doing business by virtue of the laws of this State shall have authority to invest its money and assets in the following securities, to wit:
"(a) Any and all bonds or securities issued by the United States of America, the District of Columbia, or any State of the United States, or any county or city therein; bonds of any township or school district therein; bonds issued by the Federal Land Banks under provisions of the Act of Congress of July 17th, 1916, its amendments and supplements.
"(b) Loans secured by any of the classes of securities specified in (a) hereof.
"(c) Loans secured by first liens on improved real estate in any of the states, not exceeding fifty per cent of the value of said property.
"(d) Loans on policies issued by the insurance company, not exceeding the reserve on such policies.
"(e) A building for home office purposes: Provided, that no company shall hereafter invest in such building unless its assets shall exceed $100,000.00 and that such company shall not invest more than 25% of its assets in such building: and provided further that any such investment in a building for home office use shall first be approved by the insurance commissioner.
"(f) Evidences of indebtedness which may be purchased or discounted by Federal Reserve Banks.
"(g) Investment securities, that is, marketable bonds, notes, and/or debentures, evidencing indebtedness of solvent persons or corporations, which, under the regulations of the Comptroller of the Currency of the United States, National Banks may buy and in which they may deal.
"(h) Bonds and debentures of any solvent railroad, street railway, or other public utility corporation, or industrial corporation, on which no default of interest has occurred, when and if secured by mortgage or deed of trust covering physical assets or securities of ample value to exceed the indebtedness secured.
"(i) Preferred stocks of solvent corporations, where at the time of acquisition, the equity of all preferred stock outstanding in the

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assets of the issuing corporation, including the issue in which investment is made, is more than twice the amount of such preferred stock, and the earnings applicable to dividends on such preferred stock have, for two consecutive years prior to the date of acquisition, exceeded twice the dividend requirements.
"(j) Common stock of solvent railroads, street railways,. and other utility corporations and industrial corporations which are listed on an established stock exchange, where, prior to the date of acquisition of the Stock, the company issuing such stock has maintained and paid dividends thereon for three consecutive years, and the current earnings of such company issuing such stock have been sufficient in each of such three consecutive years to fully pay the dividends.
"(k) Promissory notes amply secured by pledges of securities in which the company is authorized to invest its funds."
The section of the Code just quoted is followed by Section 56-225, which reads as follows:
"Investments in the class of securities defined in the preceding section, except as to a building for home office purposes, may be made by insurance companies without the approval of the Insurance Commissioner, and all other investments of funds by insurance companies in classes of securities other than those specified in the preceding section shall be made only when the approval of the Insurance Commissioner shall have been obtained."
The so-called city script plainly does not fall within any of the classes of securities defined and described by Section 56-224. Accordingly, an insurance company is not authorized to invest its funds in such city script without the approval of the Insurance Commissioner, since the investment, if made, must be made pursuant to Section 56-225. This section provides that all other investment of funds by insurance companies "in classes of securities other than those specified," in Section 56-224, shall be made only upon the approval of the Insurance Commissioner. The particular question submitted necessarily involves a determination of whether this City script constitutes securities within the meaning of Section 56-225, since the Insurance Commissioner is authorized to approve only investments in securities.
It cannot be said that the city script represents any indebtedness of the City of Macon, since if the issuance of the script amounts to incurring a debt against the city the same is void under the Constitution of this State unless incurred pursuant to a vote of the people. It seems that what the script really represents is an acknowledgement that the particular employee has earned the amount of salary covered by the script which is due on demand, with interest from date, and the script is therefore, nothing more nor less than an order for the payment of money which has been accepted by the city.
The terms "securities" in its broadest sense embraces bonds, certificates of stock, and other evidences of debt or of property. It does not embrace an accepted bill of exchange.

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I am therefore of the opinion that the script which is being issued by the City of Macon may not be construed to fall within the term "securities" as used in Section 56-225 of the Code and that you are not authorized to approve an investment of the funds of an insurance company in such paper.
I have no doubt this city script will be honored by the city authorities in due course, or that it is a perfectly good and safe investment. In my opinion, however, you are bound by the terms of the statute and are therefore not authorized to approve such investment.
INSURANCE-Consolidated farm loan bonds issued by the Federal Farm Loan Corporation are eligible for deposit by insurance companies under Code Sections 56--317, 56-306, 56-301, 56-312, 56-313, 56-321 and 56-322 but are not eligible for deposit under Sections 56-311 or 56-1107
December 5, 1935 Hon. W. B. Harrison Insurance Commissioner State Capitol Dear Mr. Harrison:
I have your communication referring to me for opinion a letter from the Assistant Deputy Governor of the Farm Credit Administration wherein he desires to know whether consolidated farm loan bonds issued by the Federal Farm Mortgage Corporation are eligible for deposit by insurance companies operating in the State of Georgia.
I do not know whether this letter refers to deposits for any particular purpose or not.
Domestic life insurance companies are required to deposit with the State Treasurer, before doing business, $100,000 in such securities as may be deemed by the Insurance Commissioner to be equivalent to cash as a guaranty fund for the security of the policy holders of such company. Code of 1933, Section 56-317.
I am of the opinion that bonds issued by the Federal Farm Mortgage Corporation are eligible for deposit under the section just referred to, provided the Insurance Commissioner shall deem them the equivalent of cash. I note that these bonds are unconditionally guaranteed as to principal and interest by the United States Government. In determining whether they should be deemed the equivalent of cash, the Insurance Commissioner must necessarily exercise his own judgment and discretion. In my opinion the fact that they are so guaranteed by the Government of the United States should be taken into consideration; but I do not think this fact should be taken as of itself establishing their equivalence to cash. In my opinion the proper construction of section 56-317 is that the securities which may be accepted are such as the Insurance Commissioner may consider the equivalent of cash in the sense that they may now be exchanged upon the open market for the amount of

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cash represented by their face value. If such securities are worth less than par at the time of the deposit, I do not think the Insurance Commissioner would be authorized to accept them at par for de~ posit.
Section 56-306 of the Code of 1933 requires the maintenance of a certain deposit against the reserve value of policies of life insurance companies. It is expressly provided by this section that the se~ curities deposited thereunder shall be such as are described in Sec~ tion 56-224. Section 56-224 enumerates the securities in which companies organized and doing business by virtue of the laws of this State may invest their assets and includes "evidence of indebtedness which may be purchased by or discounted by Federal Reserve Banks." If bonds issued by the Federal Farm Mortgage Corpor~ ation are eligible for purchase or discount by Federal Reserve Banks they are eligible for deposit by insurance companies under Section 56-306 of the Code of Georgia.
Section 56-301 of the Code of 1933 requires the maintenance with the State Treasurer of a certain deposit by fire, marine and inland insurance companies. It is expressly provided by this section that such deposits shall be in the form of bonds of the United States, or bonds of this State, or of any county or municipality in this State. Although bonds issued by the Federal Farm Mortgage Corporation are unconditionally guaranteed as to principal and interest by the United States, they are not primarily the obligations of the United States. The relationship of the United States Government to these securities is that of guarantor and not that of issuer or principal debtor. Accordingly I am of the opinion that such bonds are not eligible for deposit under Section 56-301.
Mutual fire insurance companies are required by section 56-31~ of the Code of 1933 to maintain a deposit with the State Treasurer. The requirements are similar to those relating to other fire insurance companies as contained in Section 56-301, and I am of the opinion that bonds of the Federal Farm Mortgage Corporation are not eligible for deposit under Section 56-312.
Section 56-313 of the Code of 1933 exempts domestic mutual fire insurance companies from the provisions requiring that an emer~ gency assessment clause be inserted in each policy, on condition that they deposit with the State Treasurer $100,000 in bonds of the United States, or of the State of Georgia, or of some county or municipality of the State of Georgia, or "such other securities as the Insurance Commissioner shall deem adequate." I am of the opin~ ion that if the Insurance Commissioner shall deem Federal Farm Mortgage Corporation bonds adequate for the purpose of this sec~ tion, such bonds may be received for deposit thereunder.
Section 56-321 provides for a certain deposit by industrial life insurance companies, which shall be in the form of "United States, State, county or municipal bonds." For the reasons heretofore stated, I am of the opinion that Federal Farm Mortgage Corporation bonds are not eligible for deposit under this section.

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Section 56-322 of the Code of 1933 requires the deposit of securities by life indemnity or insurance corporations organized to do business upon the assessment plan. This deposit is to be in the form of "stocks or bonds approved by" the State Treasurer. Subject to approval by the State Treasurer bonds of Federal Farm Mortgage Corporation are eligible for deposit under this section.
Section 56-1107 requires fidelity and surety companies qualifying to become surety upon bonds required of public officers to deposit bonds of the United States or of this State, in the amount of $25,000. Section 56-311 requires the same deposit of any surety or bonding company writing any bonds in this State. I am of the opinion for the reasons hereinbefore stated, that Federal Farm Mortgage Corporation bonds are not eligible for deposit under Section 56-311 or under Section 56-1107.
INSURANCE-Jeweler contracting to keep in repair for a certain .length of time all watches sold by him is not doing an insurance business
December 23, 1935 Ron. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the 20th inclosing a copy of an advertisement which is being published by a jeweler of Atlanta, and in which he guarantees to repair, without cost to the purchaser, for a period of twelve months on a watch sold by him which is injured or damaged by any cause whatever.
You desire my opinion as to whether the sale of watches under such an agreement amounts to insurance within the meaning of the insurance laws of Georgia.
With your letter you transmit a brief submitted to you by Mr. Charles W. Bergman, an Attorney of this city who represents a group of Atlanta jewelers, and who contends that the contracts referred to are contracts of insurance.
I am familiar with the authorities cited by Mr. Bergman. While it is true that any contract whereby one contracting party promises to indemnify another against losses sustained by reason of future contingencies is more or less in the nature of a contract of insurance, in my opinion it would require a strained construction of the insurance laws to hold that a contract of the nature indicated above falls within the definition of insurance as used in our law.
Insurance ordinarily is a mere contract of indemnity. I do not think it should be construed to cover a contract for the sale of a watch, whereby as a mere incident to the sale the seller agrees to repair it without charge for a period of twelve months. Should the Department of Insurance take such a position, in my opinion it would be taking a position which it would be unable to sustain in court.

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INSU!l-ANCE-Investment of capital stock of fire insurance compames
January 14, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your request for an opinion with reference to the application for the investment of a portion of the capital stock of a fire insurance company in assets enumerated by Section 56-224 of the Code of 1933.
In my opinion Section 56-207 of the Code of 1933 enumerates the classes of securities in which the capital stock of a domestic insurance company may be invested. Assets in addition to the capital stock may be invested in securities such as those listed in Section 56-224, hut I do not think this Section applies to investment of the original capital stock. Accordingly, I am of the opinion that the capital stock of a domestic insurance company in the minimum amount of $100,000 for each class of insurance must be paid in cash, or invested in bonds of the United States, or of this State, or of the cities or counties of this State, estimated at their cash market value, or in mortgages on real estate worth twice the amount for which the same is mortgaged and that such investments must be approved by the Secretary of State, or in the event of his disqualification by the Comptroller General, before such a domestic insurance company can begin to transact business.
INSU!l-ANCE-Investment of capital stock of fire insurance compames
January 16, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
This letter is written to supplement the opinion furnished you under date of January fourteenth with reference to investments of the capital stock of fire insurance companies.
Since writing you this letter my attention has been called to Section 56-227 of the Code of 1933 which provides as follows:
"Every insurance company organized and doing business by virtue of the laws of this State shall, to the extent of the paid-in outstanding capital stock of such insurance company, if it shall be a stock corporation, keep its funds and assets invested in the classes of securities defined and described in sub-paragraphs (a), (b), (c), (d), (e), (f), and (h) of Section 56-224." I am of the opinion that this Section should be construed with Section 56-207 and that so construing them they provide that before an insurance company may begin to transact business it must pro-

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cure a charter from the Secretary of State and have $100,000 capital for each class of insurance paid in cash or invested in securities of the classes enumerated in Section 56-207. If the insurance company is chartered, and receives from the Insurance Commissioner a permit or license to do business in this State, it must at all times keep the amount of its capital stock invested in the assets enumerated in Section 56-227. Section 56-207 relates to the amount of capital stock which must be paid in, and the assets in which such capital stock must be invested, before the company is licensed to do business. After it receives a license to do business it may proceed under Sections 56-224 and 56-227.
INSURANCE-Group insurance policy issued to banks to cover loans in their personal loan departments
February 10, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of February seventh inclosing a communication from Mr. F. M. Akers, Jr., of the Prudential Insurance Company of North America with reference to their group insurance policy issued to banks to cover loans in their personal loan departments.
I know of no provision of the Georgia law which would prevent the bank requiring its borrowers to pay all or a portion of the premium on any certificate. As I wrote you before, a bank cannot go into the insurance business. If the bank simply obtains a blanket policy covering all of its borrowers and charges the borrower a stipulated premium, without any reference to the cost of carrying insurance on that borrower, I think it would be in the insurance business in violation of the Georgia law. If it is not doing this, however, but simply passes on to the borrower the actual cost of carrying his insurance, that is the premium which the bank pays on it, I think the transaction is authorized by our law.
Neither of the letters from Mr. Akers covers this particular phase of the matter.
INSURANCE-Similar names of two insurance companies is a matter to be determined between them and does not come under the jurisdiction of the Insurance Commissioner.
June 25, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of June 24th inclosing a protest by the President of the State Mutual Life Assurance Company of Worcester, Massachusetts, against the use of the words "state mutual" by any other insurance company in the State of Georgia.

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I have examined Section 106-201 of the Code of Georgia to which reference is made. In my opinion it has no application to an insurance company. By its express terms this section is limited to certain corporations therein enumerated.
The State Mutual Insurance Company of Rome, Georgia, was incorporated, as I understand it, in the State of Florida. It has applied for and obtained a license to do business in the State of Georgia. The fact that the name of this corporation may be somewhat similar to that of another insurance corporation would not, in my opinion, authorize the Insurance Department of Georgia to deny it a license, or revoke the license already granted.
If the use by the State Mutual Insurance Company of that name infringes upon any right belonging to the State Mutual Life Assurance Company of Worcester, :Massachusetts, the controversy is one between the two companies which must necessarily be determined by the courts. In other words, if the Rome company is violating any right of the Massachusetts company, the remedy of the niassachusetts company is to take appropriate action against the Rome company in the proper court having jurisdiction of that company. There is nothing in our law which would authorize you to revoke the license of the company for such a reason and you have no authority to require it to discontinue the use of the name under which it was chartered.
INSURANCE-Indemnities paid by foreign insurance companies not qualified to do business in Georgia subject to penalty
July 10, 1936 Hon. A. R. Wright Deputy Insurance Commissioner Dear Mr. Wright:
I have your letter of the lOth inclosing letters from Mr. E. S. Stoddard of Savannah, Georgia, with reference to a certificate issued to ni. S. Herman, representative of Libby, McNeill and Libby, on his automobile, privately owned by Mr. Herman.
nir. Stoddard states that this certificate covers liability and property damage, and was issued by the Security Mutual Casualty Company of Chicago, which is not licensed to do business in the State of Georgia. He further states that it was issued in pursuance of a fleet coverage policy written by the company for Libby, McNeill & Libby.
Whether or not the provisions of Section 2 of the Act of March 28, 1935, (Georgia Laws, 1935, pp. 139-143) would apply to a case such as that suggested by Mr. Stoddard depends upon the terms of the contract of insurance to which he refers. I think a foreign corporation would be authorized to procure insurance covering its own liability on account of any operations by its employees for and on its behalf in a non-licensed company, without violating the provisions of the Act of 1935. If, however the certificate to which you refer

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indemnifies the Georgia citizen against his own personal liability, it seems to me that it would cmne within the provisions of Paragraph 2 of Section 2 of the Act of 1935. I doubt however, if the insurance company issuing such a policy could be said to be doing business within the limits of this State within the meaning of Paragraph 1 of that Section, if the contract was in fact negotiated outside of the State, although one of the persons protected against liability might reside within the State.
You are of course, familiar with Section 56-502 of the Code of 1933 relating to policies of insurance in non-licensed companies. This section, however, puts no penalty upon policy holders who accept such a policy. It simply provides that any person who shall do any of the acts referred to in Section 56-501 as constituting the acts of an agent on behalf of an unlicensed company shall be personally liable to the holder of the policy for any loss covered by the policy to the same extent as the company would be liable, but this penalty shall not apply to an adjuster or inspector from whom a citizen of this State has himself purchased insurance if the purchaser of the insurance has paid the license fee, etc. This section puts no penalty of any sort upon the purchaser of the insurance.
The only penalty provided by Paragraph 2 of Section 2 of the Act of 1935 as against the Georgia resident who accepts a policy in a non-admitted company, is that if he fails to pay the license fee he shall be subject to a penalty of "10% of any such sum as may be paid as indemnity by such insurer to the assured in the event of a loss." It is provided that this penalty may be collected upon the establishment of such fact in a civil suit by any informer, one-half of the recovery going to the informer and the other half to the State; or the penalty may be recovered in a suit brought in the name of the State by the Solicitor General of the proper circuit. However, it does not appear that any penalty accrues at all unless the insured collects as indemnity from the company. If he does, and has failed to pay the license fee, etc., he is subjected to the penalty, but no penalty accrues at all unless he does collect indemnity.
Paragraph 3 of Section 2 of the Act has reference only to licensed companies. Such licensed companies are subject to a penalty to be assessed by the Insurance Commissioner and collected in the way and manner provided by that paragraph. I do not think this Section has any application, however, where the company is a non-admitted company. If the holder of this certificate has collected any indemnity from the company the question could be tested by a suit brought by the solicitor general of a circuit or by some informer. If, however, he has collected no indemnity it does not appear that any case could be maintained against him. The statute does not seem to afford a remedy to prevent this sort of an operation except with respect to licensed companies, but only to prescribe a penalty to be collected out of the Georgia insured based upon the amount of indemnity which he may collect from the company.

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INSURANCE-Enlargement of business of mutual fire insurance company, new qualifications, etc.
September 21, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
The Department of Law has had before it for some time the application for amendment to the charter of The Co-Operative Fire Insurance Company of Macon, Georgia. This Company desires to enlarge its activities so as to write business of a general casualty nature, including casualty insurance on automobiles and automobile theft insurance.
This Company was originally incorporated under the Act of 1893 as a cooperative or mutual fire insurance company. The Act of 1893 (Code of 1933, Section 56-202) provides that any number of persons not less than five may form a company upon complying with that statute, and that the application for charter should, among other things, set forth "the kind or kinds of insurance they propose to carry on." This section seems to me to contemplate chartering an insurance company to carry on more than one kind of insurance business. There are certain limitations and restrictions as to capital stock, assets, etc. for companies engaged in the life insurance and for companies engaged in other forms of insurance business. However, there appears to be nothing in the statute which would prevent a company engaging in two classes of insurance business provided it complies with all the conditions of the statute regulating each particular class.
The Act of 1893 also provides (Code of 1933, Section 56-1402) that the provisions of that Act with reference to the incorporation of insurance companies may be applied to the formation of mutual or cooperative fire, live stock, life or accident insurance companies, but that applicants for such a charter need not set forth the amount of the proposed capital stock or the number of shares of the same, and that it shall not be necessary for the Secretary of State to incorporate in his certificate of incorporation any reference to the capital stock of such a company.
Section 56-804 of the Code of 1933 provides for amendments to the charters of fire insurance companies so as to enable them to write policies covering losses ascribable to lightning, explosives, storms of every character, earthquakes, hail, frost, snow, riot and civil commotion, theft and sprinkler leakage.
While it is provided by this section that such additional insurance may be written only upon the charter of the company being amended so as to so authorize, and that the application for the proposed amendment shall be authorized by a two-thirds vote of the entire capital stock of the company at a meeting of the stockholders called for the purpose by resolution of the board of directors, I am of the opinion that this provision requiring assent to the amendment by two-thirds of the entire capital stock does not apply to mutual com-

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panies which have no capital stock, but that the section is sufficiently complied with when the proposed amendment is assented to by twothirds of the members of the company and two-thirds in amount of the outstanding policies. In other words, I am of the opinion that this amendment to the insurance laws, embodied in Section 56-804, must be construed in pari materia with Section 56-!W~ relating to the incorporation of insurance companies and Section 56-1402 extending the provisions of Chapter 56-2 to mutual or cooperative companies, that so construing these sections, the provisions of Section 56-804 relating to capital stock cannot be held to apply to mutual companies.
I am therefore of the opinion that the Cooperative Fire Insurance Company may amend its charter so as to authorize it to write the classes of business set forth in Section 56-804. I do not think, however, that this Section or Section 56-140~ will permit the amendment of the charter of a mutual company so as to enable it to engage in a general casualty insurance business. This is true for the reason that Section 56-140~ authorizes the application of Chapter 56-~ to the formation of mutual or cooperative fire, live stock, life, or accident insurance companies, but does not permit the application of the provisions of that Chapter to mutual or cooperative casualty insurance companies.
It is my opinion that a mutual fire insurance company may amend its charter only to the extent authorized by section 56-804, and that in so far as the application for amendment of the Cooperative Fire Insurance Company is within the provisions of Section 56-804, it should be approved.
Of course, this company in carrying on its enlarged business must comply with the other provisions of law relating thereto.
INSURANCE-Group hospitalization plan is insurance business
September 24, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the ~~nd submitting a communication from the Clerk and Treasurer of the City of Elberton embodying a proposed plan of operation whereby persons in Elbert County may, upon the payment of an application fee and a stipulated monthly assessment or premium be entitled to hospitalization in the hospital operated by the City.
In my opinion the proposed plan is a contract of insurance and cannot legally be put in operation without a compliance with our insurance laws. This, of course, would require not only the payment of a license fee but the maintenance of legal reserve and the employment of the amount of capital required by law.
As you will recall this department went very carefully into this matter last year before and during the session of the legislature with

191
Dr. Fischer of Atlanta, who was very much interested in devising some plan of hospital insurance. We have had numerous plans suggested. All of them are insurance plans. None of them can be put in operation without complying with our insurance laws.
Some effort was made at the last session of the General Assembly to secure the passage of a bill which would permit the formatiQn of association with this company, but the plans did not materialize. It may be that the next session of the General Assembly will do this. Until some legislative action is taken, in my opinion, it is impossible to formulate and put in operation any plan of hospitalization of this sort without complying with our insurance laws.
INSURANCE-Reciprocal insurance companies, whether incorporated or unincorporated, must comply with the Georgia statutes before doing business in this State
October 13, 1936
Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the lOth with a copy of the communication from Messrs. Jay & Searcy of Thomasville with reference to reciprocal fire insurance companies doing business in this State.
I note you refer to my letter of February ~6, 1934, to Mr. Lewis A. Irons, then Deputy Insurance Commissioner. I have examined my office copy of this letter to you and it seems to me that it covers the situation you have in mind at this time.
In my opinion, a reciprocal insurance company, whether incorporated or unincorporated, must comply with the laws of Georgia before doing business in this State. You will note from examination of my letter of February ~6th that the Act of December 14, 1933, enacted following the decision of the Supreme Court in Fort v. State, 92 Ga. 8, expressly provides that all laws and parts of laws regulating the business of insurance in this State shall be applicable to individ-. uals, associations, and corporations alike. This Act is now carried as Section 56-~31, Code of 1933.
Under the express language of the statute the insurance laws of this State apply to reciprocal companies. The fact that each insured is also an insurer would not operate to exempt the association from the provisions of the Georgia law. Such an association must comply with our insurance laws in order to do business in this State.

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INSURANCE-Organization of a co-operative or mutual fire insurance company
October 26, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the 23rd inclosing a communication from Mr. Hoyt H. Whelchel of Moultrie, Georgia, dated October 23rd, 1936, with reference to the organization of a mutual or cooperative fire insurance company under the provisions of the Act of 1923. Mr. Whelchel's letter is supplemental to one sent this department some days ago by you to which we replied on yesterday.
The particular question upon which Mr. Whelchel desires your opinion, and upon which you desire my opinion, is whether the provisions of sub-section (c) of Section 56-1414 of the Code of 1933 require, as a condition precedent to the issuance of a license to such company by the Insurance Commissioner, that the company, in addition to holding a bona fide application for insurance from at least 20 members covering not less than 200 separate risks, each within the limits prescribed, shall have collected on such policies premiums aggregating not less than $10,000.00.
Section 56-1414 of the Code of 1933 is as follows: "No corporation organized under this law shall issue policies or
transact any business of insurance unless it shall comply with the conditions following, nor until the Insurance Commissioner has, by formal license, authorized it to do so, which license shall not issue until the cooperation has complied with the following conditions:
"(a) It shall hold bona fide applications for insurance upon which it shall issue simultaneously, or it shall have in force, at least 20 policies to at least 20 members for the same kind of insurance upon not less th~m 200 separate risks, each within the limit herein prescribed for the maximum single risk.
"(b) The maximum single risk shall not exceed 20 per cent. of the admitted assets or three times the average risk or one per cent. of the insurance in force, whichever is the greatest, any reinsurance taking effect simultaneously with the policy being deducted in determining such maximum single risk.
"(c) It shall have collected a premium upon each application, which premium shall be held in cash or securities in which insurance companies are authorized to invest, and which shall aggregate not less than twice the maximum single risk assumed subject to one fire, nor less than $10,000.00.
"(d) It shall satisfy the Insurance Commissioner that its financial condition, methods of operation, and manner of doing business are adequate to meet its obligations to all policyholders in this State." It seems to me that the language of sub-section (c), in plain and unambiguous terms, requires that the premiums collected upon the

193

applications taken by the company shall aggregate not less than

$10,000.00. It will be noted from an examination of this sub-

section that it is provided that the company shall have collected a premium upon each application, which premium shall be held in cash or invested in securities authorized by law, and shall aggregate

not less than twice the maximum single risk assumed subject to one fire, nor less than $10,000.00. The first clause of the sub-section that the company "shall have collected a premium upon each appli-

cation," is qualified by both of the succeeding clauses, one requiring

the investment of these premiums, or that they be held in cash, and the other prescribing the amount which they shall aggregate. The conjunctive word "and" clearly makes the clause reading "which

shall aggregate not less than twice the maximum single risk assumed

subject to one fire, nor less than $10,000.00" modify or qualify the

first clause requiring the collection of premiums upon each appli-

cation, and requires the construction that the General Assembly intended by the language used to provide as a condition to the issuance of a license that the company must have applications upon which the premiums shall aggregate not less than $10,000.00. If the maximum single risk assumed subject to one fire should be greater than $5,000.00, of course the maximum amount of premiums to be collected would be increased proportionately.
I note the provisions of Section 56-1421, which authorizes any

director, officer or member of any such company, or any other person,

to advance to such company any sum of money necessary to enable

it to comply with any of the requirements of the law, such advances to be made under the terms and conditions provided by this section. It is, of course, a well recognized rule of construction that the legis-

lative intent in the enactment of any statute must be determined

from a consideration of the entire statute and all of its various portions. However, there is no conflict between Section 56-1414 and Section 56-1421, and the provisions of the latter section cannot, in

my opinion, be held to modify the plain language of sub-section (c)

of Section 56-1414.



I have also given consideration to the suggestion of Mr. Whelchel

that it would be impossible to collect $10,000.00 in premiums on 20 policies to 20 members on 200 separate risks unless the risks are much larger than it is customary for insurance companies to write.

This may be true if the amount of the premium is to be limited to the usual and customary premium in such cases. However, sub-section (c) of Section 56-1414 embodies a requirement which must be met as a condition to' the issuance of a license. It cannot be said, therefore, that the limitation of sub-section (a) as to the minimum number of policies which must be in force and the minimum number of risks

which must be assumed, can operate to limit sub-section (c) which relates to the minimum amount of premiums which must be col-

lected.

As a matter of fact, a mutual company is not ordinarily confined

to the usual insurance rates required by other companies, since its assets belong to the policyholders. It occurs to me that the mem-

194

hers of the company who might desire to advance funds under Sec-

tion 56-14~ll could as well afford to pay an increased premium so as

to enable the company to comply with sub-section (c) as to make an

advance under Section 56-14~1.



In considering this matter, I have examined both the printed Act

of 19~1 and the enrolled copy of the original Act which is of file in

the office of the Secretary of State. In each case I find that the con-

junctive word "and" is used in sub-section (c) of Section 56-1414.

Therefore, it is impossible to hold that the limitation of the last

clause of sub-section (c) applies to the minimum amount of assets

which the company must have in cash or securities and not to the

minimum amount of premiums which must be collected. Since this

section is plain and unambiguous it must be given effect in accord-

ance with its express language.

INSURANCE-Who must qualify as an insurance agent
October 26, 1936
Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your recent letter making inquiry with reference to whether or not Mr. W. R. Mitchell who is employed by the Mutual Benefit Health and Accident Association is required to qualify with the Insurance Commissioner of Georgia and pay the occupation tax laid against insurance agents.
Section 56-501 of the Code of 1933, which defines insurance agents is as follows:
"Any person who shall solicit in behalf of any insurance company, or agent of the same, incorporated by the laws of this or any other State or foreign Government, or who shall take or transmit, other than for himself, any application for insurance or any policy of insurance to or from such company or agent of the same, or who shall advertise or otherwise give notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk at any time, or receive or collect or transmit any premium of insurance or make or forward any diagram of any building or buildings, or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company, other than for himself; or who shall examine into or adjust or aid in adjusting any loss for or in behalf of any such company, whether any of such acts shall be done at the instance or request or by the employment of such insurance company, or of, or by, any broker or other person, shall be held to be the agent of the company for which the act shall be done or the risk shall be taken."

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This section was taken from the Act of 1887 as was Section 56-506 relating to the licensing of insurance agents. Accordingly these two sections should be construed together. It is my opinion that any person engaged in performing, for or on behalf of any insurance company, any of the acts or things enumerated in Section 56-501, is an agent of the company within the meaning of Section 56-506; and is required to be licensed by the Insurance Commissioner and pay the license fee of $3.00 prescribed by the latter section.
If such person is a local agent of the company, he is required to pay the occupation tax of $10.00 for each county in which he shall transact or solicit business. If he is a general or special agent he is required to pay a tax of $100.00, which authorizes him to do business anywhere in the State without the payment of any additional tax.
Under the facts n~rrated by Mr. Codding in his letter to you it clearly appears that Mr. Mitchell is the agent of the company within the meaning of Section 56-501 and I am of the opinion that he is subject to the tax required of special or general agents under Paragraph (d) of Paragraph 58 of the General Tax Act since his duties do not appear to be confined to any particular county or locality.
INSURANCE-Southeastern Cash Night Indemnity Company is doing an insurance business and must qualify
October ~8, 1936
Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the ~7th inclosing a communication from Hon. George Hains, Solicitor General of the Augusta Circuit, with reference to the operations of the Southeastern Cash Night Indemnity Company. I am returning the letter from Mr. Hains herewith.
As stated by Mr. Hains, Section 56-~31 of the Code of 1933 makes all laws regulating the business of insurance applicable to individuals as well as corporations.
Section 56-501 of the Code of 1933 defines insurance agents. Section 56-9905 makes it illegal for any person to do or perform any of the acts specified in Section 56-501 for any insurance company, or agent of such company, unless the company has qualified with the Insurance Commissioner of Georgia. While Section 56-9905 refers to the failure of an insurance company to qualify, I think the same rule would apply where the action was taken on behalf of an individual conducting an insurance business who had likewise failed to qualify.
In addition to the fact that the owner of this concern and the agents operating for him are subject to prosecution for violating the insurance law, it seems to me that they are also engaged in running a lottery in violation of Section ~6-6501 and Section ~6-650~. As I

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interpret the so-called insurance policy issued by this company the right of the policyholder to the indemnity provided for by the contract depends solely on the chance that he may be the winner of a prize and not be present to collect it. I think this is a lottery within the meaning of the Code Sections referred to, in view of the decision by our Supreme Court in Meyer v. State, 112 Ga. 20. Mr. Hains is no doubt familiar with the number racket cases Cutliff v. State, 51 Ga. App. 40; Hughes v. State, 52 Ga. App. 199; and Flynn v. State, 52 Ga. App. 382. There is now pending in the Court of Appeals the case of Roberts v. State from Crisp Superior Court, wherein the defendant was convicted under the lottery statute in connection with the operation of the so-called bank nights in moving picture theaters where the lower court held that the bank night operations were lotteries within the meaning of the Georgia law. I do not know, of course, what conclusion will be reached by the Court of Appeals but it occurs to me, however, that if the operation by the moving picture theater is a lottery, that the operation by Mr. Wilcox is also a lottery, since the obligation to pay on his part is based upon the same chance or hazard as the obligation to pay of the moving picture theater owner.
INSURANCE-Plate glass insurance written by mutual fire insurance companies is limited
November 23, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the 19th with reference to the Atlantic Mutual Fire Insurance Company of Savannah, Georgia, in which you request my opinion as to whether this company may issue plate glass insurance policies.
I have not examined the charter of this company but I assume that it was incorporated under the Act of 1893, now embodied in Chapter 56-2 of the Code of Georgia of 1933 or under the Act of 1923 providing for the incorporation of mutual fire insurance companies.
The Act of 1893 (Code of 1933, Section 56-202) provides that any number of persons, not less than five, may form a company upon complying with that statute and that the application for charter shall, among other things, set forth "the kind or kinds of insurance they propose to carry on." This section seems clearly to contemplate incorporating an insurance company to carry on more than one kind of insurance business. There are certain limitations and restrictions as to required capital stock, hazards, etc., for companies engaged in the life insurance business and for companies engaged in other forms of insurance business. However, there seems to be nothing in the statute which would prevent a company from engaging in two classes of insurance business upon complying with all of the requirements of the statute regulating each particular class.

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The Act of 1893 (Code of 1933, Section 56-1402) also provides that the provisions of that Act with reference to incorporation of insurance companies may be applied to the formation of mutual or cooperative fire, livestock, life or accident insurance companies, so far as they may be made applicable.
There is no provision of our statute which extends the Act of 1893. to the formation of mutual casualty companies incorporated for the purpose of carrying on a general casualty business.
Section 56-804 of the Code of 1933, which is taken from an Act of 1921, authorizes fire insurance companies to cover by their policies losses ascribable to lightning, explosives, storms of every character, earthquakes, hail, frost, snow, riot or civil commotion, theft and sprinkler leakage, provided a proper amendment to the charter is granted by the Secretary of State.
The Act of 1923 relating to the formation of mutual fire insurance companies, as amended (Code of 1933, Section 56-1408) authorizes a company organized under that Act to insure against "loss or damage to property and loss of the use or occupancy by fire, lightning, hail, tempest, flood, earthquake, explosion, fire ensuing, and against loss or damage to person or property occasioned by the operation of motor vehicles duly licensed by the Public Service Commission."
A mutual fire insurance company, incorporated under the laws of Georgia, must be incorporated either under the Act of 1893 and Section 56-1402 of the Code of 1933 which extends the provisions of that act to the incorporation of mutual or cooperative fire, livestock, life or accident insurance companies, or under the Act of 1923 which authorizes the formation of mutual fire insurance companies and stipulates the kind of insurance contracts they may enter into.
Neither of these statutes authorizes a mutual insurance company to enter upon general casualty contracts, and there does not seem to be any provision of our law for the formation of a mutual company to do a general casualty business. I am of the opinion, therefore, that a mutual fire insurance company, incorporated under the laws of Georgia, is permitted to insure plate glass only against the hazards described in Sections 56-804 and 56-1413 of the Code of 1933. If such company is organized under the Act of 1893, it may insure plate glass only against the hazards enumerated in Section 56-804. I think this is true irrespective of any provision in the charter of the corporation to the contrary.
If the Atlantic Mutual Fire Insurance Company is issuing general casualty policies insuring against damage resulting from plate glass breakage, not limited to the causes enumerated in the sections of the code referred to, in my opinion it is issuing contracts which are not authorized by our law.

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INSURANCE-Burial association issuing certificates providing for the payment of a stated sum of money upon death of named member in consideration of the fees and contributions referred to in the certificate is contract of life insurance
December 12, 1936 Hon. A. R. Wright Deputy Insurance Commissioner State Capitol Dear Mr. Wright:
I have your letter of the tenth inclosing a file of correspondence and specimen copies of two certificates issued by the Laurens County Benevolent Burial Association. You request my opinion as to whether these certificates evidence contracts of life insurance.
Each of these certificates provides for the payment of a stated sum of money upon the death of the named member, in consideration of the fees and contributions referred to in the certificate.
Under the ruling by the Supreme Court in Benevolent Burial Association v. Harrison, 181 Ga. 230, these contracts are plainly contracts of life insurance.
JUSTICES OF PEACE_:_Election, when held, and time for qualifying
November 10, 1936 Mr. James T. Dampier Adel, Georgia My dear Mr. Dampier:
Your letter of yesterday inquiring if December 5, 1936, is the date for election of Justices of the Peace and constables of the various districts of Georgia and if so is there any certain date on which applicants must qualify received.
As the matter appeared to be urgent, I wired you as follows: "Justices of the Peace election December fifth. In counties having Australian Ballot candidates must qualify with Ordinaries fifteen days before election. This qualifying date does not apply to counties not having Australian ballot."
I am referring you to Sections 34-1904 and 34-2701 of the Code of 1933. It is the duty of the Ordinary to furnish the ballots for all elections other than municipal elections and party primaries at the expense of the county and it is the duty of the Ordinary to furnish ballots, returns, etc., for the Justice of the Peace election and in counties having the Australian Ballot candidates must register with the Ordinary fifteen days before the date of the election. I do not believe that this would apply in counties that do not have the Australian Ballot.

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VETERANS-Not exempt from license fees laid on barbers and real estate agents
April 4, 1935
Hon. R. C. Coleman, Joint Secretary State Examining Boards State Capitol Dear Dr. Coleman:
I have yours of the fourth instant requesting an opmwn as to whether the Act approved March 15, 1935, amending Section 84-2011 of the Code of 1933 exempts veterans who have a ten per cent. disability, etc., from the payment of license fees as provided in the Act creating the Georgia Real Estate Commission and the Act creating the State Board of Barber Examiners.
In reply I beg to advise that the fees required of applicants under the Act creating the Georgia Real Estate Commission and the Act creating the State Board of Barber Examiners are regulatory in their nature. See Snipes v. Flournoy, 178 Ga. 815. The court said in this case:
"The fee of $25.00, which under the Act is required to be paid, is not an occupation tax, but is regulatory in character, and is intended to provide funds with which the Georgia Real Estate Commission may carry out the intent and purposes of the Act." It was said by the Supreme Court in the case of McKinney v. Patton, 176 Ga. 719, that:
-"The only exemption to veterans afforded by Code Section 1888 (which is substantially the law as amended, except as to the manner prescribed for obtaining such exemption) is an exemption from the occupation tax." (Parenthesis ours) By the same token, this ruling applies to applicants to practice as a barber in this State. It is, therefore, my opinion that the Act approved March 15, 1935, does not operate so as to exempt applicants for a license to deal in real estate or to practice barbering from the payment of the regulatory fees prescribed in the respective Acts creating the Georgia Real Estate Commission and the State Board of Barber Examiners.
BARBER-Licensed barber who fails to renew his license and does not practice for a year and then desires to renew his license and practice may do so by paying one renewal fee
April 11, 1935
Hon. C. A. J\iorrison, Chairman State Board of Barber Examiners State Capitol Dear Mr. Morrison:
I have yours of the lOth instant requesting an opinion as to whether a barber who has been duly licensed for the year 1933, but who did not practice his profession during the year of 1934, and who desires to register and practice for the year 1935 would be required

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to pay a license fee for the year 1934-the year in which he did not practice his profession.
This involves a consideration of Section 12 of the Barber Act which provides in part:
"Certificates of registration issued under the provisions of this Act shall be renewed on or before the 31st day of December of each year by the holder of same paying to said Board a renewal fee of $2.00. Upon failure to so renew such certificate of registration, it shall be revoked and the holder of the same shall be disqualified until all dues up to date of application for reinstatement shall be paid." Under the facts stated in your letter, the certificate of registration expired December 31, 1933. Upon expiration of the certificate, the party in question had two courses open to him, to wit: Either to pay a renewal fee of $2.00, or, under the law, at the expiration of his certificate, he was disqualified to practice further. Under the Barber Act, I do not feel that a renewal fee or any other fees are required of any person who does not practice barbering. Therefore, for the year 1934 when the party in question was not practicing barbering, no fees or dues accrued against him. I am, therefore, of the opinion that when such person applies for reinstatement, he should not be required to pay a license fee for the year 1934.
GEORGIA REAL ESTATE COMMISSION-Disposition of excess funds of said Commission
May 22,1935
Hon. John B. Wilson Secretary of State State Capitol Dear Mr. Wilson:
In answer to your verbal request for an opinion, I beg to advise as follows:
There is now accumulated in the hands of the Joint Secretary, State Examining Boards, from the collections of regulatory fees under the Georgia Real Estate Commission Act (Chapter 84-14, Code of 1933), a sum of money in excess of the amount that has been necessary to pay expenses of said Board. This amount has been accumulating over the years 1932, 1933 and 1934. The query propounded is: What disposition shall be made of these funds?
The Georgia Real Estate Board was created by the General Assembly of Georgia by an Act approved August 14, 1925, (Ga. Laws 1925, pp. 325-337). Section 6 of the Original Act now appears as Section 84-1408, of the Code of 1933, with only such changes in verbiage as to make its provisions conform with the Reorganization Act of 1931 (Chapter 84-1, Code of 1933).
The inquiry must be answered by an interpretation of the language of Chapter 84-1408 of the Code of 1933. The first sentence of the code section provides that funds shall not be used for any other pur-

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poses than those enumerated in Title 84 of the Code of 1933. The second sentence provides that the total expenditures shall not exceed the amounts collected. The third sentence provides that any funds that shall remain in the hands of the State Treasurer at the end of the calendar year, after the payment of the expenses accrued, shall be paid into the general funds of the State. From reading the section, it will thus be seen that the funds to be collected are for the exclusive use of the Real Estate Commission and that the Real Estate Commission is not authorized to incur any expenses in excess of the total amounts collected and if the funds collected exceed the expenses, then the balance, after the payment of such expenses, shall be paid into the general funds of the State.
It is significant that the accumulation of funds has come about since the Act of 1931, known as the Reorganization Act, doubtless due to the consolidation of the various Boards enumerated in Title 84 and the consequent reduction of expenses due to the consolidation effected thereby. Since there has been no change in the language of the original statute and by the provisions of the code section, funds raised under the provisions of this Chapter shall be paid into the general funds of the State, after the payment of accrued expenses, it seems mandatory that whatever balance may now be in the hands of the State Treasurer shall be covered into the general funds of the State.
OPTOMETRY-Who subject to license
June 11, 1935
Hon. F. C. Wilson, President Georgia State Association of Optometrists Valdosta, Georgia Hon. Frederic E. Vaissiere Rome, Georgia Gentlemen:
This will acknowledge your letters of recent date requesting an opinion as to whether, under the Georgia law, a person or corporation who is not a licensed optometrist may employ men who are licensed to practice optometry under an assumed or trade name.
Section 84-1101 of the Code of Georgia of 1933 defines the practice of optometry as follows:
" 'Optometry' or the practice thereof is the employment of any means, other than the use of drugs, for the measurement of the powers of vision and the adaptation of lenses for the aid of same." Chapter 84-11 of the Code provides for the appointment of a Board of Examiners in Optometry and Section 84-1105 of this chapter provides for the examination by said Board of all applicants to practice optometry and prescribes the conditions to be met by such applicants. Among other requirements, applicants for registration are required to pass an examination; it is requir(}d that such applicants shall be twenty-one years of age, of good moral character,

possessed of an education equal to a two years high school course and shall hold a diploma from a school of optometry requiring a two years attendance course and satisfactory to the Board of Examiners; the Board of Examiners must examine the applicants upon certain scientific and mechanical subjects; the applicant must attain a certain average on the examination.
Section 84-1107 provides: "It shall be unlawful for any person to practice optometry in
this State unless he shall have first obtained a license from the State Board of Examiners and filed same with the Clerk of the Superior Court of the county in which such practice is conducted." A penalty for practicing without such a license is prescribed by Section 84-9917. Section 92-1909, which section levies a State tax of $15.00 on
"Each and every practitioner of law, medicine, osteopathy, chiropractic, chiropody, dentistry, and each and every veterinary surgeon, optician, optometrists, etc.," provides that the validity of their license is made contingent upon the payment of the tax herein provided, and by Section 84-9901, it is made unlawful for any person to practice any profession upon which a special tax is levied by the State and charge for same without paying said special tax. . From the sections of our law quoted and cited above, it is very clear that the legislature of this State has recognized optometry as a profession. The language of Chapter 84-11, which defines and regulates the practice of optometry, denotes a clear legislative intent that the practice of optometry is to be limited to and enjoyed by natural and not artificial persons, or legal entities. It is axiomatic that a corporation possesses neither education, skill, nor ethics. In as much as a corporation by its very nature is incapable of possessing
"A good moral character, of possessing an education equal to a two years high school course, of holding a diploma from a school of optometry requiring two years attendance course, and of passing an examination upon scientific and mechanical subjects before the State Board of Examiners," it necessarily follows that a corporation cannot qualify for a license to practice optometry in this State. The practice of optometry is not lawful except for those who have complied with the terms of the statute, and as a corporation cannot comply with such terms or meet the qualifications, it cannot receive the license necessary for the practice of optometry. If, under the law it cannot practice optometry directly, ipso facto, it cannot do so indirectly by employing licensed optometrists to practice for it.
"Quando alliquid prohibitur ex directo prohibeteur et per obliqum," such would simply be subsurgent and an evasion of the law.
Although there is no specific statute which prohibits a corporation from practicing the profession of optometry, the inability of a corporation to obtain a license to do so under the requirements of our statute necessarily circumvents the exercise of such a privilege under our

!l08
law. Furthermore, if our statutes, by necessary implication, did not prevent such practice by a corporation, I am of the opinion that sound public policy, recognizing the necessity that the relationship existing between an optometrist and his patient should be purely personal, would prohibit the same. The practice of optometry by a corporation, a mere legal entity and a function of the law, possessed of no soul, character, skill or learning, would be inimical to such a relationship, and even though the corporation carried on the practice through licensed optometrists, these optometrists, being subject to the will and policies of their employer, would not be free to exercise that degree of personal initiative and professional skill and conduct as would be the case were such optometrists practicing in their own name and behalf.
There have been no decisions from the appellate courts of our State upon this question as relates to the practice of optometry, by a corporation. However, in the case of Boykin v. Hopkins, 174 Ga. 511, our Supreme Court held that the superior courts of this State are without authority to grant charters authorizing the corporations to practice law in this State in any of its branches. See also Atlanta Title & Trust Company v. Boykin, 172 Ga. 437; Matter of Cooperative Law, 198 New York 479; People v. Woodbury Dermatological Institute, 124 A. D. 877; Godfrey v. Medical Society, 177 A. D. 684; Hannan v. Seigel Cooper Co., 167 New York 244; Winslow v. Kansas State Board of Dental Examiners, 223 Pac. 308; State v. Bailey Dental Company, 211 Iowa 78; People v. Painless Parker Dentists, 275 Pac. 298.
In view of the recent decision of the Supreme Court declaring the Act of Congress relative to the N. R. A. unconstitutional, and in view of the further fact that I am not familiar with the rules and regulations promulgated by the Retail Optical Trade Authority at Washington, I am refraining from making any comment upon the question asked in Mr. Vaissiere's letter as to the right of this body to regulate what has been declared to be a profession by the statutes of our State.
EMBALMING-State Board of Embalmers without authority to give life licenses
June 15, 1985 Dr. R. C. Coleman Joint Secretary State Examining Boards Dear Dr. Coleman:
I have your letter of June 15th which reads as follows: "At a meeting of the Georgia State Board of Embalmers in
January, 1935, I was instructed to ask you for an opinion as to the legality of issuance of life exempt renewal cards by the Board to embalmers who have been licensed thirty years. Also whether or not the Board has authority to issue life membership renewal cards to Board members."

The Code of Georgia, Section 84-821, is as follows: "Every registered embalmer who desires to continue in practice
shall annually during the time he or she shall continue in such practice, or the first day of January and not later than the first day of March of each year, pay the Joint Secretary of the State Examining Boards, for the renewal of registration, a fee of not to exceed $5.00, the amount of the renewal fee up to $5.00 to be decided by the Board, which renewal shall be displayed conspicuously in the office of such person, and such renewal shall be recorded in the office of the Ordinary of the county in which it is proposed to carry on such practice, not later than March 1, of the year for which said renewal license was issued, and the Ordinary shall be paid by the licentiate the sum of 25 for this service." It is my opinion that there is no authority in the Georgia State Board of Embalming to exempt any person registered as an embalmer from the renewal of his registration fee not exceeding $5.00. The Board has authority to reduce the fee but has no authority to remit the same of discriminate between registered embalmers.

ARCHITECTs-Rules and regulations governing nonresident architects practicing in this State

July 19, 1985

Hon. E. Oren Smith, President

State Board for the Examination and

Registration of Architects

Columbus, Georgia

Dear Mr. Smith:

This will acknowledge the request of the State Board for the

Examination and Registration of Architects for an opinion as to the

authority of the Board to promulgate and enforce a rule that all out

of State architects, not registered in Georgia, who desire to do a proj-

ect or projects in this State shall first file application with the Board

and associate with a registered architect in Georgia.

Acting under the authority of Section 84-307 of the Code of Geor-

gia of 1933, which section vests in the Board the authority to:

"Adopt all necessary rules, regulations and by-laws, not in-

consistent with this chapter and the Constitution and laws of this

State and of the United States, to govern . . . . all other matters

requisite to the exercise of its powers, the performance of its

duties, and the transaction of its business under the provisions of

this chapter."

.

I am of the opinion that your Board has the power to promulgate

and enforce such a rule or regulation.

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BARBERING-Authority of State Board of Barber Examiners to specify equipment to be used in teaching barbering and beauty culture; barbers-how reinstated
August 27, 1935 Hon. C. A. Morrison, Chairman State Board of Barber Examiners State Capitol Dear Mr. Morrison:
I have yours of the 26th inst. requesting a ruling on Section 11 (a) of the Barber Law, which is codified as Section 84-411 of the Code of Georgia of 1933, relative to the right of the Board of Barber Examiners "to specify equipment to be used in teaching beauty culture and barbering;" and asking whether under Section 12 of the Barber Law (Section 84-412 of the Code of 1933) where barbers fail to renew their licenses on or before December 31 of each year and the Board revokes such licenses, the former licensees whose licenses have been revoked may be required to make another application and take another examination, or whether such licensees may have their licenses reinstated by the payment of past due renewal fees.
In answer to your first question, I refer you to this language in Section 84-411:
"Said Board shall have the right to pass upon the . appointments . . . . in said barber school or college." Construing this language in connection with the context of this section, which requires persons desiring to operate or conduct a barbers' school or college, "to first secure from said Board a permit to do so," I am of the opinion that the term "pass upon" cannot be construed to give the Board power to "specify" equipment, although the word "appointments" is used in the sense of "equipment" in this statute. The word "specify" is defined in the New Century Dictionary
"To mention or name specifically or definitely; state in detail; also, to name or state as a condition or requisite" whereas the term "Pass upon" as used in the statute implies the power to adjudge the adequacy of the appointments, or equipment, to be used in a barber school or college. This is a rather fine-spun distinction for after all in passing upon the question as to whether the Board shall issue a permit to a barber school or college the Board can indirectly require the applicant for such permit to maintain or procure the equipment which the Board might specify, had it the power to do so. This section vests the Board with a rather wide discretion as to whether a permit shall or shall not be issued to an applicant, and of course this discretion, although very broad and comprehensive, must be exercised in a reasonable manner, not arbitrarily or capriciously. In answer to your second question, I am of the opinion that where the Board revokes a certificate of registration, acting under the authority of Section 84-412, the Board would be authorized to reinstate the licenses of the person whose certificate was revoked upon the payment by such person to the Board of "all dues up to the date of

application for reinstatement" which might have accrued since his license was revoked. I do not think that there is any provision contained in the Barber Law which gives the Barber Board the power and authority to require a person whose license has been revoked on account of nonpayment of renewal fees to take another examination as a condition precedent to reinstatement.
This conclusion is fortified by the last sentence of Section 84-412, which provides:
"Upon failure to so renew such certificate of registration, it shall be revoked and the holder of same be disqualified until all dues up to date of application for reinstatement shall be paid," and by the further fact, as stated above, that the Barber Law makes no provision for an examination of an applicant for reinstatement.
CHIROPODY-Construction of Act regulating the practice of chiropody
December 12, 1935 Dr. G. T. Dowling, Chairman Board of Chiropody Examiners Mortgage Guarantee Building Atlanta, Georgia Dear Dr. Dowling:
I have yours of the 5th inst. inclosing letter of Dr. Melvin Sutker of Savannah, together with a newspaper clipping announcing the opening of a "foot clinic" by "Dr. R. L. Heines." You request an opinion as to whether under the Act of 1933 (Georgia Laws 1933, page 115) regulating the practice of chiropody, a member of the Chiropractic profession is permitted to advertise himself to the public as Dr. Heines is doing.
It will be noted that Dr. Heines does not hold himself out as either a chiropodist or as a chiropractor, and he merely states that he has "studied foot adjustment" from the greatest doctor of adjusting feet in the world" and he invited the public to "come in and have Dr. Heines diagnose and adjust them (feet) scientifically with the latest and best foot adjuster." In your letter you state that you have obtained information from Dr. Coleman's office that Dr. Heines was g_ranted a license in April, 1932, to practice the chiropractic professwn.
Chapter 84-5 of the Code of Georgia of 1933 deals with the qualifications, examination and scope of the practice of chiropractors. Section 84-501 provides:
"The term 'chiropractic' as used in this Chapter means the adjustment of the articulation of the human body, including ilium, sacrum and coccyx, and in the use of electricity X-ray photography, but the X-ray shall not be used for therapeutical purposes." In considering this definition, it is noted that chiropractors licensed to practice have the right to make adjustments of the articulation

207

of the human body. Articulations, as you know, means a joint or

juncture between bones in a skeleton of a vertebrate. Although it is

generally understood that the chief adjustments of the articulation

of the human body are made by chiropractors upon the spinal

column, nevertheless, under the definition of chiropractic as given

above, a chiropractor's field is not limited to any particular portion

of the human body, but extends to every portion of the human body

where there is a joint or juncture between bones in the skeleton. Of

course, this would include the feet.

Section 84-509 of the Code provides: "Chiropractors who have complied with the provisions of this

Chapter shall have the right to adjust patients according to specific

chiropractic methods and shall observe State, municipal and

public health regulations, sign death and health certificates, re-

porting to the proper health officers the same as other practitioners.

Chiropractors shall not prescribe or administer medicine to

patients, perform sur~ery, nor practice obstetrics or osteopathy."

Thus it is seen that in the adjustment of the articulations of the human body, a chiropractor cannot perform surgery. Therefore, a

chiropractor could not remove corns or callosities from a patient's foot by the use of surgical instruments. H a chiropractor undertook to do so, he would then be subject to the provisions of Chapter 84-6

regulating the practice of chiropody, as he would be practicing

chiropody, as defined by Section 84-601 of the Code, and would be guilty of a misdemeanor (Section 84-9906).

Section 84-601 of the Code defines chiropody as: "The diagnosis, medical, surgical, mechanical, manipulative

and electrical treatment limited to the ailments of the human foot

and leg. No chiropodist shall do any amputation or use any anaesthetic other than local."

In construing an Act of Congress for the District of Columbia to

regulate the practice of podiatry, said Act defining podiatry as

follows:

"Podiatry (or chiropody) is hereby defined to be the surgical,

medical or mechanical treatment of any ailment of the human foot,

except the amputation of the foot or any of the toes, and, also,

except the use of an anaesthetic other than a local one,"



the Court of Appeals of the District of Columbia held:

"We are of the opinion that the act is not intended to interfere

with the general practice of any recognized branch of medical science; nor that a general practitioner, in any established branch

of medical science, shall be limited in the treatment of his patients to all parts of the body except the foot, which, except in cases of

surgical treatment involving amputation, shall be reserved for the podiatrist."

In this case, Howerton was convicted of practicing podiatry with-

out having first passed the examination required by law. He was a

duly licensed osteopath, and the acts upon which his conviction was

based were that he gave some treatments to a fellow osteopath for a

~08
sprained foot, consisting of simple massage or manipulation with the bare hands, and a similar massage with a small device in one hand consisting of a rubber nodule which enabled defendant to more easily and effectively manipulate the bones and tissues of the foot. The Court of Appeals of the District of Columbia reversed the conviction. See Howerton v. District of Columbia, 289 Fed. 628. See also State v. Armstrong, 225 Pac. 491, 33 A. L. R. 835.
In view of the Act regulating the practice of the chiropractic profession, construed in connection with the advertisement inclosed in your letter, it does not appear that Dr. Heines is violating the Act regulating the practice of chiropody by thus advertising to the public that he can diagnose and adjust scientifically .the human foot. There is n9thing in the act regulating the chiropractic profession which prohibits a chiropractor from advertising as a specialist in the adjustment of the articulations of any particular portion of the human body. As stated above, however, Dr. Heines could not, under his license as a chiropractor, perform any acts of surgery upon the feet.
I am returning Dr. Sutker's letter of November 6th.
CHffiOPODY-chiropodist subject to professional tax; licensing of chiropodists
August 28, 1986 Hon. G. T. Dowling, Chairman State Board of Chiropody Examiners 404 Mortgage Guarantee Bldg. Atlanta, Georgia Dear Doctor:
I have yours of the 27th instant requesting an opinion as to whether the members of your profession are subject to the professional tax of $15.00 for the year 1933.
Paragraph 3 of the General Tax Act of 1927 (Georgia Laws 1927, p. 56) levies
"Upon each and every practitioner of law, medicine, osteopath, chiropractic, chiropodist, and dentistry, etc., charging for their services as such, $15.00." It is further provided in this section that no municipal corporation or county authority shall levy or collect an additional tax on the professions, businesses or occupations enumerated above. This provision of the General Tax Act was in effect on January 1, 1933, and is contained in the Code of 1933 as Section 92-1909. I do not think that the fact that the Act of 1933 (Georgia Laws 1933, p. 115) regulating the practice of chiropody and requiring a license of persons desiring to practice said profession in this State, which said Act was not approved until March 24, 1933, affects in the least the question of liability for this tax on the part of anyone who was practicing chiropody as of January 1, 1933, even though such practice was being conducted without a professional license from the

209
State. The only practical effect that the Act of 1933 has insofar as this tax on chiropodists is concerned is to more clearly define the class of persons upon whom the tax is imposed.
You also request my construction of that portion of Section 3 of the Chiropody Act which reads as follows:
"Any chiropodist graduating from any accredited College of Chiropody may be granted the privilege to practice until the following examination by his making application to the Board , and paying fee," as to whether or not this Section of the Act is mandatory upon the Board or leaves it within the sound discretion of the Board either to grant or refuse "the privilege to practice until the following examination." Under the language above quoted, I am of the opinion that the legislative intent was to vest the Board with the discretion of granting or refusing to grant a chiropodist graduating from an accredited College of Chiropody, the privilege of practicing until the following examination. If it were mandatory upon the Board to grant such persons the privilege to practice until an examination could be held upon the mere application of such persons and the payment of the required fee, it is easy to conceive how a person who might not be of good moral character (one of the requirements of an applicant to practice) could obtain a temporary right to practice and the public would not be protected.
VETERINARYEXAMINERs-Who constitutes board
December 16, 1986 Dr. Harold B. Hodgson, President Georgia Board of Veterinary Examiners 130 Hall Street Athens, Georgia Dear Dr. Hodgson:
I have your letter of December 12th in which you state that there is some confusion as to who constitutes the members of the Georgia State Board of Veterinary Examiners. You state that you desire to call a meeting of the Board and wish to know whether you should notify those members who have been appointed by the Governor and indorsed by the State Veterinary Association, or whether you should notify members who have been appointed by the Governor and who have not been indorsed by the State Veterinary Association.
The records in the Governor's office show that the term of office of Dr. J. C. Schwenke as a member of the Board of Examiners expired September 16, 1933; that the Governor designated and appointed Dr. J. W. Mann of Cordele to succeed Dr. Schwenke and submitted the appointment to the Georgia State Veterinary Association; that the Association concluded its annual meeting and adjourned without taking any action on the appointment, and that the Governor on October 16, 1935, appointed Dr. J. W. Mann of Cordele a member of the Georgia State Board of Veterinary Examiners to succeed Dr. Schwenke for a term of five years from September 16, 1933.

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The records in the Governor's office also show that the term of Dr.
J. M. Sutton as a member of the Board expired on September 16, 1934; that the Governor appointed Dr. J. L. Miller as a member of
the Board and communicated his appointment to the Georgia State Veterinary Association; that the Association concluded its annual meeting and adjourned without taking any action upon the appointment and without rejecting or approving the same. Thereupon the
Governor, on October 16, 1934, appointed Dr. J. L. Miller a member
of the Board for a term of five years from September 16, 1934, to succeed Dr. Sutton.
The records in the Governor's office show that the term of Dr.
J. C. Wright, as a member of the Board, expired September 16,
1935; that the Governor appointed Dr. W. E. White of Tifton a member of the Board to succeed Dr. Wright and communicated the appointment to the Association. The Association at its meeting in 1935 rejected Dr. '"nite, leaving the vacancy unfilled and thereupon the Governor appointed Dr. W. R. Baynes of Atlanta a member of the Georgia State Board of Examiners for a term of five years from September 16, 1935, to succeed Dr. J. C. Wright.
The records in the Governor's office do not indicate and I am not advised whether any action was taken on these appointments at the 1936 meeting of the Veterinary Association.
Section 84-1502 of the Code of 1933 provides that the members of the Georgia State Board of Veterinary Examiners shall be
"Appointed by the Governor and indorsed by the Georgia State Veterinary Association." It is my opinion, that properly construed, this section of the Code contemplates that the Governor shall appoint to the Board persons recommended for appointment by the Georgia State Veterinary Association. While the statute provides that the appointees shall be indorsed by the Georgia State Veterinary Association, I do not think it can properly be construed as conferring upon this Association power to veto or reject an appointment made by the Governor. The Georgia State Veterinary Association is a voluntary association of private persons and has no legal or official status under the laws of Georgia. Its membership is composed of such persons as may be admitted to membership by the Association without limitation or restriction of law. The literal language of the statute would empower the Association to refuse to approve an appointment made by the Governor. Such could not have been the intention of the General Assembly. It is a well recognized rule of construction that statutes are to be construed so as to give effect to the intention of the General Assembly and that the transposition of words and clauses may be resorted to when a sentence or clause is without meaning as its stands. Code of 1933, Section 102-102.
The word 'indorse" is variously defined. As used in connection with an instrument in writing it ordinarily means signing such instrument so as to become liable thereon. It has been defined as meaning to sanction or approve. The word, however, by common usage and acceptation in connection with appointments to positions

211
or offices has come to have the recognized meaning of "recommend." This is the sense in which, in my opinion, it was used by the General Assembly in the Code Section referred to. Any other construction would be inconsistent with Section 40-301 of the Code which empowers the Governor to appoint all officers and fill all vacancies unless otherwise prescribed by the Constitution and laws. It would also be inconsistent with the provisions of the Constitution which empowers the Governor to fill a vacancy of any office by appointment unless other provision is made by law.
There are numerous statutory provisions for appointments to be made by the Governor subject to confirmation by the Senate. When a statute so provides, it is the general rule that the appointment is not complete until the Senate confirms it. Milton v. Milton, 139 Ga. 613-623. But the Senate is a part of the legislative department of the State Government provided for by our Constitution and laws. The members of the General Assembly are public officers of the State, elected by the people. I do not think the rule which requires confirmation by the Senate as a condition precedent to the completeness of an appointment, where confirmation is required, can be extended so as to apply to an unofficial voluntary association having no legal status whatsoever, unless it be that of a private corporation.
I am therefore of the opinion that any language of a statute restricting or limiting the power of appointment of the Governor by referring to such a voluntary association having no legal status should be strictly construed. So construing the Code Section in question, as already stated, I am of the opinion that it contemplates appointments made upon the recommendation of the Georgia Veterinary Association and not that they shall be made by the Governor subject to approval by that Association. Where the Association fails to act or fails to make a recommendation, and a vacancy exists by reason of the expiration of a term, or otherwise, the Governor is authorized to make the appointment without any reference to the Association.
Furthermore, even if it could be said that the appointment is subject to confirmation by the Association, in my opinion the provision of the Reorganization Act of 1931, now embodied as Section 4Q-320 of the Code of 1933, would require the construction that the General Assembly intended that such a vacancy caused by the expiration of a term of service, should be filled by the Governor and that the incumbent should not continue to hold until his successor is approved or indorsed by that Association. This statute in substance provides that where it is incumbent upon the Governor to appoint a public officer subject to confirmation of, or by and with the consent of the Senate, the office shall be deemed vacant at the expiration of the term of such office, and he shall not hold over until his successor shall have been appointed and confirmed. While this statute makes no reference to appointments to the State Board of Veterinary Examiners, it does evidence a legislative intent that the power of the Governor to fill a vacancy shall arise immediately

212
upon the expiration of the term of office of the incumbent, and to destroy the power of a confirming body to uphold the incumbent in office indefinitely by the simple expedient of refusing to act upon the nomination of his successor. This legislative declaration by the General Assembly should be considered in construing the language of the section of the Code relating to appointments to the Board of Veterinary Examiners.
There is nothing in the code section which can be taken to expressly confer upon the Georgia Association the power to reject or veto the Governor's appointment. Neither is there anything in the section which expressly makes the appointment subject to confirmation or approval by the Association, or which can be taken to evidence a legislative intent that the appointment shall not be complete until approved by the Association. To hold that an appointment is not complete until the Association approves it would be to write into the statute language which the General Assembly did not use, and which it could very easily have used if it had had such intention. If it had been the legislative purpose to make these appointments subject to confirmation by the Association, language readily available, and so expressly declaring, could have been employed. The fact that the General Assembly did not employ such language, but instead used the word "indorsed" to which may be ascribed various meanings, is, to my mind, strong evidence that it did not have such intention.
In my opinion you should recognize as members of the Board those appointed by the Governor on October 16, 1935.
NAVAL STOREs-Fees of Supervising Inspector and fees of inspectors appointed by municipalities and ordinaries
August 14, 1935
:Mr. Chas. E. Stewart State Supervising Inspector of Naval Stores 224 Bay Street, East Savannah, Georgia Dear :Mr. Stewart:
I have your letter of the 8th instant requesting advice as to whether inspectors of naval stores appointed by city authorities and ordinaries may be required to make returns for inspection fees received by them.
Under the provisions of Section 5-1615 of the Code of 1933, the supervising inspector is vested with "general supervision and direction of all inspectors of naval stores," and it is made his duty to see that they fairly and honestly perform all the duties imposed upon them in the manner provided by law. He is required to report to the Governor any delinquency or irregularity of any inspector appointed by the city authorities and ordinaries.
Section 5-1610 of the Code of 1933 limits the fee to be charged by inspectors appointed by corporate authorities and ordinaries to

!liS
.06 per barrel for inspecting rosin, etc. and .09 per barrel for inspecting spirits of turpentine, etc. Section 5-I6I4 provides for the compensation of the supervising inspector for his services on a basis
of, "one-fourth cent (J.1 ) for each barrel of rosin and spirits of
turpentine which may be inspected under the laws of this State." Section 5-9944 of the Code makes it a misdemeanor for any inspector to charge or demand more than the scale of fees fixed by Section 5-I6IO.
In view of the foregoing sections and considering the power of general supervision and direction vested in the supervising inspector over all inspectors of naval stores, no matter by whom appointed, I am of the opinion that in order for the supervising inspector to keep a check on the fees and charges being made by the inspectors under his supervision, he is authorized to require such inspectors to make reports to him of the number of barrels of turpentine and rosin inspected and the amount of fees charged for such inspection. This report serves a two-fold purpose, to wit:
I. It furnishes a basis for the computation of the compensation of the supervising inspector, which is not obtainable otherwise.
2. Such reports enable the supervising inspector to determine whether or not legal fees are being charged by the inspectors.
NAVAL STOREs-Supervising Inspector not required to pay fees collected by him into State Treasury
October 15, I986
Hon. Chas. E. Stewart Supervising Inspector of Naval Stores 224 Bay Street, East Savannah, Georgia Dear Mr. Stewart:
I have your request for my opmwn as to whether you are required by the so-called Neill Act of I927 (Ga. Laws I927, p. 8ll; Code of I988, Section 92-860I), to pay into the State Treasury the fees collected by you for the inspection of rosin and spirits of turpentine.
The statute in question is as follows: "It shall be the duty of every department, commission, bureau,
and other branch or agency of the government of this State, and of every official head of every department, commission, bureau, and other branch or agency of the Government of this State created by statute, the support and maintenance of which has been provided by such statute and not by direct appropriations of the General Assembly, to collect and forthwith to pay into the State Treasury all moneys, fees, commissions, penalties, or other charges which they are authorized by law to collect for the support and maintenance of such department, commission, bureau, or other branch or agency of the State Government."

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The office of Supervising Inspector of Naval Stores was created by an Act of 1903 which is codified as Sections 5-1611 to 5-1616 of the Code of Georgia of 1933. Section 5-1611 provides for the appointment by the Governor of a Supervising Inspector of Naval Stores and fixes his term of office at four years from the time of his appointment. Section 5-161~ requires the Supervising Inspector to give bond, and Section 5-1613 provides for the location of his office. The compensation of the Supervising Inspector is fixed and provided for by Section 5-1614 in the following language:
"The Supervising Inspector of Naval Stores shall receive as compensation for his services one-fourth cent for each barrel of rosin or spirits of turpentine which may be inspected under the laws of this State; for a basis of said fee a barrel when applied to spirits of turpentine shall be fifty gallons, and the term spirits of turpentine shall include all spirits of turpentine mentioned in this chapter. A barrel, when applied to rosin shall be ~80 pounds and said fee shall be reckoned on this basis. Said fee shall be paid equally by the buyer and seller of such naval stores. In case of naval stores shipped in packages or receptacles other than barrels, his compensation shall be reckoned on the basis of barrels or fractions thereof in the same manner as is provided for the payment of fees of inspectors under like conditions. He shall have the right to recover from any person or corporation the fees allowed him in appropriate proceedings in any court having jurisdiction thereof." It will be noted that the fees provided by this section, when recieved by the Supervising Inspector of Naval Stores, are not received by him for and on behalf of the State, but as compensation for his services as such Supervising Inspector, and that, by the express language of the statute, a right of action to recover such fees is vested in the Supervising Inspector. The statute providing for a Supervising Inspector of Naval Stores cannot be said to create an agency of the State, but to create a public office of the State to be filled by an officer appointed by the Governor for the performance of the duties prescribed by the statute, who is entitled to the compensation fixed in the Act.
The Neill Act, by its express terms, is limited in its application to those departments, commissions, bureaus and other branches or agencies of the State Government which are authorized by law to collect fees, commissions and penalties for the support and maintenance of such departments, commissions, bureaus and other agencies of the government.
The fees which the law provides the Supervising Inspector of Naval Stores shall receive as compensation for his services are not collected for the support and maintenance of any commission, bureau or other branch or agency of the State Government, but as the compensation which the buyer or seller of naval stores are required to pay him for his services. This construction of the law is required by the express language of the statute which vests in the Supervising Inspector a right of action to recover such fees from any

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person or corporation who may be due them. The fees of the Supervising Inspector of Naval Stores are analogous to those allowed the solicitors general, justices of the peace, and other similar court officials, who are officers of the State, for their services. Such fees are not collected as a part of the revenue of the State under statutes allocating them for a specific purpose, but as the compensation of. the particular official for the particular service required to be paid by the person subjected by law to liability therefor.
From what has been said I am of the opinion that in collecting the fees prescribed for the inspection of naval stores the Supervising Inspector of Naval Stores does so on his own behalf to obtain the compensation fixed for his services and not on behalf of the State itself. I am therefore of the opinion that he is not yet required by the Neill Act to pay these fees over to the State Treasury.
I express no opinion upon the question of whether it is competent for the General Assembly to reduce the compensation of the Supervising Inspector of Naval Stores by requiring any stated percentum of his fees to be paid into the State Treasury as a part of the general fund. Your request did not call for a ruling upon this question. However, I think the compensation of the Supervising Inspector is at all times within the control of the General Assembly and may be increased or decreased at the will of the General Assembly.
PRISON COMMISSION-Computation of sentences
March 29, 1935
Hon. E. L. Rainey, Chairman Prison Commission State Capitol Dear Judge Rainey:
I have your letter of March 20th, in which you state that in a number of criminal cases the defendants have been allowed to remain out of custody on bond after conviction for the purpose of paying their fines in installments. You desire to know whether under the Act of 1931, these sentences should be computed from the time the defendants actually enter upon service thereof, or whether the period during which they are out on bond after sentence, is to be accounted as service on the sentence.
The Act of 1931 (Ga. Laws 1931, p. 165), provides that sentences shall be computed "from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated," and if an appeal is taken, the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court below, provided the defendant is not at liberty under bond but is incarcerated or in the custody of the sheriff of the county where convicted.

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In my opinion, under this statute, the period during which a defendant is out on bond after the sentence is imposed is not to be accounted as service on the sentence, but his sentence should be computed from the date he actually enters upon the service or goes into the custody of the sheriff or other officer for that purpose.
PRISON COMMISSION-Computation of concurrent sentences
June ~5, 1935 Judge G. A. Johns, Vice-Chairman Prison Commission of Georgia State Capitol Dear Judge Johns:
I have your letter of June ~4th with reference to J. B. Buckner. You state he was sentenced under date of March 21st, 1933, to serve two concurrent terms of three to five years. However the sentence provided: "To be computed as provided in the Act approved August ~7. 1931." You state that Buckner served a sentence in the Federal Prison and was then released to the Georgia authorities and actually began service December ~1. 1933, or exactly nine months after the date of his sentence. You request my opinion as to whether or not under the Act of 1931 this prisoner is entitled to credit from the period of March ~1, 1933, to December 21, 1933, the date on which he began service. The Act of 1931 referred to is embodied in Section 27-2505 of the Code of 1933, which provides as follows:
"It shall be the duty of the several judges, in the imposition of sentence for violation of the penal laws, to specify that the term of service under such sentence shall be computed as from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending, except in such cases as may be appealed to the State Court of Appeals or the Supreme Court for reversal of the conviction, in which event the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond but is incarcerated or in custody of the sheriff of the county where convicted." It was the manifest intent of the General Assembly to provide that a convicted prisoner should receive credit for the period between the date of his sentence and the date on which he actually began service, where he remained in custody of the State authorities during such period, and the delay in the beginning of his service could not be attributed to him. The section plainly provides that the sentence is to be computed from its date only in the event the defendant is confined in jail or otherwise incarcerated and if no appeal or motion for a new trial is pending. In other words, the sentence does not begin to run from its date unless the defendant is confined

217
in jail or otherwise incarcerated; and it does not begin to run then if he has a motion for a new trial pending. I think the reference to confinement in jail or other incarceration means confinement or incarceration by the State and not by some other authority.
I am of the opinion that this man is not entitled to credit for the period between the date of his sentence and the date on which he actually began service.
PRISON COMMISSION-Construction of contract
July 26, 1935 Hon. E. L. Rainey, Chairman Prison Commission of Georgia State Capitol Dear Judge Rainey:
I have yours of the 24th instant inclosing contract between the Prison Commission and Tucker & Howell, Architects, and requesting an opinion as to whether this firm has a legal claim against the State of Georgia for services performed under this contract, and if so, what would be the proper basis for adjustment.
Apparently this contract was entered into by the Prison Commission under the authority of Section 11 of the Act of 1931 (Georgia Laws 1931, Extraordinary Session, page 123), which Act authorized the State Highway Board to advance the sum of $200,000, or so much thereof as may be required, to the Prison Commission of Georgia on account of contracts between the Commission and the State Highway Board for the manufacture of highway road signs and automobile license tags, and authorized the Prison Commission to use such sums for the purchase of a prison farm:
''Erecting buildings thereon, and for the purchase of machinery to manufacture said highway road signs, automobile license tags, and such other articles now used by said State Highway Board." Section 12 of this Act provides that all net amounts received by the Prison Commission from the sale of such articles to the Highway Board or to any other department or institution of the State, or from any other funds or sums allocated for the Prison Commission . for the specific purpose of purchasing the farm and erecting the buildings "shall be applied on the purchase price of said Prison farm, buildings, etc." The authority granted the Prison Commission in Section 11 to erect buildings on the prison farm necessarily carries with it the authority to employ architects to draw plans and specifications for such buildings. Acting under the aforesaid authority, it appears from the contract that the Prison Commission agrees to pay the firm of Tucker & Howell the sum of $2,275.00 for their services. In pursuance of this contract, the architects completed about 75% of the work called for in said con tract, according to their contentions. Paragraph four of the contract provides_:

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"Payments to the architect on account of his fee shall be made as follows, subject to the provisions of Article 3:
"Upon completion of the preliminary studies, a sum equal to ~0% of the basic sum.
"Upon completion of specifications and general working drawings (exclusive of details) a sum sufficient to increase payments on the fee to SO%.
"From time to time during the execution of work and in proportion to the amounts of service rendered by the architect, payments shall be made until the aggregate of all payments made on account of the fee under this article, but not including any covered by the provisions of Article 3, shall be a sum equal to the basic sum due on completion of the work." It is further provided in this paragraph that:
"No deductions shall be made from the architect's fee on account of penalty, liquidated damages or failure on the part of the owner to carry out the construction of the building." I am informed that prior to the completion of the plans by the architect, and in view of the fact that negotiations were then under way to obtain a large loan from the P. W. A. for the construction of a new state prison, it was verbally agreed between the Prison Commission and the architects that they should not proceed further with their work under the contract of May 31, 1933. It seems that there was a mutual agreement, either express or implied, that both parties to this contract would abandon the same. It has been held by the Supreme Court of our State:
"If both parties to a contract abandon it, one cannot recover for its breach from the other." Eaves and Collins v. The Cherokee Iron Company, 73 Ga. 459. See also Haigler v. Adams, 5 Ga. App. 637; Mendel v. Leader, 136 Ga.
44~.
In the Haigler case, supra, it was said: "If both parties to a contract change or alter its terms by mutual
consent, the contract is still binding on both; and if both parties to a contract abandon it entirely and make a new contract, this is no breach of the first contract. Abandonment by both parties of a contract precludes either from complaining of a breach." Citing Eaves v. Cherokee Iron Company, supra.
Although this principle seems well established and sound, I am nevertheless of the opinion that the architects under the contract of May 31, 1933, are entitled to compensation for their services, commensurate with the amount of services performed, up until the time when the contract was mutually abandoned by the parties thereto.
The second contract entered into by the firm of Tucker & Howell was with the United States of America, acting by and through Harold L. Ickes, Administrator. This contract covers a different tract of land upon which state prison farm is to be constructed, and the plans call for an expenditure of some $1,500,000, whereas the plans under the contract of May 31, 1933, call for an expenditure of not more than $75,000. Consequently, the second contract entered into

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by these architects for the construction of the new state prison farm building is between different parties, the Prison Commission not being a party to said contract, and the subject matter covered by the second contract is different from that contained in the first contract. Therefore, it cannot be said that the first contract with these architects has been merged in the second or that the second contract has been substituted for the first.
This brings us to the question as to whether the firm of Tucker & Howell have a legal claim against the State of Georgia enforceable by suit. A suit by this firm for the collection of these fees under the contract would be in its nature a suit against the State, and if the principle is well established that the State cannot be sued without its consent, and such consent not having been granted, I am of the opinion that this firm has no recourse in the courts at this time for the collection of their claim.
I am further advised that there are no funds available for the payment of the claim of $1,137.50 presented by the architects, as no appropriation has been made by the legislature for the payment of the same. Also due to the developments and changes in the plans with respect to this project which have occurred since 1931 and the failure of the Prison Commission to carry out the plan of erecting these buildings as a State project, the State Highway Board has made no advance of funds to the Prison Commission as authorized by the Act of 1931, and consequently the Prison Commission has no funds derived from this source for the payment of any expenses which have been incurred with reference to the project as originally proposed and which was not carried out as contemplated. Therefore, I see no way that this claim, even though a legal liability, may be paid by the Prison Commission at this time.
PRISON COMMISSION-Not liable for fees of clerks for recording certified copies of orders granting paroles
July ~7. 1935 Hon. E. L. Rainey, Chairman Prison Commission of Georgia State Capitol Dear Judge Rainey:
I have yours of the 24th instant requesting an opinion as to whether the Prison Commission is liable for fees charged by clerks of the superior courts of this Shte for performing the duties required of them under Section 77-504 of the Code of Georgia of 1933 (Section 1225 of the Penal Code), which provides:
"It shall be the duty of said Commission to cause a certified copy of its order granting said parole and the terms and conditions of the same to be sent to the clerk of the court of the county wherein said prisoner was convicted, which shall be duly entered of record in said clerk's office in a book to be kept for that purpose."

Under the scale of fees enumerated in Section 24-!l727 of the Code of Georgia of 1933 for the clerks of the superior courts, I can find no
provision allowing fees to such clerks for the performance of the service required of them under Section 77-504. It is often the case that the law prescribes certain duties for public officials under a fee system without prescribing any fee for the performance of such service, and it is well established by the decisions of our courts that
in order for a public officer to be entitled to a fee for the performance of services, the law must clearly prescribe such fee. I am therefore of the opinion that the Prison Commission is not liable for the payment of fees charged by clerks of the superior courts for recording certified copies of the orders of the Prison Commission granting paroles.

PRISON COMMISSION-Without authority to purchase addi-

tional lands for penal use

November 5, 1935

Hon. E. L. Rainey, Chairman

Prison Commission of Georgia

State Capitol

Dear Mr. Rainey:

.

This will acknowledge your letter of November 5 in which you in-

quire as to the authority of the Prison Commission to purchase addi-

tional land to that now owned and used in connection with its penal

institutions and you refer particularly to Sections 1213 and 1214 of

Parks Annotated Code, Volume 6.

An examination of these sections shows that they were codified in

the Parks Code from the Act of 1897. Georgia Laws 1897, pp. 70,

et seq. The Code of 1933, as revised and adopted, does not contain

any provision authorizing the Prison Commission to purchase addi-

tional land. See Title 77, Code of 1933, and particularly Chapters

77-3-4-5.

'

It is evident that the codifiers regarded these provisions relating

to the purchase of prison sites as temporary. An examination of the

Act of 1897 shows that the Prison Commission therein constituted

were required to make a full report of their actings and doings there-

under to the legislature at its 1898 session. I am constrained to the

view that the codifiers have adopted the correct construction in re-

gard to these matters and give it therefore as my opinion that your

commission has not the authority to purchase the land in question.

PRISON COMMISSION-Authority of Governor to examine prisoners for insanity is limited only to capital crimes
May 4, 1936 Hon. Alfred Herrington, Jr. Swainsboro, Georgia My dear Judge Herrington:
Mr. Mobley, of the Executive Department, has referred to this office your letter to him of April 25, 1936, with reference to Bryant Meeks who was convicted of murder at the April Term of Emanuel Superior Court and sentenced to life imprisonment.

You have requested of the Governor an examination of this man
under Section 27-2602 of the Code of Georgia of 1933. There was also forwarded to the Governor a letter from the Sheriff
of Emanuel County stating his opinion that an examination into the sanity of Meeks would be proper.
Under date of November 2, 1933, I furnished to the Prison Commission of Georgia an opinion holding that Section 1074 of the Code of 1910, now Section 27-2602 of the Code of 1933, has application only to insane prisoners upon whom the death sentence has been imposed.
Section 27-2602 of the Code of 1933 is taken from an Act of 1903. This section should be construed along with Section 27-2603 and Section 27-2604. These sections are taken from an Act approved March 2nd, 1874. This Act provided as follows:
"That when any person shall, after conviction of a capital crime,
become insane, and shall be so declared in accordance with the provisions of section four thousand six hundred and sixty-six (4666) of the Code of Georgia, revised by Irwin, Lester and Hill, it shall be the duty of the Judge to certify the fact, and the said convict shall be received into the Lunatic Asylum, there to be safely and securely kept, and treated as other adjudged insane persons." Section 2 of the Act of 1874 makes all the provisions of law relating to insane persons under sentences to imprisonment in the penitentiary applicable to those convicted of a capital crime. Section 3 provides that if the convict shall recover, the fact shall be at once certified by the superintendent to the judge of the court in which the conviction occurred, and that it shall be the duty of the judge to cause the convict to be removed to the jail of the county in which the conviction occurred, or to some other safe place, and shall pass sentence either in term time or vacation, which shall be executed by the Sheriff, as in other cases.
Standing alone, the Act of 1874 is somewhat ambiguous, in that it refers to persons convicted of "capital crime." It has been held by the Supreme Court of Georgia, as you know, that a crime is nevertheless a capital one, although the person convicted may have received less than a capital sentence. In other words, it has been held by the Supreme Court that murder does not cease to be a capital crime because a person is sentenced to life imprisonment. However, when we consider the Act of 1874 in the light of Section 4666 of the Code of 1873, the meaning becomes entirely plain. Section 4666 of the Code of 1873 provides as follows:
"If, after any convict shall have been sentenced to the punishment of death, he shall become insane, the sheriff of the county, with concurrence and assistance of the Ordinary thereof, shall summon a jury of twelve men to inquire into such sanity; and if it be found, by the inquisition of such jury, that such convict is insane, the sheriff shall suspend the execution of the sentence directing the death of such convict, and make report of the said inquisition and suspension of execution to the Presiding Judge of the district, who shall cause the same to be entered on

the minutes of the Superior Court of the county where the conviction was had. And at any time thereafter, when it shall appear to the said Presiding Judge, either by inquisition or otherwise, that the said convict is of sound mind, the said Judge shall issue a new warrant, directing the sheriff to do execution of the said sentence on said convict, at such time and place as the said judge may appoint and direct in the said warrant, which the sheriff shall be bound to do accordingly. And the said Judge shall cause the said new warrant, and other proceedings in the case, to be entered on the minutes of the said Superior Court." It will thus be seen that the Act of 1874 had application only to convicts upon whom the death sentence had been imposed. This construction is strengthened by Section 3 of the Act, now Section 27-2604 of the Code of 1933, which provides for a new sentence and for the execution thereof by the sheriff. The sheriff does not execute sentences of imprisonment. He does not now execute sentences of . death, but at the time of the passage of the Act of 1874 and until the enactment of the electrocution law, he did execute sentences of death. An examination of the Code of 1895 will disclose that the Act of 1874 is codified as Sections 1048 and 1049 of the Penal Code of 1895. Section 1048 of the Penal Code of 1895, which is now Section 27-2603 of the Code of 1933, provided for the transfer of a convict to the lunatic asylum who had become insane after conviction of a capital crime, and was so declared "in accordance with the provisions of the preceding section." The preceding section referred to in Section 1048 of the Code of 1895 is Section 1047 of the Code of 1895 which is identical with Section 4666 of the Code of 1873. In 1903 the General Assembly repealed Section 1047 of the Penal Code of 1895, which was Section 4666 of the Code of 1873, by enacting the sections which are now carried as Sections 27-2601 and 27-2602 of the Code of 1933. These were Sections 1073 and 1074 of the Penal Code of 1910. The effect of the Act of 1903 was simply to change the method of determining the insanity of one who had been convicted of a capital offense, and sentenced to death. I do not think it can be construed to change the class of convicts to which the provisions of the Act of 1894 had application. It will be noted that Section 77-401 of the Code of 1933 makes provision for the care of convicts sentenced to imprisonment in the penitentiary. This section provides as follows:
"If a convict sentenced to the penitentiary shall become insane, he shall be removed to, and kept at the Prison Farm during the term for which he may have been sentenced or until such insanity is cured and the Prison Commission shall make such provision for the care, maintenance and medical treatment of such insane convicts as is proper in such cases."
This section is taken from an Act approved August 12, 1904. It will be noted that before the passage of this Act of 1904, provision was made by Sections 1183, 1184, 1185 and 1186 of the Penal Code of 1895 for the transfer of insane convicts from the penitentiary to

223
the asylum. Sections 1183, 1184 and 1185 were taken from Cobb's Digest. Section 1186 was taken from an Act approved March 6, 1875. This Act was enacted as a resolution under the following caption:
"Whereas, doubt is entertained whether it is the duty of His Excellency, the Governor, to direct the removal of penitentiary convicts, who are clearly insane, to the lunatic asylum of this State, Be it therefore resolved, etc."
Before the passage of the Resolution of 1875 there seems to have been doubt as to the authority of any particular officer to direct the removal of a convict from the penitentiary to the insane asylum, and the purpose of that resolution was to vest that authority in the Governor. However, it will be noted that the Act of 1904 expressly provides that all convicts then in the State Sanitarium under the provisions of Section 1183 or Section 1186 of the Penal Code of 1895, should be returned to the Prison Commission as soon as arrangements have been made to care for the convicts.
It thus appears that Chapter 27-26 of the Code of 1933, to which you refer, and Section 77-401, make provisions for the disposition of all felony convicts who may become insane. If the convict is sentenced to death and becomes insane, then by the provisions of Chapter 27-26 upon satisfactory evidence being offered to the Governor, the Governor may, in his discretion, have the convict examined by expert physicians and if it is found that the person is insane he may be committed to the Milledgeville State Hospital until his sanity is restored. Upon restoration of sanity the sentence of death shall be executed.
However, if the convict is sentenced to the penitentiary and becomes insane, it is the duty of the Prison Commission to provide for his care and treatment at the State Farm without any further process or inquiry into his sanity. During this period he remains an inmate of the penitentiary, but is entitled to proper medical care and treatment at the hands of the Prison Commission.
From what has been said, I am of the opinion that Section 27-2602 has application only to persons who have been convicted of capital offenses and sentenced to death. In those cases the Governor is authorized to have an examination made into the sanity of such person upon satisfactory evidence of insanity being offered to him. In a case where a convict is sentenced to the penitentiary, the Governor is not authorized to inquire into his sanity, but the duty of proper treatment rests upon the Prison Commission.

224
PRISON COMMISSION-Construction of indeterminate sentence law
March 23, 1936
Hon. V. L. Stanley, Commissioner The Prison Commission of Georgia State Capitol Dear Judge Stanley:
I am writing in reply to your letter of March nineteenth with reference to the allowance of time for good behavior where a prisoner is sentenced under the Indeterminate Sentence Law to serve consecutive sentences.
In reply, I beg to advise you that in my opinion Section 1221 of the Code of 1910 (Code of 1933, Section 77-341) has no application to a prisoner sentenced to serve a minimum of not less than so many years and a maximum of not more than so many years under the Indeterminate Sentence Law of 1919.
Under that statute it is expressly provided that a minimum term of service shall be fixed by the jury and that the Prison Commission shall fix rules by which the convict, after serving the minimum sentence may be allowed to complete his term without the confines of the penitentiary upon complying with said rules.
This statute would seem, by necessary implication, to exclude the operation of the statute providing an allowance for good conduct in cases where a prisoner is sentenced to serve a minimum number of years. In those cases, in my opinion, the Prison Commission has no authority to discharge him until he has completed the minimum term, irrespective of what his conduct may be during that interval.
The express language of the Indeterminate Sentence Law is wholly inconsistent with any allowance of time off for good behavior.
PRISON COMMISSION-Convict having eleven one-year sentences running consecutively entitled to time off for good behavior just as if he had one sentence for eleven years
June 13, 1936 Hon. V. L. Stanley State Prison Commission State Capitol Dear Judge Stanley:
This will acknowledge your request for an opinion as to my construction of Section 77-341 of the Code of 1933, formerly Penal Code Section 1221, as applied to a convict who has eleven felony sentences of one year each, said sentences running consecutively.
I shall not quote the provisions of Section 77-341, as you are familiar with the same. It is significant that the statute provides that for good conduct a felony prisoner shall have deducted "from the time for which he may have been sentenced, two months for the second year, three months for each subsequent year until the

tenth year, inclusive, and four months for each remaining year of the time of imprisonment."
This section is codified from the statute approved October 13, 1887 (Georgia Laws 1887, p. 38). A similar law was carried in the Code of 1861 as paragraph 4580, Section LXV; in the Code of 1863 as Section LXVI; in the Code of 1867 as Section 4601, as follows:
"The superintendent or principal keeper of the penitentiary shall keep a book in which shall be entered the names of the convicts sentenced for a term of two or more years; opposite to each name shall be placed by the bookkeeper a mark of approbation or disapprobation, according to the conduct of each; and should it appear from this book that the conduct of any one is unexceptionable, then such convict's time of confinement (except confinement for life) shall be shortened two days in each and every month for the time they shall have so served."
By an Act approved March 3, 1874 this Code Section was amended by striking out "two days, where it appears in said Section, and inserting therefor four days." After this amendment, said section appeared as Section 4698 in the Code of 1882. The Act of 1887 (Georgia Laws 1887, p. 38), repeals Section 4698 of the Code of 188~ and substitutes in lieu thereof the language as it now appears in Section 77-341 of the Code o"1933.
The above is a brief history of the section and shows that the computation for good conduct deductions for felony prisoners was formerly made upon practically the same basis as is now employed with respect to misdemeanor prisoners under Section 77-210.
It is therefore helpful in construing the intent of the legislature in enacting these statutes to consider the caption of the Act of 1885 (Georgia Laws 1885, p. 89) which is now codified as Section 77-~10. The caption of this Act reads:
"An Act to encourage good behavior and diligence of persons convicted of misdemeanor, who are serving their time on chain gangs in this State."
Although the Act amending Section 4698 of the Code of 188~, applicable to felony prisoners, contains no such caption as that quoted above, nevertheless both of these statutes were enacted with the same intent, "to encourage good behavior and diligence of persons" serving time on the chain gangs, or in the penitentiaries of this State.
It therefore follows that to place a construction upon Section 77-341 that a convict upon whom eleven felony sentences of one year each, running consecutively, have been imposed is entitled to no deduction for good conduct would defeat the plain purpose and intent of the legislature. If the eleven sentences were misdemeanor sentences, the convict would be entitled to four days per month off of each sentence. If it is held that no deduction for good conduct is to. be made in this case, since the sentences are felony sentences, there would be no incentive for good behavior, and the purpose of the statute would be lost.

. Section 77-341 clearly provides that the deductions for good behavior shall be made "from the time for which" the prisoner may have been sentenced. To my mind, this means the composite time of all sentences, where they run consecutively, and the fact that no one sentence in the case under consideration is for a period of more than a year does not affect the issue. That part of Section 4698 of the Code of 1882 which provides; "The superintendent or principal keeper of the penitentiary shall keep a book in which shall be entered the names of the convicts sentenced for a term of two or more years" may have been susceptible to the construction that no felony convict with a sentence of less than two years would be entitled to any deductions for good conduct. However, this language no longer occurs in the statute as it was repealed by the Act of 1887.
I am, therefore, of the opinion that the convict referred to in your letter is entitled to deduction for good conduct on the same basis as though he had one sentence of eleven years.
PRINTING-Contract for printing exceeding $500.00 must be advertised
January 8, 1935 Hon. Herman DeLaPerriere Supervisor of Purchases State Capitol Dear Mr. DeLaPerriere:
I have your letter of even date with reference to the proposed contract for publication of the Market Bulletin.
In my opinion it was the legislative purpose and intent in the passage of the Act of 1919 (Code of 19~3, Title 90, Section 9Q-101) that all State printing aggregating $500.00 should be contracted for on competitive bids received after advertising as provided in that Act.
It is my opinion therefore that it is necessary that this contract be advertised.
PRINTING-Contracts for State Printing exceeding $500.00 must be let through office of State Supervisor of Purchases
October 23, 1935 Hon. H. P. DeLaPerriere Purchasing Department State Capitol Dear 1\fr. DeLaPerriere:
Responding to your verbal request as to what printing should go through your office, beg to advise that in my opinion all contracts for printing involving as much as $500.00, where the State's money is used, should be let by you and through your office. The State does not have and cannot have any interest in the publication of an annual by the student body of one of the State Colleges, which is paid for with funds furnished by the students. The State's interest arises only where State funds are involved.

PENSION8-Widow of Confederate veteran who remarries entitled to pension accrued while she was widow of such veteran before her remarriage
February 21, 1935 Hon. A. L. Henson, Director Veterans Service Office State Capitol Dear Mr. Henson:
Hon. A. W. Daughtry, a member of the General Assembly, requests my opinion under the following statement of facts:
Mrs. Alice L. Bullard, widow of Dr. J. H. Bullard, who was him~
self a pensioner, after the death of her husband was entitled to and did receive a pension as provided by law. She married W. H. Hearn on December 8, 1931. At that time she was due a balance of $127.00 on her pension for 1930.
We are of the opinion that as the pension amounting to $127.00
accrued while she was the widow of Dr. J. H. Bullard and before her
marriage to W. H. Hearn she now should be paid the $127.00 accrued on her pension during the year 1930 while she was the widow
of Dr. J. H. Bullard. She would not be entitled to a pension, of
course, after her marriage to w. H. Hearn.
PENSIONS-Payment of funeral expenses where the pensioner has an estate February 25, 1935
Hon. A. L. Henson, Director Veterans Service Office State Capitol Dear Mr. Henson:
Re: 1\frs. Louisa Overton Under the statements made in your letter, the pensioner, at the time of her death, had an estate created for her special benefit, and for that reason, if for no other, I am of the opinion that the State would not be authorized to pay the past accrued pension for the purpose of defraying funeral expenses. In addition, under the law, all such checks must be sent to the Ordinary and paid out on receipted bills of the funeral director, properly itemized and verified.
PENSIONS-Pensioner not entitled to receive pension from State while confined in State Hospital at Milledgeville
May 16, 1935 Hon. A. L. Henson, Director Veterans Service Office State Capitol Dear Mr. Henson:
Replying to your letter of May 8th in which you request information as to payment of pensions to a pensioner during the period of confinement at the Milledgeville State Hospital, it is my opinion

that such a pensioner is not entitled to receive any payment while confined in the State Hospital.
Sections 78-~19 and 78-~~0 of the Code of 1933, contains the provisions referred to in your letter. You will observe from a reading of Section 78-~~0 that it is provided that a pensioner may be "replaced on the pension roll when he had been discharged from the State Hospital." It seems to be clear from the provisions of these
two sections that when the Director of the Veterans Service Office receives notice that a pensioner has been adjudged a lunatic and confined in the State Hospital, he shall strike the name of the pensioner from the pension roll. This would forbid any payment to such pensioner until he had been discharged, at which time he may
be replaced.

PENSIONS-Payment of funeral expenses where pensioner out of

State at time of death

Hon. A. L. Henson, Director

May 16, 1935

Veterans Service Office State Capitol Dear Mr. Henson:
Replying to your letter of May 8th, 1935, in which you request

confirmation of an oral opinion as to payment of expenses of last illness of a pensioner, who left no widow and no estate of any kind

of value and died outside of Georgia where he had resided for a period of more than twelve months immediately preceding death, the oral opinion is hereby confirmed. The fact that the pensioner was out-

side of the State of Georgia for more than twelve months immediately preceding death did not necessarily mean that his absence from the State during this period was voluntary.
In view of the time elapsing, however, it is my opinion that the

director should be thoroughly satisfied that absence from the State was not voluntary but due to illness and actual physical inability to

return to the State of Georgia. The character of such evidence

should be of such responsibility as to remove any doubt from the
mind of the Director so as to prevent the bar laid by statute. (Section 78-~~1 of the Code of 1933).

PENSIONS-Pensioner not entitled to pension accrued before admission to State Hospital at Milledgeville
August 16, 1935 Hon. A. L. Henson, Director Veterans Service Office State Capitol Dear Mr. Henson:
I have your letter of August fifteenth with reference to Mrs. Annie Barksdale, a Confederate pensioner from Richmond County who has been adjudged insane and who has been confined at the State Sanatorium at Milledgeville, Georgia, since May 16, 1935.

229

You state that Mrs. Barksdale has no dependents; that at the time

of her reception at the Sanatorium she had to her credit pension pay.:.

ments for the months of April and May, 1935, in the amount of

$30.00 each, which accrued to her credit before she was received at

the State Sanatorium. You desire to know whether it is in order

for you to pay these accrued payments to her guardian.



In my opinion the matter is controlled by Sections 78-219 and

78-220 of the Code of 1933 to which you refer, which provide as

follows:

"78-219. It shall not be lawful for any pensioner of this State,

after being adjudged a lunatic and confined in the State Hospital,

to draw a pension from the pension fund of this State: Provided,

that if said pensioner has a wife or minor children dependent, on

him, the same shall be paid to them."

"78-220. The ordinaries shall, as soon as any pensioner has

been adjudged a lunatic, notify the Director of the Veterans'

Service Office, stating the name, whether the pensioner is male or

female, and the fund from which the pensioner has been drawing:

Provided, that nothing herein contained shall prevent any pen-

sioner from being replaced on the pension roll when he has been

discharged from the State Hospital."

The manifest intention of the legislature in enacting this statute

was that persons confined at the State Sanatorium and receiving

support and maintenance at the hands of the State should not at the

same time receive a gratuity in the form of a pension from the State.

The clear meaning of the section is that the name of any such pen-

sioner shall be stricken from the pension rolls upon the reception of

the pensioner at the State Hospital and shall not be replaced on the

pension roll until discharged from the State Hospital.

In my opinion the prohibition of Section 78-219 applies not only

to pension which might accrue after the date of confinement in the

State Hospital, but to pensions which had therefore accrued but

which had not been actually paid. I must therefore hold that you

cannot now legally pay this accrued pension to the guardian of Mrs.

Barksdale.

PENSIONS-Pension Commissioner without authority to make approval of pension retroactive
March 23, 1936 Hon. A. L. Henson, Director Veterans Service Office State Capitol Dear Mr. Henson:
In the absence of Judge Yeomans from the office, I am answering your letter of the 18th.
You request an opinion as to whether you are authorized to make your approval of the application of Mrs. JaneS. Hyder, which was filed in March, 1936, retroactive to January 1st, 1936, and now

230
make requisition for funds with which to pay this pensioner for January and February.
I am of the opinion that the Director of the Veterans Service Office has no authority to allow an application for a pension and make the same retroactive. Although it appears from your letter that Mrs. Hyder would have been entitled to a pension had she filed her application in January, I936, for the months of January and February, nevertheless, I am of the opinion that it is necessary that an approved application must precede the accrual of any pension and the failure of Mrs. Hyder to make application prior to March, I936, extinguishes her right to pension payments for January and February.
PENSIONS-Disposition of pension accrued at time of pensioner's death
May I6, I936 Hon. A. L. Henson, Director Veterans Service Office State Capitol
Dear Mr. Henson: I have your letter of May IS with reference to balance of pension
due J. D. Fuller of Cobb County, a Confederate veteran who died January I7, I936. You state that at the time of his death there was a balance due him of $460.00; that he left a widow, who was married to him after January I, I881. The widow is now deceased and is represented by an administrator. You desire to know whether you may now pay the accrued pension which was due Mr. Fuller at the time of his death to the administrator of his widow.
In reply I beg to advise that in my opinion such a payment would not be authorized by law.
The statute relating to any accrued pension to a Confederate veteran at the time of his death provides that it shall be the duty of the department to pay the same over to the ordinary of the county to be by the ordinary paid to the widow of the veteran and if no widow to be applied to the payment of the funeral expenses of the veteran and to such expenses of last illness as may be shown by a sworn statement thereof to be attached to the voucher when presented for payment.
Pensions do not represent debts owing by the State to pensioners. They simply represent gratuities allowed by law, which are personal to the object of the State's bounty. An accrued pension does not become a part of the estate of a deceased veteran. Neither does any accrued pension which might go to his widow in the event of his death become a debt due to the widow by the State, or a part of the widow's estate. The only method by which you could make this disbursement, if it were permitted, would be to send the money to the ordinary for disbursement by him in accordance with this Code

!l:n
Section. If you did this, it would be the duty of the ordinary to return the fund to the State Treasurer, because there is now no widow.
For the reasons just stated I am of the opinion that the disbursement of this sum from the State Treasury would be illegal.
GEORGIA PUBLIC SERVICE COMMISSION-Without authority to require the establishment of farm crossings by railroads
March 21, 1985
Hon. Jud P. Wilhoit, Chairman Public Service Commission State Capitol Dear Mr. Wilhoit:
This opinion is written pursuant to your verbal request. You asked whether or not the Georgia Public Service Commission had the power and authority to issue an order requiring the establishment of farm-crossings. The powers and authority of the Georgia Public Service Commission are limited to its powers granted by statute. These statutes are found in Title 93 of the Code of 1933. Chapter 93-3 deals with the jurisdiction, powers and duties of the Georgia Public Service Commission. The authority of the Commission over contracts and agreements between railroad companies doing business in this State, as to frei~ht and passen~er rates, is conferred by Section 93-303. The Georgia Commission has general supervision over common carriers within this State and is authorized to require such common carriers to establish and maintain such public service and facilities as may be reasonable and just, either by general rulings or by special orders. Section 93-307. The Commission has power and authority to prescribe rules with reference to spurtracks and sidetracks and with reference to their use, construction, removal or change; to order and compel the making and operation of physical connections between lines of railroad crossing or intersecting each other; to prescribe rules and penalties governing and requiring the prompt receipt, carriage and delivery of freight, the furnishing of cars to shippers; to order the erection of depots and stations, where the Commission deems it necessary; and to regulate schedules and compel connections at junction points of competing lines. Section 93-308, Code of 1933. The Commission has the power and authority to make rules and regulations to be observed by all railroad companies as to charges for handling and delivering of freight; to make such rules and regulations as may be necessary to prevent unjust discrimination in the transportation of freight; to require the location of such depots and the establishment of such freight and passenger buildings as the safety of freight and the public comfort and convenience may require. Section 93-309.

The Commission has the right to inspect any railroad or any part of any railroad in this State for the purpose of determining whether or not the same is kept in such safe condition as will render travel over the same safe. Section 93-316.
From the foregoing, it will be seen that the General Assembly has not conferred upon the Public Service Commission to require the railroads to establish farm-crossings and to permit the land owner to open up and establish farm-crossings for the benefit of the land owner. Therefore, I am of the opinion that the question should be answered in the negative.
The provisions of Section 94-603 would seem to be applicable under the state of facts mentioned by you. The precedure therein set out would apparently be proper to be followed by the landlord in the case mentioned.
GEORGIA PUBLIC SERVICE COMMISSION-Has authority to fix terminal and wharfage charges at ports
August 20, 1935 Hon. J. J. E. Anderson, Commissioner Georgia Public Service Commission State Capitol My dear l\fr. Anderson
Re: Terminal and Wharfage Charges at ports of Savannah and Brunswick. Docket 0 902-A.
This has reference to your verbal request for an opinion as to whether Georgia Public Service Commission has jurisdiction of respondents and subject-matter involved in the above stated investigation.
It does not appear from the transcript of evidence just who owns the terminal facilities at the ports in question or what company or companies operate and manage the same. It is supposed that the wharves and docks are operated by respondents under some sort of contract or arrangement among themselves. From the transcript of the evidence it appears that respondents, with the approval of the Interstate Commerce Commission, have prescribed and published a rate of I wharfage and 2 handling charge for traffic passing through the wharves as component parts of interstate or foreign commerce. The rate so published and applicable governs all wharfage, handling, storage and other accessorial charges on all rail haul traffic.
From the transcript of evidence it further appears that in addition to the rate of 3 (wharfage and handling charges) above referred to, respondents have made and are making a charge of 5 per 100 lbs. on such traffic as passes over the Savannah and Brunswick docks from motor trucks to certain classes of vessels and as well the traffic which moves from these vessels over the wharves and docks to motor trucks. Respondents designate this charge as a "terminal use" charge. It is sometimes referred to as a "rental" charge. They concede that no tariff therefor has been filed with or approved by

either the Interstate Commerce Commission or the State Commission and undertake to justify the charge on the ground that it is a local port service handled by respondents respectively and is of such a nature and character as to be divorced from and independent of their business and functions as common carriers. Upon this ground, they contend that, as to this "terminal use" charge or "rental", they ar.e ~ot subject to regulation by either the Federal or State CommissiOn.
Public wharves usually are held to belong to a class of property in which the public is concerned and as to which the government has always reserved the right as between its citizens tp regulate and
control. 68 C. J. 211; 1~ C. J. 41; Transportation Company v.
Parkersburg, 107 U. S. 69~.
Prior to the Act of the General Assembly of Georgia, approved August 23, 1907, Georgia Public Service Commission, then Railroad Commission, under the-provisions of law, had power and authority to prescribe rules of regulation and fix rates only for railroads, telegraph and express companies. By the Act of 1907 however, the powers and authority then vested in the Commission with respect to railroads and common carriers were enlarged and extended to include, among other utilities, street railroads and "Docks and wharves and corporations, companies or persons owning, leasing, or operating the same; to terminal or terminal stations and corporations, companies or persons owning, leasing or operating the same; to cotton compress corporations or associations, and persons or companies owning, leasing or operating the same." Code of 1933, Section 93-304.
By the Act of 1907 as amended by the Act of 1922, it is provided that the Public Service Commission:
"Shall have the general supervision of all common carriers, railroads, express corporations or companies, street railroads, railroad corporations or companies, dock or wharfage corporations or companies, terminal or terminal station corporations or companies, etc."
And further provides that the Commission upon its own initiative: "May require all common carriers and other public service
companies under its supervision to establish and maintain such public service and facilities as may be reasonable and just either by general rules or by special orders in particular cases." Code of 1933, Section 93-307.
In 1907, the Commission then in existence had under the Acts of 1878 and 1879 and 1890 and 1891 power and authority to prescribe a schedule of maximum rates and charges for storage of freight to be made and charged by railroad companies doing business in this State and by the Act of 1907, this authority was continued and extended to the additional utilities above referred to including docks, wharves, compress companies, etc.
From these provisions of our statute, it is clear that docks and wharves are brought within the jurisdiction of the Georgia Public

Service Commission and when operated as public docks or wharves
are subject to regulation by it in proper cases. As to that part of the traffic handled by respondents over the
docks and wharves in question as rail hauls and forming component parts of interstate or foreign commerce, it would appear that regulatory power is vested in the Interstate Commerce Commission. Respondents so concede. It is possible also that Congress by a
special Act or through the medium of the Interstate Commerce Commission might assume jurisdiction over that part of respondents' business, charged for as a "terminal use" charge. In the absence of such regulation, however, by Congress or the Interstate Commerce Commission, the State of Georgia through its regulatory commission has jurisdiction.
"Notwithstanding the creation of the Interstate Commerce Commission and the delegation to it by Congress of the control of certain matters, a state may in the absence of express action by Congress or such commission regulate for the benefit of its citizens local matters indirectly affecting interstate commerce." 12 C. J. 17; M.P. Ry. Co. v. Larabee Flour Mills Co., 211 U.S. 612; Transportation Co. v. Parkersburg, 107 U. S. 692; State of Florida v. Atlantic Coast Line R. Co., 81 Southern 498, P: U. R. l919~D 692.
We do not find that Congress by any Act has undertaken to deal with the particular subject-matter under investigation and the record indicates that the Interstate Commerce Commission rejected tariffs which respondents undertook to file in connection with the service rendered.
What has been said above, however, is subject to the condition that respondents are conducting a public wharfage or dock business with reference to that part or portion of the business divorced from and independent of their business as common carriers; that is to say, if their property with respect to that feature of their business has never been dedicated to a public use but is only private property and is so conducted, then the Commission would be without authority to deal with the matter at hand. L. & N. R. R. Co. v. West Coast Co., 198 U. S. 484.
It is the opinion of this department, therefore, that the Georgia Public Service Commission has jurisdiction, power and authority to enter an order prescribing such rates, rules and regulations with reference to the subject-matter as it may find and deem to be reasonable and just if it finds as a matter of fact that respondents with reference to the matters complained of are operating a public wharfage business. That would be a question of fact to be determined by the Commission from the record.

285

GEORGIA PUBLIC SERVICE COMMISSION-Without authority to force a union bus station to permit another operator to
come into the station to pick up and discharge passengers, handle baggage, etc.

August 23, 1985

Hon. J. J. E. Anderson, Commissioner

Georgia Public Service Commission

State Capitol



Dear Mr. Anderson:

In your letter of August 22nd addressed to the Law Department,

you request an opinion as to the authority of the Commission to

force the Union Bus Station to allow another operator of a bus

to come into their station for the purpose of receiving and dis-

charging passengers and of handling baggage and engaging in other

things incident to their bus operation.

We assume that in the Certificate of Convenience and Necessity

issued by the Georgia Public Service Commission to the Union Bus

operators no such right was reserved on the part of the Commission.

The Georgia Public Service Commission is a creature of statutes

of the General Assembly of Georgia and its powers are defined by

statute. In other words, it has and can exercise such powers only as

are e}..'}Jressly or impliedly conferred upon it by statute. The im-

plied powers which the Commission may exercise are such only as

are reasonably necessary to execute the powers expressly given.

Georgia Railroad Commission v. Macon Railway and Light Com-

pany, 151 Ga. 257, 258; Georgia Public Service Commission v. City

of Albany, et. al., 180 Ga. 355.

Prior to the Acts of 1929 and 1931, the Commission had no power

or authority to regulate in any particular motor carriers operating

upon the public highways of this State. Estes v. Perry, 167 Ga. 902.

In the Acts of 1931 appears no indication of an intention on the

part of the legislature to extend the provisions of the Acts of 1878-79,

1890-91, 1907 and 1922, codified as Title 93, Code of Georgia of

1933, to motor common carriers and therefore the Acts of 1931 only

can be looked to to ascertain the authority and power of the Com-

mission with respect to the business of motor common carriers and

their regulation.

.

Upon an examination of the applicable statute, we find no pro-

vision, which, when taken with the whole and reasonably construed,

would, in our opinion, justify an order on the part of the Commis-

sion requiring one motor common carrier to extend the use of its

facilities to another company engaged in a similar business.

Our conclusion, therefore, is that the Georgia Public Service Com-

mission is without authority to require the Union Bus Station to

allow another operator of a bus to come into the station of the Union

Bus Company for the purpose of receiving and discharging passen-

gers and handling baggage and engaging in other Acts incident to

their operation.

GEORGIA PUBLIC SERVICE COMMISSION-Without authority to disclose information contained in accident reports
March 14, 1936
Hon. J.P. Wilhoit, Chairman Georgia Public Service Commission State Capitol
Dear :Mr. Wilhoit: This has reference to your inquiry under date of March 11th with
reference to the propriety or legality of disclosure by the Commission of information contained in accident reports submitted to the Commission by railroad companies.
The Federal Accidents Act, May 6, 1910, 45 U.S. C. A., Sections 88 to 43 inclusive, requires that every common carrier engaged in interstate or foreign commerce by railroad shall make to the Interstate Commerce Commission at its office in Washington, D. C., a monthly report under oath of all collisions, derailments, or other ac- cidents resulting in injury to persons, equipment or roadbed arising from the operation of such railroad.
It is further provided by the Act that the Interstate Commerce Commission may conduct an investigation or inquiry as to the cause of any accident or collision occurring on any railroad line operating in interstate commerce.
Section 41 of the Act of May 6, 1910, is as follows: "Neither said report nor any report of said investigation nor
any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said report or investigation."
The report and investigation referred to in the citation aforesaid are the reports required by Section 38 and Section 40 of Title 45, U. S. C. A., which are codified from the Act of May 6, 1910.
The statute of the laws of Georgia make no requirement so far as I have been able to find that railroads shall make reports to the Commission of accidents or collisions occuring on their lines within the State of Georgia.
It is provided, however, by the law that the Commission may make and enforce reasonable rules and regulations with reference to the operation of railroads not inconsistant with the provisions of the statute and pursuant to that authority the Commission has promulgated certain rules with reference to the operation of common carriers in this State. I refer to the 60th Report of the Georgia Public Service Commission which contains such rules and which I assume are still in force and particularly to rule 11, subdivisions f, g, h. i, and j. By these subdivisions it is made the duty of each railroad to notify the Georgia Public Service Commission of each derailment, collision or train accident of any character occurring on their lines and to furnish detailed information with reference thereto on forms prescribed and furnished by the Commission.
By subdivision g, Rule 11, it is provided:

!37
"Carbon copies of monthly reports to the Interstate Commerce Commission will be accepted as a compliance with this section." This sentence evidently refers to the reports of accidents required by law to be made to the Interstate Commerce Commission. The rules referred to do not expressly prohibit the use of the reports filed with the Commission as evidence in any suit for damages growing out of the accidents reported as is the case with the Federal statute. Further, I can find no provision of any statute which expressly prohibits the exhibition or disclosure of these reports to the public or their use in evidence in any case pending in any court in this State. The purpose and aim to be accomplished by the promulgation of the rules of the Commission above referred to is evidently the same as that to be accomplished in case of the Federal statute touching the same subject matter and that objective unquestionably is to procure prompt, accurate, full and truthful reports as to the causes of such accidents so that the Commission will be fully advised in the premises and will thereby be enabled to promulgate such rules and regulations as will better protect the public interest. The policy of the law, therefore, would encourage full, complete, prompt, accurate and truthful reports in all instances and for that reason the reports as made in a sense are confidential and privileged and while there is no rule of the Commission or statute so far as I have been able to find expressly forbidding the disclosure of this information to the public, it would appear that such reports made to public officials are State matters of which the policy of this State and the interests of the community requires concealment. While I concede that the question presented is not free from doubt, in view of the fact that the disclosure of the information contained in these reports necessarily tends to defeat the object which the Commission desires to attain in requiring them to be made, I am of the opinion that such disclosure is against the public policy of the State and should not be made unless the Commission is required and directed to do so by a court of competent jurisdiction. If I can be of further service in this matter, please advise me.
GEORGIA PUBLIC SERVICE COMMISSION-Without authority to make advanced investigation and approve or disapprove extension of line of railroad
September 28, 1936 Hon. Jud P. Wilhoit, Chairman Georgia Public Service Commission State Capitol Dear Mr. Wilhoit:
This letter has reference to the letter of Messrs. Hull, Barrett & Willingham, General Counsel for the Georgia & Florida Railroad, dated September 24, 1936, and addressed to Georgia Public Service Commission.

238
I understand that the Georgia & Florida Railroad was incorporated in 1926, and under its charter provision has authority to operate and maintain a branch line of road beginning at Nashville, Berrien County, Georgia, and extending thence in a westerly direction via Sparks and Ellenton to Kingwood, and from Kingwood to Moultrie, Colquitt County, Georgia.
I further understand that the receivers of the Georgia & Florida Railroad at this time desire to discontinue their lease agreement heretofore held with the Atlanta, Birmingham & Coast Railroad for the use of the rails of the latter company from Kingwood into the City of Moultrie, a distance of 1.65 miles and to construct a line for the use and benefit of the Georgia & Florida Railroad covering this distance and that it is possible that a condemnation proceeding will be required for a portion of the right-of-way necessary in making the addition desired.
I find no provision of the general law or any rule or regulation adopted by the Commission pursuant thereto which requires advance investigation by and approval of the Commission for the extension of a line of railroad as contemplated by the receivers of the Georgia & Florida Railroad, as set out in the letter of Messrs. Hull, Barrett & Willingham above referred to except:
(a) If it shall become necessary to condemn any property in making the extension or addition proposed, it is my opinion that under Section 94-321 of the Code of 1933, the right of the receivers to prosecute such condemnation proceeding is dependent upon the approval of the Georgia Public Service Commission first obtained. This Section, among other things, provides that any railroad company owning or operating, or which may hereafter own or operate, a railroad or any part thereof in this State, may build and maintain such additional depots, "tracks and terminal facilities as may be necessary for the proper accommodation of the business of the company'' provided "that the right of condemnation under this Section shall not be exercised until the Public Service Commission, under such rules of procedure as it may provide, shall first approve the taking of the property or right-of-way designated for the public use or uses desired." Under the provisions of this Section it seems clear to me that the receivers of the Georgia & Florida Railroad would not be permitted to institute condemnation proceedings for the purpose of adding an additional track or facility to its road until the approval of the Commission is first obtained.
(b) If stocks, bonds or notes are to be issued to finance the construction of the additional line falling within the class designated in Section 93-414 of the Code of 1933, the Commission would be required ultimately to pass on the issuance of such stocks, bonds and notes.
Except in the particulars particularly pointed out, I am of the opinion that the Georgia Public Service Commission is without jurisdiction to deal with the matter referred to or to exercise a discretion with reference thereto and that the receivers are not required to obtain its sanction or approval.

289

GEORGIA PUBLIC SERVICE COMMISSION-Rights under certificate of convenience and necessity upon death of holder

October SO, 1986

Hon. J. M. Forrester, Secretary

Georgia Public Service Commission

State Capitol

Dear Sir:

'this is in response to your request for a legal opinion as made in

your letter of October 27th addressed to Mr. 0. H. Dukes, As~

sistant Attorney General.

I understand that Mr. M. M. Barrett of Winder, Georgia, recently

departed this life, holding at the time of his death a Class B Certifi-

cate of Public Convenience and Necessity, and was a qualified com-

mon carrier under the provisions of the Motor Carriers Act.

I understand further that the insurance carriers since his death

have filed with the Commission public liability and property damage

insurance in the name of M. M. Barrett and that two policies of

cargo insurance have been filed, one in the name of "Estate of M. 1\I.

Barrett and/or Mrs. M. M. Barrett" and the other in the name of

"M. M. Barrett and/or Mrs. 1\I. M. Barrett." In a personal inter-

view you have further advised that Mrs. M. M. Barrett has qualified

as administratrix on the estate of her deceased husband and is now

acting as such. I am not advised, however, whether Mrs. Barrett is

undertaking to operate the motor carrier business of her husband in

her capacity as administratrix or in her individual capacity.

The question of the legal status of a certificate of public conven-

ience and necessity issued under the provision of the Motor Carriers

Act of 1981 upon the death of the holder thereof is not free from

doubt; that is to say, it is difficult to determine whether the personal

representative of the deceased holder of the certificate acquires any

vested interest therein for administration.



In the case of Easterbrook v. Public Utilities Commission of Ohio,

112 Ohio State 417 (147 N. E. 761), it was held that a certificate of

public convenience and necessity is not an asset with which a re-

ceiver may be charged. The Commissions in other states have

dealt in a way with the question.

The South Dakota Board of Railroad Commissioners, in Re .

H. W. Odell, et. al., P. U. R. 1928C 106, dealt with a situation where

a husband had submitted an application for a certificate of public

convenience and necessity and had died before the certificate was

granted. The South Dakota Commission under the applicable law

was required to give priority to applications submitted according to

time and in that case it was held that the widow and administratrix

and principal heir at law of the deceased applicant was entitled to

the same priority as would have been given to her husband.

The Missouri Public Service Commission, In Re 0. B. E. Henson,

P. U. R. 1981A 251, had before it for determination a similar ques-

tion as that involved in the South Dakota case and in dealing with

the question presented the Missouri Commission held that it could

not grant an application for a certificate of public convenience and

240
necessity where the applicant died before the application is considered.
In view of the provisions of the Georgia statute with reference to issuing certificates of public convenience and necessity and the restrictions and limitations placed thereon as to the use thereof, I am of the opinion that Mrs. M. M. Barrett is not entitled in her personal and individual capacity to operate under the certificate issued to her husband M. M. Barrett unless she is his sole heir and by reason of that fact would be entitled to take charge of the property and assets of the deceased husband, under provisions of Section 113-903(1) of the Code of 1933 which in substance provide that upon the death of the husband without lineal descendants the wife is his sole heir and upon the payment of his debts, if any, may take possession of his estate without administration.
The situation, in my opinion, however, would be different if Mrs. Barrett in her capacity as administratrix on the estate of her husband, deceased, is operating his motor carrier business under this certificate. In Section 113-1523 of the Code, it is provided that an administrator may exercise his discretion in continuing the business of his intestate until the expiration of the current year. While there is some doubt, as stated above, with reference to the legal status of a certificate upon the death of the holder, at the same time it occurs to me that the Commission should cooperate with an administrator as far as may be done consistent with the public's best interest to the end that the personal representative of the estate of such deceased person may be able to dispose of the physical assets used by the motor carrier in his business and that the Commission upon equitable principles might recognize an equitable right of transfer of the certificate on the part of the purchaser of such assets where this can be done without injury and detriment to the public interest.
I am of the opinion too that the Commission should not permit operations under this certificate of public convenience and necessity even by the personal representative of the estate of the deceased indefinitely. On the contrary, within a reasonable time the certificate should be revoked, suspended or transferred to some person or corporation having such legal status that the legality of the certificate would be beyond doubt.
The insurance recently filed with the Commission, it would appear, is improperly made out. From your statement the public liability and property damage insurance policy names M. M. Barrett as the insured. This is certainly improper. The name of the insured in the policy should accord with the name and character of the person actually conducting the operations at the time. One of the cargo policies, it would seem, is written in the name of "Estate of M, M. Barrett and/or Mrs. M. M. Barrett." The term "Estate of M. M. Barrett" has been held by the courts to be so indefinite as not to identify any particular person. If the administratrix in her representative capacity, is conducting the business, the insured should be written as "Mrs. M. M. Barrett as Administratrix on the Estate of

M. M. Barrett, deceased" and the same might be said as to the designation oi the insured in the other cargo policy.
If Mrs. Barrett is conducting the operation in her personal and individual capacity, the insured in the several policies should be designated as "Mrs. 1\L M. Barrett" and an endorsement should be placed on or attached to those policies under the terms oi which the insurance companies accept knowledge of the exact legal status oi the business and the situation with reference to the certificate oi public convenience and necessity. If an insurance company thus issues or maintains its policies with full knowledge of all the facts, I am of the opinion that it could not deny liability thereunder with respect to a loss against which it may legally issue a policy.
GEORGIA PUBLIC SERVICE COMMISSION-Power and authority of Commission in relation to issuance oi stocks and bonds by motor carriers
November 23, 1936
Georgia Public Service Commission State Capitol
Attention: Hon. Jas. A. Perry Dear Sirs:
I have noted the letter from Honorable E. Smythe Gambrell to Georgia Public Service Commission dated N overmber 19, 1936, making inquiry as to the Commission's present position with respect to its jurisdiction to deal with and approve or disapprove securities issued by motor carriers. I understand also that you wish my opinion as to whether or not the Public Service Commission, under the _law, has jurisdiction to supervise such transactions by motor earners.
At the request of Chairman Wilhoit on June 18, 1934, I rendered an opinion on this legal question and furnished the same to the Commission. A copy of the opinion as then rendered and submitted is attached hereto. I am now of the opinion that the conclusion then reached as set forth and expressed in my letter of June 18th was correct, but since that time the Code of Georgia of 1933 has been formally adopted by the legislature. Section 1 of the Adopting Act provides as follows:
"That the Code of laws oi the State of Georgia, which was prepared under the direction of the Code Commission created by joint resolution approved August 27, 1929, and composed of Honorable S. Price Gilbert, Associate Justice of the Supreme Court, Honorable Nash R. Broyles, Chief Judge of the Court of Appeals, Honorable George W. Stevens, Reporter of the Supreme Court, the Speaker of the House of Representatives, and the President of the Senate, and which was approved by said Commission after it was so prepared and which was published and became effective January 1, 1935, by a proclamation of the Governor, entered pursuant to the Act approved March 24, 1933, and which is

known and described as the Code of Georgia of 1933, be, and the same is hereby adopted and made of force as the Code of Geortia, havint the force and effect of statutes enacted by the General .!lssembly of this State." (Underscoring supplied).
Section 93-414 of the Code of 1933, adopted as a statute of the State of Georgia as of February 14, 1935, the date of the approval of the adopting Act as aforesaid provides, among other things, as follows:
"Each of the companies or corporations over which the authority of the Public Service Commission is extended by law shall be required to furnish said commission a list of any stocks and bonds, the issuance of which is contemplated, and it shall be unlawful for any of said companies or corporations to issue stocks, bonds, notes or other evidences of debt, payable more than twelve months after date thereof, except upon the approval of said Commission, etc."
On the date of the approval of the Code Adopting Act, Georgia Public Service Commission was vested with authority to regulate motor common and motor contract carriers and apparently by the terms of the Act the Code section above referred to was given the force and effect of a statute enacted by the General Assembly of the State of Georgia and accordingly vested in the Commission jurisdiction and authority to deal with and approve or disapprove the stocks, bonds and other obligations issued by motor common carriers just as had been the case theretofore with reference to other public service corporations.
The Supreme Court of this State in several cases has dealt with the question as to the legal effect of an Act of the General Assembly of Georgia adopting as the law of the State a code of laws as prepared and presented by Commissions. The decisions are not in entire harmony with each other and while I realize the force of an argument to the effect that the Code Commission and the compilers of the Code of 1933 would be presumed to set forth the law only as it existed at that time, yet in view of the clear and unambiguous language contained in the Adopting Act of February 14, 1933, (Ga. Laws 1933, pages 84 and 85) I am of the opinion that Section 2665 of the Code of 1910 (Section 93-414 of the Code of 1933) was reenacted as a statute of this State and, when so considered, certainly by its terms would cover motor carriers.
It is not to be understood, however, that the authority is unlimited. It must be exercised subject to the power vested in Congress to regulate commerce among the several States under the commerce clause of the Federal Constitution. The Commission cannot, with respect to interstate operations, make any requirement or enforce any rule or regulation that will directly burden or interfere with interstate commerce. I mention this fact because the letter of Mr. Gambrell indicates that his client is a foreign corporation doing an interstate business.

243
The Motor Common Carriers Act of 1931 recognizes this limitation. In Section 30 of the Act (Code of 1933, Section 68-633) it is provided that the Commission may require carriers engaged solely in mterstate commerce on or over the highways in the State of Georgia to register with the Commission the routes over which they operate, the number of motor vehicles and trailers operated by them and to give bond or indemnity insurance provided by the Act, excepting insurance protecting their own passengers and cargoes, and annually to pay the registration fee prescribed by the Act. It is then provided as follows:
"It is not intended that the Commission shall have the power of regulating the interstate commerce of such common carrier, except to the extent herein expressly authorized as to such commerce." This limitation, in my opinion, within itself would have the effect of excluding or restricting the power of the Commission to the prescribed rules or regulations that exact the performance of any duty with respect to securities, stocks, bonds or the financial set-up of a foreign corporation engaged exclusively in interstate commerce, and even though it be conceded that the carrier is engaged both in interstate and intrastate commerce and is a foreign corporation, I am still of the opinion that the Commission would be without authority to prescribe any rule or regulation or exact any duty with respect to its securities, indebtedness or financial organization, and to attempt to do so would contravene the commerce clause of the Federal Constitution in that the effect of such Act or procedure on the part of the Commission would be to burden or interfere with interstate commerce. I am returning you herewith the letter of Mr. Gambrell above referred to.
REGENT&-Without authority to pay hospital bill of student injured in accident
March !t2, 1935 Mr. L. R. Seibert, Secretary Regents of the University System of Georgia State Capitol Dear Mr. Seibert:
I have yours of the 20th instant requesting an opinion as to the liability of the Regents of the University System for a hospital bill for $44.00 and other claims for medical attention arising out of an accident in which Miss Lasseter, a student enrolled at the Georgia State Teachers College, was injured while riding with a Mrs. MeN orrell of Statesboro.
In reply, I refer you to Section 32-117 of the Code of Georgia of 1933 which provides:
"When moneys or properties are appropriated by the legislature or received from any other source by the Board of Regents for the use and benefit of any particular institute, the said Board,

unless directed otherwise by the General Assembly, shall not use said moneys or properties except for the benefit of the institution for whose use the moneys or property was donated." Under a proper construction of this Section, I do not feel that the Board of Regents is authorized to pay the hospital bill of Miss Lasseter or any other expense arising out of the accident referred to in your letter.

REGENTs-Disposition of insurance money where building de-

stroyed by fire

Mr. L. R. Seibert, Secretary

March 29, 1935

Regents, University System of Georgia

State Capitol

Dear Mr; Seibert:

I have your letter of March 28th in which you state that the Geor-

gia Industrial College owed the Barnesville Planing Mill of Barnes-

ville, Georgia, a stipulated sum of money for lumber and building

material used in the construction of a barn on the campus of the

Georgia Industrial College; that the barn was recently destroyed by

fire and that the Regents carried insurance totalling more than the

amount due on this note.

You desire to know if the Regents may pay this claim from the

insurance money collected, to the exclusion of all other creditors

occupying a similar legal status.

I know of no provision of law which would prohibit the Regents of the University System from preferring one creditor over another.

I assume from your letter that the Industrial College is not indebted

to any other creditor on account of supplies or materials furnished

for the construction of this barn, but that the other creditors oc-

cupying a similar legal status to which you refer are general unsecured creditors.

If the debt to the Barnesville Planing Mill is for supplies and

material which went into the construction of this particular barn,

it seems to me that in equity and good conscience the debt ought to be paid out of the proceeds of the insurance on the particular

property. Of course, this company has no lien on the fund since it

had no lien on the property, but I know of no reason why the Board

of Regents cannot pay it out of the insurance fund and under the

facts you state I think the Board ought to pay it.

REGENTS-Authority to convey real estate
July 22, 1935 Mr. L. R. Seibert, Secretary Regents, University System of Georgia State Capitol Dear Mr. Seibert:
Responding to your inquiry as to conveyances to be made to the property under the control of the Board of Regents and which they are authorized to dispose of under the Act of the General Assembly

245
of 1935; these conveyances should be made in each instance to the individual members of the various county boards of education and their successors in office, where the conveyance is for the use of county school systems. By the provisions of Section 32-909 of the Code of 1933, the county boards are invested with the power to take title to all property within the respective counties for school purposes. The county boards of education have general supervision of all school buildings and the custody, control and maintenance thereof.
The intention of the Board of Regents in conveying this property is that it be used for school purposes, by the school officials designated by law and in conformity to the general school system provided by the statutes of the State on this subject and for that reason, all such conveyances should be made as above indicated.
REGENTS-Rights of parties under contract with teacher
July 81, 1985 Mr. L. R. Seibert, Secretary Board of Regents State Capitol Dear Mr. Seibert:
This will acknowledge receipt of your letter of July 30th with attached correspondence relative to salary controversy of Miss Florence Barnett.
From the correspondence it appears that Miss Barnett was reemployed for the school year of September 1st to August Slst, beginning September l, 1932. Pending this contract of employment, the Board of Regents changed the fiscal year of the University System so that contracts would begin on July lst of each year and terminate on June 30th of the next year.
Miss Barnett was duly notified of this change in the method of contracting for instructors in the Milledgeville institution, and entered into a contract under the new system for the new fiscal year, beginning on July l, 1933, and ending on June 30, 1934; and likewise from July I, 1934, to June 30, 1935.
It appears that Miss Barnett received the monthly salary of $141.66 under her contract which commenced on September 1, 1932, and also that she received the same monthly salary under her contract made after the change in the fiscal year, beginning July 1, 1933, and continued to receive the same monthly salary until the termination of her relations with the school on June 30, 1935.
"An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject matter embraced by the original contract." (Hewlett v. Almond, 25 Ga. App. 346.) When Miss Barnett was tendered a contract under the new fiscal system, she had the privilege of rejecting the contract and insisting upon completing the then existing contract, but when she accepted the new contract covering the subject matter of employment, under

246
all the circumstances and conditions surrounding the transaction, the old contract was superseded and discharged and as she was paid for the two months involved under the new contract, there is no liability for any further payment and the effect of further payment, under the circumstances, would be to pay Miss Barnett two monthly salaries of $141.66 for each of the months of July and August, 1983.
REGENT&-No person can acquire a lien against public property
November 19, 1986 Mr. L. R. Seibert, Secretary Board of Regents State Capitol Dear Mr. Seibert:
This will acknowledge your letter of even date inclosing copy of letter addressed to you by Hon. J. E. Owen, County School Superintendent of Morgan County.
No person can acquire any lien against public property. Neither the material men nor the laborers who did work on the buildings have any right to a lien against the property. Any effort to foreclose such a lien, and any sale as a result of such attempted foreclosure would be a mere nullity.
The public school funds cannot be used to discharge any liability of this character. According to the letter of Mr. Owen the county board of education has fully discharged its debt to the contractor, U. H. Patrick.
Code Section ~8-1705 requires public officials to take a bond in cases of this character. Evidently the Board of Education and Superintendent of Schools of Morgan County were ignorant of this provision, or overlooked the same, however, their failure to comply with the provisions of this Act does not impose any liability on public property or public funds.
INCOME TAXATION-Salary of Federal Reserve Agent at Federal Reserve Bank not subject to income taxation
March 16, 1985 Hon. Paul H. Doyal, Chairman State Revenue Commission State Capitol Dear Mr. Doyal:
This department has had under consideration for some time the question of the liability of Mr. Oscar Newton, Federal Reserve Agent at the Federal Reserve Bank, for income tax on his salary.
We have gone very thoroughly into the matter and have considered all the facts and pertinent court decisions. We have reached the conclusion that Mr. Newton is an official of the United States Government and that his salary paid him by the Federal Reserve

Bank of Atlanta for his services as Federal Reserve Agent is not subject to taxation by the State.
The same ruling will apply to the salary of the Assistant Federal Reserve Agent.
The question was one which gave us considerable concern. It is not without some doubt. However, we think the plain purpose of the Act of 1931 was to exempt salaries of Federal employees and it seems to us that Mr. Newton is as much an employee of the United States, and that his salary is paid by the United States to the same extent, as if he were a member of the Federal Reserve Board itseli. The question is not, in our opinion, close enough to authorize resolving any doubt in favor of the State.
TAXATION-Lien of special taxes
April ~5, 1935 Hon. R. E. Matheson State Revenue Commission State Capitol Dear Mr. Matheson:
Your letter of recent date enclosing a copy of the letter from Mr. W. L. Harwell, Tax Collector of Glynn County, making inquiry as to whether or not special taxes, such as those levied against pool rooms, taxi concerns and barber shops have the same standing if levied as ad valorem taxes, received.
The Supreme Court of this State, in the case of Atlanta Trust Company, trustee, v. Atlanta Realty Corporation, et. al., 177 Ga. 581, decided these questions in the affirmative, the decision being in part as follows:
"The words 'liens . . . for taxes,' as employed in the Civil Code . . . are broad and sufficient to include taxes provided by subsequent statute, for support of the State and counties and municipal corporations located in the State, that are not ad valorem or based on property."
EXEMPTION FROM TAXATION-What veterans exempt from special taxes
April ~7, 1935 Hon. Paul H. Doyal, Chairman State Revenue Commission State Capitol Dear Mr. Doyal:
I have your letter of April ~3rd requesting my construction of the Act of the General Assembly approved March 15, 1935, amending Section 84-~011 of the Code of 1933 which relates to exemptions from occupation taxes of certain veterans. You request my opinion on the following questions:

248
1. Does the provlSlon of the amendment specifying that the veteran entitled to a license must be "suffering from physical handicap disabling to the extent of ten per centum or more" repeal provision for licenses to indigent veterans?
The section of the Code above referred to, before it was amended, provided that any disabled or indigent veteran should be accorded the privileges therein granted upon obtaining the required certificate. The Amendatory Act of 1935 does not strike from the Code Section the word "indigent." It does, however, expressly provide that:
"No veteran shall be entitled to a license to peddle or to conduct a business under this section until it has been made to appear to the issuing authority that the veteran making application therefor is suffering from a physical handicap disabling to the extent of ten per centum, or more; that the total income of such veteran is such that he is not liable for payment of Federal Income Tax; and that his services, or some part thereof, were rendered during a war period as defined by an Act of Congress of the United States, approved March 20th, 1933, entitled: 'An Act to Maintain the Credit of the United States,' and commonly known as Public No. 2, 73rd Congress." The quoted language of the Act of 1935 contains no exception in favor of indigent veterans, but it is expressly declared that no veteran shall be entitled to the privilege referred to unless he meets the requirements therein set forth. Under the old law an indigent veteran might be licensed irrespective of the nature or extent of his disability. The Act of 1935, while not striking the word "indigent" from the code section, does prescribe additional requirements which must be met as conditions precedent to the granting of the privileges referred to; and, expressly conditions the right to the exemption upon the existence of a status which was not required to be established under the old law by a veteran who sought an exemption on account of indigency. I must hold, therefore, that the effect of the Amendatory Act is to repeal the provision for licenses to indigent veterans, and that irrespective of indigency, every applicant for a license must meet the requirements embodied in the language quoted above.
2. Does not this amendment relieve the Ordinaries of the State of the discretionary powers under which said licenses have heretofore been issued, and require the veterans to produce to the Ordinaries satisfactory proof of the physical disability and the extent thereof, income of the veteran, and period in which the military service was rendered?
Under the old law an Ordinary was authorized to grant a certificate of exemption upon such proof as, in his discretion, he might consider sufficient to establish the fact of disability or indigency, Under the Amendatory Act the per centum of disability required is expressly made a condition precedent to the issuance of a license. It is also expressly provided that it must appear that the total income of the veteran is not sufficient to make him liable for the amount of Federal Income Tax. The effect of placing these requirements in law is to

repeal so much of the old law as authorized the Ordinary, in his discretion, to issue certificates. In my opinion an Ordinary is not now authorized to issue a certificate unless and until the applicant produces satisfactory proof of physical disability to the extent required by the Act, satisfactory, proof that his income is not sufficient to subject him to the payment of Federal income tax, and satisfactory proof that his military service was rendered during a war period as defined by the Act of Congress referred to. Certificates issued by the Ordinary without the production of this proof, are not sufficient.
3. Does the amendment providing for new conditions upon which the licenses are issued in effect void all licenses issued prior to the approval of this Act and make it necessary for the veterans to procure new licenses from the Ordinaries as a condition precedent to obtaining the exemption certificate from the State Revenue Commission of Georgia?
In my opinion, the effect of the Amendatory Act of 1935 was to avoid all certificates theretofore issued by the Ordinary. This is true for the reason that such certificates could be issued by the Ordinary without any reference to the percentage of disability of the applicant or the amount of his income. The Act of 1935 restricts the privileges which were granted under the old law and limits the class of persons entitled to the exemption from taxation to those who meet the requirements above referred to in answer to your Question No. 1. These requirements are not set forth as prerequisites to the issuance of the certificates by the Ordinary, but as prerequisites to the granting of the privileges conferred by the law. In my opinion, an applicant for a certificate of exemption must not only show that he meets the requirements of the Act of 1935, but that proof to that effect was submitted to the Ordinary when the certificate of the Ordinary was issued. The certificate of the Ordinary must affirmatively show that the person to whom it is granted has complied with the Act of 1935. If the applicant does not meet the requirements of the Act of 1935 he is not entitled to the exemption. Necessarily, therefore, certificates issued under the old law when there existed no statutory requirements to be met by the applicant can no longer be operative.
TAXATION-Issuance of fi. fas., for professional. taxes, and who subject thereto
May 11, 1935 Hon. Paul H. Doyal, Chairman State Revenue Commission State Capitol Dear Mr. Doyal:
I have your letter of May 7th in which you state Mr. Henry Davidson, who has been commissioned for the collection of delinquent professional taxes, has requested you to issue an execution against J. M. Shelton, Vice President of Roberts & Co., who, Mr.

250
Davidson states, is a practicing architect, and has not paid his professional taxes.
You submit two questions. 1. Is there any authority vested in the State Revenue Commission to issue such fi. fas., for the collection of professional or business taxes which are supposed to be issued through the Tax Collectors of the various counties? In reply to this question, I beg to advise that in my opinion the State Revenue Commission is empowered to issue an execution against any person, firm or corporation who may be due the State of Georgia any taxes. The language of Section 9fl-7301 of the Code of 1933 expressly authorizes and empowers the State Revenue Commission to issue an execution.
"In the case of any tax due the State . . . . whether so specifically provided in the law levying the tax or not." The fact that the particular tax may be required to be paid to the Tax Collector in the first instance does not change the rule; neither does the fact that the Tax Collector is empowered to issue execution for such tax. I think that the provision of the Code just referred to which was taken from the Reorganization Act of 1931, provides a cumulative remedy for the collection of any sort of tax which may be due the State. 2. Is an architect who is an officer of a firm or corporation engaged in engineering business, and whose services are rendered exclusively for such concern, subject to the professional tax? Paragraph three of Section 2 of the General Tax Act now of force levies a tax of $15.00 per year
"Upon each and every . . . . . architect, charging for their services as such." If an architect is engaged in the practice of his profession, even though he may devote his entire time and services to a particular person or corporation, and is receiving compensation for his services as an architect, he is due this tax. For example, the members of the Department of Law are required by statute to devote their entire time to the service of the State, and do so. Nevertheless, they are engaged in the practice of law for a compensation and each member of this department pays his professional tax.
MALT BEVERAGE8-Definition of "governing authority" of a county as used in the Malt Beverages Act
June 5, 1935 Hon. R. E. Matheson State Revenue Commission State Capitol Dear Mr. Matheson:
Your letter of recent date requesting our opinion as to what is meant by the "governing body" of municipalities and the "governing authority" of counties as used in the Beer License Act received.

251
The words "governing body" and the words "governing authority" as used in the Beer License Act to indicate what "body" shall have the authority to fix the license fees and issue permits are practically synonymous and mean that "body" which has charge of the fiscal affairs of the municipality or of the county with authority to assess, levy, and provide for the collection of taxes, make contracts, pay expenses, and has general control over the fiscal affairs of a municipality or a county.
I am of the opinion that generally in a municipality the Mayor and Council is the "governing body" authorized to fix the fees and issue permits for the sale of beer. Some municipalities may have a managerial form of government, with authority over the fiscal affairs of the municipality which under the provisions of the charter might be called the "governing body." I am not familiar with the charters of all of the municipalities of the State.
In a county having a board of county commissioners the "governing authority" authorized to fix license fees and issue permits is the board of county commissioners. Some counties have a one-man county commissioner form of government and a few counties, as I understand, have a managerial form of government. In a few counties the Ordinary is the "governing authority" having charge of the fiscal affairs of the county. In every and all instances the "governing authority" is that body which has charge and control of the fiscal affairs of the county with authority to assess, levy and provide for the collection of taxes, to incur obligations and make contracts on the part of the county and to pay the county's obligations out of the funds belonging to the county.
TAXATION-Commission of tax collector on delinquent special or occupation taxes
June 20, 1935 Hon. R. E. Matheson State Revenue Commission State Capitol Dear Mr. Matheson:
Replying to your verbal request for an opinion as to the commissions to which a tax collector is entitled for the collection of delinquent special or occupation taxes, I beg to advise as follows:
Under Section 92-5207 of the Code of 1933 where a tax collector collects delinquent special or occupation taxes he is entitled, for the collection of the principal sum of the taxes, the commissions allowed by law for such collections. That is to say, the tax collector is entitled to the same commission for collecting the tax after delinquency that he would be entitled to if he had collected it before delinquency. This applies, however, only to the principal amount of the tax itself. In addition to his commission for collecting the principal amount, the tax collector is entitled to a commission of ten per cent. of the amount of the penalty collected. In other words, if a tax collector

!l52
should collect delinquent corporation taxes, he would not be entitled to a commission of ten per cent. for collecting the principal amount of corporation tax, but for that collection he would be entitled to the scale of commission fixed by law for the collection of corporation taxes. He would, however, in addition to that commission on the principal amount of taxes, be also entitled to ten per cent. of the penalty collected on account of the delinquency of the corporation tax.
TAXATION-Income tax records of State not available to city officials
June 26, 1935 Hon. Aubry Milam Greene & Milam 1 Produce Row Atlanta, Georgia Dear Mr. Milam:
I am in receipt of your communication to which you attach a copy of a resolution of the Mayor and General Council of the City of Atlanta, approved June 18th, 1935, requesting the Governor and the State Revenue Commission to make available for the examination by the City Tax Officers the income tax records held in the custody of the State of Georgia.
Section 92-3216 of the Code of Georgia of 1933, which is taken from the Income Tax Act of 1931, provides as follows:
"Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the State Revenue Commission, any agent, clerk, or other officer or employee, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this law. Nothing herein shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the terms thereof, or the inspection by the Attorney General or other legal representative of the State of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted to recover any tax or any penalty imposed by this law. Reports and returns shall be preserved for five years, and thereafter until the Commission orders them to be destroyed.
"Notwithstanding the provisions of this section, the Commission may permit the Commissioner of Internal Revenue of the United States, or the proper officer of any state imposing an income tax similar to that imposed by this law, or the authorized representative of either such officer, to inspect the income tax returns of any taxpayer, or may furnish to such officer or his authorized representative an abstract of the return of income of any taxpayer or supply him with information concerning any item

of income contained in any return, or disclosed by the report of any investigation of the income or return of income of any taxpayer; but such permission shall be granted, or such information furnished to such officer or his representatives, only if the statutes of the United States or of such other State, as the case may, be, grant substantially similar privileges to the proper officer of this State charged with the administration of this law." Section 92-9914 of the Code of Georgia of 1933 is as follows:
"An offense against the first paragraph of Section 99-3216 prohibiting the divulging of information concerning income taxes, shall be punished by a fine of not exceeding $1,000.00, or by imprisonment not exceeding one year, or both at the discretion of the court; and if the offender is an officer or employee of the State, he shall be dismissed from office and be incapable of holding any public office in this State for a period of five years thereafter." You will note that it is made a criminal offense for the State Revenue Commission or any agent, clerk, or other officer or employee of the Commission to divulge or make known the amount of income or any facts set forth in any report or return required to be filed by the Tax law. The only exceptions provided by statute are in cases where the return is produced in accordance with the proper judicial order, or the information is furnished to the Commissioner of Internal Revenue of the United States, or the proper officer of another State imposing an income tax similar to the Georgia Income Tax. In the latter cases the information may be made available only in the event the statutes of the United States or of such other State grant substantially the same privileges to this State. I am of the opinion that under the sections of the income tax law quoted, the State Revenue Commission is not authorized to comply with the request of the Mayor and General Council of the City of Atlanta, and that any member of the Commission who undertook to comply with this request would be guilty of a criminal offense. I am quite sure the State Revenue Commission would be willing to cooperate with the city authorities in any way possible, I am also quite sure that the city would not desire the Commission to do something prohibited by the State law.
TAXATION OF MOTOR VEHICLE&-Kind of license tag necessary
July 16, 1935 Hon. Paul H. Doyal, Chairman State Revenue Commission State Capitol Dear Mr. Doyal:
This will acknowledge your letter of July 16th in which you request an opinion as to whether the laws of this State authorize the State Revenue Commission to adopt a patent device tag, claimed to be permanent when attached to an automobile, as a substitute for

the present method, now in use for furnishing tags, or vehicle license
plates. The statutes dealing with the licensing of motor vehicles are
passed in pursuance of the police power of the State. By virtue of the statutes, the State Revenue Commission is authorized to make
certain rules and regulations to carry out the legal provisions. The State Revenue Commission has no authority to legislate on this subject, the power of legislation being vested in the General Assembly.
The statutes provide that on or before the first day in February in each year, every owner of a motor vehicle in this State shall ob-
tain a license to operate the vehicle for the ensuing year and a penalty is provided for those who fail to obtain such license. Applications for licenses must be in writing, sworn to by the owner of the vehicle and filed with the Commission. The law further provides (Code Section 68-~09) that:
"The State Revenue Commission shall have in their possession
on or before December 1st of each year, for distribution, the license tags provided for in this law." This, of course, means for distribution to motor vehicle owners for the succeeding year, beginning February 1st. It is further provided (Code Section 68-214) that when the application is filed and the required fee paid the State Revenue Commission shall file the application, register the vehicle, assi!,!n to it a distinctive serial number, and make the same a matter of record. When this is done, the Commission is required to furnish to the owner two metal number plates, showing thereon the serial number designated to such vehicle. From this, it will be clear that the General Assembly left no dis-
cretion in the State Revenue Commission as to the method of licensing vehicles and the manner in which tags or motor vehicle license plates shall be provided to those who comply with the law in making applications and paying the prescribed fees. I call your attention to another provision of the law (Code Section 77-332) which authorizes the Prison Commission, in its discretion, to manufacture and supply automobile license tags. This provision of law, while not mandatory, at the same time expresses the public policy of the State in the use of its convict labor for the purpose of manufacturing automobile license tags and is in keeping with the other provisions of the law on the subject of providing license tags for use in this State.
For the reasons above given, it is my opinion that the State Revenue Commission has no authority to adopt any tag or other devices as a substitute for the tags or motor vehicle license plates as set out in the statute above referred to.

2.55
MALT BEVERAGES ACT-state Revenue Commission without authority to recognize a license issued by the county authority for the sale of beer within city limits
October 16, 1935 Hon. R. E. Matheson, Commissioner State Revenue Commission State Capitol Dear Mr. Matheson:
I have your letter of October lOth with reference to the sale of beer in the City of Hahira, Georgia.
I have gone over the file and have carefully noted the contents of the letters written to you by Hon. H. B. Edwards of Valdosta.
As Mr. Edwards states, I have expressed the opinion that the recent Malt Beverages Act supersedes any provision of a town charter which prohibits the sale of beer. I understand there is such a provision in the charter of Hahira and that because of this provision the city council will not grant licenses.
Mr. Edwards desires to know if you will recognize a license granted by the county for the sale of beer in Hahira, and you request my opinion as to whether you have such authority.
The Malt Beverages Act expressly vests. in the county authorities power to license the sale of malt beverages in the county and outside of the limits of municipal corporations. It expressly vests in the city authorities jurisdiction to license the sale of beer in municipalities. The jurisdiction to grant licenses in their respective territories is exclusive in the city and county authorities. The county commissioners cannot legally grant a license which would authorize the sale of beer in a municipality; neither can the city authorities legally grant a license which would authorize the sale of beer outside a municipality.
It is my opinion therefore that you are not authorized to recognize a license issued by the county authorities for the sale of beer in Hahira. I think such a license would be wholly void for want of jurisdiction and authority to issue it.
TAXATION-Income of trust fund taxable
November 16, 1935 Hon. John A. Smith, Chief Clerk Income Tax Division State Revenue Commission State Capitol Dear Mr. Smith:
I have your recent letter and the file relating to the taxation of the trustees of the Frances Clementine Tucker Fund.
As I understand the facts, Mrs. Tucker made a will, the material portion of which is as follows:
"I give, devise and bequeath to 0. E. and M. C. Horton, in trust, all of my estate that I may have at the time of my death

after the payment of my funeral expenses, to be invested in safe securities, and the income arising therefrom to be used for the purpose of educating poor worthy girls of good families and legitimate. This fund to be used as the Frances Clementine Tucker Fund." Under the terms of this will the named trustees became fiduciaries charged with the duty of executing the trust contained in the instrument. The will itself makes no particular beneficiaries of the trust, but leaves to the trustees the matter of determining the objects of the testator's bounty within the class created by the will. Under the will itself no part of the income derived from the trust fund becomes distributable at any time, since the matter of distributing these funds is wholly within the discretion of the trustees. In actual practice, the trustees do not distribute any part of the income. As I understand the facts, they simply loan the money to such members of the class as they may select for that purpose and funds thus loaned are used by the borrowers for educational purposes, but are required to be repaid with interest. In these circumstances, I am of the opinion that the trustees named are fiduciaries within the meaning of the income tax law and that the income received by them as such fiduciaries from the property of the testator, Mrs. Tucker, is subject to taxation at the rate prescribed for fiduciaries, and subject to the exemptions allowed to fiduciaries.
Section 9fl-8103 of the Code of 1938, which contains the relevant provisions of the income tax act, provides as follows:
"The tax imposed by this law shall be imposed upon resident fiduciaries and upon nonresident fiduciaries having in charge funds or property for the benefit of a resident of this State, and at the rates provided for individuals, which tax shall be levied, collected, and paid annually with respect to:
"(a) That part of the net income of estates or trusts which has not become distributable during the taxable year."
The evident purpose of sub-section (a) was to provide for the taxation of the income to the fiduciary where it did not become distributable during the taxable year under the terms of the instrument creating the trust. Where the income does become distributable during the taxable year, it is taxable to the beneficiary and not to the fiduciary.
Under the terms of Mrs. Tucker's will, no part of the income from the trust fund becomes distributable to any designated beneficiary. The income may be distributed by the fiduciary, under the terms of the trust instrument, but, in actual practice no such distribution is made, and there is nothing in the trust instrument which requires such a distribution to be made, or lays down any exact rule for the guidance of the fiduciary in determining the distribution.
For the reasons stated, I am of the opinion that the entire net income, subject to the exemption provided by law, of this trust fund is subject to taxation.

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I have carefully considered the brief submitted by the trustee,

including the narration of the facts and circumstances under which

the trust fund is administered. The cases cited are obviously not in

point. They relate to the constitutional authorization for the exemp-

tion of certain property from ad valorem taxation, and to the statute

enacted .in pursuance of this constitutional provision.

.

Section 9~-3105 of the Code of 1933 exempts from taxation under

the income tax act, certain organizations therein defined. Among

these organizations are

"(c) Cemetery corporations and corporations organized for

religious, charitable, scientific or educational purposes, or for the

prevention of cruelty to children or animals, no part of the net

earnings of which inures to the benefit of any private stockholder

or individual."

It is a uniform rule that statutes affording exemption from taxa-

tion must be strictly construed in favor of the State and against the

person claiming the exemption. Snipes v. Flournoy, 178 Ga. 815-817;

Standard Oil Company v. State Revenue Commission, 179 Ga.

371-375.

Since the fiduciary here is not a charitable corporation within the

meaning of the provision of law last quoted, it cannot claim the

benefit of that provision. To so hold would be to extend the exemp-

tion beyond the plain language of the statute.

For the same reason, it is necessary to hold that the income of the

trust fund is not distributable within the meaning of the relevant

provision of the income tax act last quoted herein. This provision

affords a quasi exemption from income taxation, by way of excepting

from the operation of the Act certain income of the fiduciary. Being

an exception or limitation, in derogation of the taxing provision of

the Act, it must be strictly construed in favor of the State. This

being true, I must hold that all of the income of a fiduciary except

such as may be distributable according to the terms of the instru-

ment creating the trust, is subject to taxation. The fact that some

of the income may actually be distributed does not operate to remove

it from taxation, where under the terms of the instrument the matter

of distributing or not distributing is left wholly in the discretion of

the trustee.

I am in sympathy with the purpose of the testator in creating the

trust referred to. The record before me evidences a very diligent

devotion by the trustees to the execution of the wishes of the testator.

I have no doubt his efforts have resulted in a very great deal of good

to a large number of people. However, these facts do not authorize

me to disregard what seems to me to be plain and unambiguous

provisions of law. I know of no provision of the income tax act

which would authorize you to exempt this fiduciary from taxation.

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REGISTRATION OF MOTOR VEHICLE&-Interpretation of the laws governing the registration of motor vehicles
November 18, 1935 Hon. Paul H. Doyal, Chairman State Revenue Commission State Capitol Dear Mr. Doyal:
I have your letter of November 16th inclosing a communication to the Governor from Mr. L. L. Austin, Secretary of the Atlanta Automobile Association. In connection with the request made upon the Governor by Mr. Austin, you request my opinion upon certain legal questions which are set out in your letter and which are answered in the order propounded.
I. Does the motor vehicle registration law provide or contemplate a registration for each calendar year, the expiration for the use of which expires at midnight of February I of the succeeding year?
In my opinion Section 68-201 of the Code of 1933 relating to the registration of automobiles, contemplates a registration for each calendar year. This section provides that every owner of a motor vehicle "shall, on or before the first day of February in each year, before he shall operate such motor vehicle . . . . register such vehicle in the office of the State Revenue Commission and obtain a license to operate the same for the ensuing year."
The word "year," unless a contrary meaning is expressly provided, means a calendar year. (Code of 1933, Section 102-103). It seems clear, therefore, that the period for which the license is operative is for the calendar year in which it is issued, but that it does not expire until February 1st of the succeeding year. The period for obtaining licenses is from January 1st, in each year until February 1st, in each year. If any license is obtained after February 1st, the owner is is subject to a penalty of 20% of the registration fee.
2. Can any motor vehicle operate during any part of the calendar year without a registration and tag for that calendar year?
Subject to the limitation above referred to, it is my opinion that no motor vehicle may be legally operated during any part of any year without a registration and tag for that calendar year. As stated above, a tag issued during 1935 is good until February 1st, 1936. With this qualification, however, the motor vehicle must at all times bear a license tag issued during the calendar year in which it is operated.
3. Is there any provision of the motor vehicle registration law which will permit our Commission to put on sale the tags for the succeeding calendar year before the first day of that calendar year?
4. Can the owner of a motor vehicle purchased in the latter months of a calendar year purchase and use for the balance of that calendar year a tag issued for the succeeding calendar year?
These two questions will be answered together. There is no provision of the motor vehicle registration law which permits the Commission to put tags on sale for any calendar year before the

259
first day of that calendar year. This being true, the owner of a motor vehicle purchased in the latter part of any calendar year cannot legally operate the same during such calendar year without a tag for that calendar year.
I know of no provision of the motor vehicle law which would permit the Commission to now sell 1936 tags. If the Commission were to now sell 1936 tags, the operation of automobiles equipped with such tags would be illegal.
VETERANS-Construction of Acts exempting veterans from taxation
November 29, 1985 Hon. R. E. Matheson State Revenue Commission State Capitol Dear Mr. Matheson:
I have your letter of the 27th inclosing a communication from Hon. John L. Cabell, Tax Collector of Chatham County, with reference to Section 22 of the General Tax Act of 1935, which is effective January 1, 1936.
This Section is as follows: "Any person engaging in any occupation taxed by this Act who
claims to be exempted from the payment of taxes herein imposed, by virtue of the provisions of this Act or any other Act of this State, must first satisfy the State Revenue Commission that he is entitled to the exemptions claimed, and obtain from it a certificate of exemption before he shall be entitled to any exemption from any tax imposed by this Act. No person shall be exempt from any tax imposed who has more than one employee to assist in conducting such business. The holder of such certificate of exemption shall not be excused thereby from registering with the ordinary of each county wherein he does business or with the Comptroller General as required by this Act, but on registering he shall exhibit said- certificate of exemption to the ordinary or the Comptroller General. Any person who shall endeavor to escape the taxes imposed by this Act by virtue of a certificate of exemption obtained through fraud or by using a certificate of exemption to which he is not entitled shall be guilty of a misdemeanor, and on conviction shall be punished as prescribed in Section 27-2506 of the Code of 1983." There was also enacted at the 1985 session an Act approved March 15, 1935 (Georgia Laws 1935, p. 163), providing rules of eligibility for applicants for disabled veterans licenses. The Veterans License Statute was approved March 15, 1935, as stated, and the General Tax Act was approved March 28, 1935. The General Tax Act, being the latest statutory enactment on the subject, by necessary implication repeals and supersedes anything in the Veterans License Act in conflict therewith.

wo
Section 22 of the General Tax Act should be construed in the light of the Veterans License Act, however, since both relate to exemptions from taxation.
In my opinion the provisions of Section 22 that any person claiming such exemption "must first satisfy the State Revenue Commission that he is entitled to the exemption claimed," as applied to veterans, has reference to the Veterans License Act and the certificate of the State Revenue Commission which veterans are required to obtain by that Act. In other words, I think the certificate referred to by Section 22 of the General Tax Act is the certificate which may be issued to veterans by the State Revenue Commission under the Act approved March 15, 1935.
Section 22 provides that "the holder of such certificate of exemption shall not be excused thereby from registering with the ordinary of each county wherein he does business or with the Comptroller General as required by this Act, but on registering he shall exhibit said certificate of exemption to the ordinary or the Comptroller General."
In my opinion, this provision means that a person entitled to exemption shall register with the ordinary as required by Section 6 or with the Comptroller General as required by other provisions of the General Tax Act. However, instead of paying to the tax collector the amount of the tax, he may, upon so registering with the ordinary, exhibit to the ordinary his certificate of exemption issued by the State Revenue Commission in conformity with the Veterans Act of March 15, 1935, and the ordinary should enter this fact on the registration book in order that the tax collector may be advised of the existence of the exemption.
It is further provided by Section 22 that "no person shall be exempt from any tax imposed who has more than one employee to assist in conducting such business." This provision of the statute seems to me to plainly restrict the operation of the exemption afforded by the Act of March 15, 1935, to businesses operated by the veteran himself with the assistance of not more than one employee.
The Supreme Court has held in a number of cases that the exemption afforded by the law in favor of veterans is personal to the veteran, but that in the absence of statutory provision to the contrary, the certificate of exemption is effective to exempt the veteran from any business or occupation tax, so long as such business belongs to the veteran, and irrespective of whether it is being conducted by the veteran himself or by an employee of the veteran.
Section 22 of the Act approved March 28, 1935, in language which is plain, clear and unambiguous, makes a statutory change in the rule which had heretofore existed, and restricts the exemption to businesses or occupations conducted by the veteran with the assistance of not more than one employee. If the veteran has more than one employee, he is not entitled to the exemption, but is subject to the tax as if the certificate of exemption had not been issued.
You do not request an opinion as to the effect this provision will have upon the Act approved March 15, 1935. It is my opinion,

261
however, that it does not restrict the jurisdiction or authority of the State Revenue Commission to issue the certificates provided for by that Act. To avoid confusion, however, it might be advisable for the Commission to let each such certificate provide that it does not entitle the holder to pursue any occupation or business taxed by the General Tax Act of the State if he has more than one employee. . Necessarily the restriction imposed by this section limits the number of businesses or occupations which the holder of a certificate may engage in to such as he may conduct with the assistance of not more than one employee.
The question as to the effect of the quoted language of Section 22 upon municipal license taxes does not relate to any matter coming within the jurisdiction of your department. Neither does it relate to any matter directly affecting the State. I think, therefore, that it would be improper for me to undertake to rule on that question.
I am further of the opinion, as I have heretofore ruled on a number of occasions, that the holder of a certificate of exemption provided for by the Act approved March 15, 1935, is not entitled to exemption from professional taxes. The law authorizes the holder of these certificates to peddle or conduct business without paying license taxes. Since the practice of a profession is neither peddling nor the conduct of a business within the meaning of that term as used in the exemption law, the professional tax must be paid regardless of whether the practitioner holds such a certificate. This is plainly provided by the Georgia law which makes the validity of a professional license dependent upon the payment of the professional tax.

MALT BEVERAGES ACT-Violation of Act, how punishable

January 28, 1936

Ron. R. E. Matheson, Commissioner

State Revenue Commission

State Capitol

.

Dear Mr. Matheson:

I have you!' request for my opinion as to whether or not it is a

criminal offense for a person to engage in the sale of malt beverages

at retail without first procuring a license from the State Revenue

Commission, and whether or not such an offense falls within Section

8 of the malt beverages Act approved March 23, 1935.

Section 1 of the Act provides that the business of manufacturing,

distributing, selling, or otherwise dealing in malt beverages is a.

privilege under the laws of this State, and that the license fees and

excise tax thereafter specified in the Act shall be paid for the exercise

of such privilege.

Section 5 requires the payment by every retail dealer of an annual

State license tax or registration fee of $10.00, which is required to be

paid immediately upon such retail dealer entering the business.

Section 8 of the Act provides as follows:

262

"Be it further enacted by the authority aforesaid, that the fol-

lowing shall be offenses in this State, each punishable by a fine of

not less than one hundred ($100) dollars nor more than one

thousand ($1,000) dollars, or imprisonment for not more than

twelve (12) months, either or both within the discretion of the

court:

'

"(1) Manufacturing or selling of wholesale malt beverages

without having secured a license to engage in such business as

specified in this Act.

"(2) In the case of brewers, failing to report to the State

Revenue Commission on all sales of malt beverages made in this

State as specified in this Act.

"(3) Failing to report to the State Revenue Commission all

purchases for the purpose of resale in this State, and sales of malt

beverages purchased from persons other than brewers or wholesale

dealers licensed by this State as specified in this Act.

"(4) Failing to pay any tax imposed by this Act at the time

specified.

"(5) Carrying on the business of a brewer without having

filed a bond as hereinabove provided, or in the case of wholesale

dealers and retail dealers, selling in this State malt beverages

purchased from persons other than brewers or wholesale dealers

licensed by this State, without having filed a bond as provided by this Act.

"(6) Evading or violating or conspiring with others to evade or violate any provision of this Act.

"(7) Violating any rule of the State Revenue Commission

promulgated within the scope of this Act."

It will be noted that subdivision (4) of Section 8 expressly provides

that failure to pay "any tax imposed by this Act at the time speci-

fied," shall be an offense in this State and punishable by a fine of not

less than $100.

Since Section 5 requires every retail dealer to pay an annual State

license tax of $10.00, and requires the payment of such State license

tax immediately upon such retail dealer entering business, it seems

clear that the conduct of the business of selling malt beverages at

retail without the payment of the State license tax constitutes an

offense within the meaning of Section 8, and is punishable as therein

provided.

It will further be noted that Section 8 expressly provides that

"evading or violating or conspiring with others to evade or violate

any provision of this Act," shall be an offense, and punishable as

provided by Section 8.

Since Section 1 of the Act confers upon retail dealers the privilege

of selling malt beverages at retail it provides that the license taxes

referred to shall be paid for the exercise of such privilege, and since

Section 5 expressly provides that the retail license tax of $10.00

shall be paid immediately upon the retail dealer entering business,

it seems clear that the conduct of the business without paying such

tax would be a violation of the Act within the meaning of subdivision

263
(6) of Section 8 and punishable as provided by Section 8. This is true without any reference to the provisions of subsection (4) of Section 8.
Section 17 of the Act also provides as follows: "Any person who violates the provisions of this Act, and all
officers, directors, partners and employees of any corporation, partnership or firm that violates any of the provisions of this Act shall be guilty of a misdemeanor and punishable as such, unless otherwise provided herein." It will be noted that this Section provides that any person who violates any provision of the Act shall be punished as for a misdemeanor, unless otherwise provided in the Act. It seems clear to me that the offenses which are made misdemeanors and which are punishable as such, are the offenses for which no other punishment is expressly provided by Section 8. Whether Section 8 is sufficiently broad to cover every possible violation of the Act, so that there could be no offense under the Act to which Section 17 would apply, it is not necessary now to determine. It may be that Section 17 was inserted by the General Assembly out of an abundance of caution and so as to provide punishment for any possible violation of the Act. However this may be, there is no inconsistency between Sections 8 and 17, since Section 17, by its express terms, is limited in its application to those cases not covered by Section 8. From what is stated above I am of the opinion that one who carries on the business of selling malt beverages at retail without obtaining a license from the State Revenue Commission as provided by its rules and regulations, and paying the tax required by Section 5 is guilty of an offense within the meaning of Section 8, and punishable as provided by that Section.
TAXATION-What banks subject to income taxation
July 16, 1936 Hon. G. B. Carreker, Chairman State Revenue Commission State Capitol Dear Mr. Carreker:
I have your letter of the 15th inclosing communication from Hon. S. B. Lippitt of Albany, Georgia, in which he requests a ruling as to whether Albany Loan and Trust Company is subject to State income taxation.
I have given careful consideration to the facts stated by Mr. Lippitt and to the decision by the Supreme Court of Georgia in Bankers Saving & Loan Co. v. Gormley, 177 Ga. 334. In my opinion Albany Loan and Finance Company is not a bank doing a general banking business within the meaning of the Income Tax Act of 1931 as embodied in Code of 1933, Section 92-3101 (i).
Under the Constitution of Georgia all corporate powers and privileges to banking companies must be issued and granted by the Secre-

264
tary of State. Code of 1933, Section 2-1818. This constitutional provision is followed by Section 13-1901 of the Code of 1933 which provides the method whereby banks may be incorporated by the Secretary of State. It therefore necessarily follows that Albany Loan and Finance Company cannot be a legally incorporated bank under the Georgia law for the reason that the Superior Court was wholly without power to confer such corporate powers and privileges.
The opinion of the Supreme Court in the case referred to, held merely that the corporation then under consideration was doing a banking business, fell within the definition of the term "banking" embodied in the Act of 1919 creating the Banking Department, and was subject to the jurisdiction of the Superintendent of Banks. The court expressly declined to determine whether a charter granted by the Superior Court could give to a corporation the power to carry on a banking business, but held that the conclusion arrived at was authorized "even though the bank may not be conducting its business legally under any charter properly procured."
The decision seems to be based on the doctrine stated on page 339 of the opinion that:
"The defendant cannot set up its illegal acts to remove itself without the supervision of the Banking Department and the Superintendent of Banks." The court further said:
"It would be a strange omission in the general banking laws under consideration if a corporation should be permitted to carry on a banking business in violation of law, and yet not fall within the control or supervision of the Superintendent of Banks, under the powers, wide and presumably complete, which are conferred upon that official by the Act regulating banks." The decision of the Supreme Court in the case referred to goes no further than to hold that a corporation such as that described, conducting its business in the manner outlined in the opinion, is subject to the jurisdiction of the Banking Department even though it may have been illegally incorporated in the first instance.
The courts of this State have uniformly held that exemption from taxation must be strictly construed against one claiming the exemption. So construing the Income Tax Act, I am of the opinion that sub-division (i) of Section 92-3105 of the Code of 1933, which affords exemption from income taxation to "banks and trust companies doing a general banking business" has application only to banks which are incorporated according to law, and that it does not have application to a corporation chartered by the Superior Court, even though such a corporation may in fact be doing a general banking business. Such a corporation could be estopped to dispute its character as a bank, as was virtually held in the case referred to, but I do not think it can claim a privilege which the law confers only upon banking corporations regularly chartered.
The clause exempting banks from the operation of the Income Tax Act provides that it shall have application only to banks doing a general banking business. While this question is not free from

265
doubt, I think it applies only to banks which accept deposits subject to check and thus carry on a general banking business, and that it does not have application to banks which do such a limited banking business as is described by Mr. Lippitt. The words of the statute are to be construed in the light of their ordinary signification. So construing them, I think the phrase "doing a general banking business," means a banking corporation which generally carries on all of the proper functions of a bank.
TAXATION-Non-resident steamship company doing business in Georgia subject to income taxation by State
August 5, 1986
Hon. G. B. Carreker, Chairman State Revenue Commission State Capitol Dear Mr. Carreker:
I have your letter of August first inclosing correspondence with Merchants & Miners Transportation Company of Baltimore, with reference to its liability for taxation under the Georgia Income Tax Act of 1981.
As I understand the facts this corporation is engaged in the operation of steamships between Savannah and northern ports. It operates certain terminals on leased land. It maintains wharf equipment and a bank account in Georgia; the total value of its Georgia property as assessed for taxation being $65,158.00.
The company denies liability upon the following grounds: First, that the company is engaged wholly in interstate commerce. Second, that no part of its income is derived from services performed within the State. Third, that its records are kept in accordance with the standard classification of accounts prescribed by the Interstate Commerce Commission and shows no income from intrastate earnings. Fourth, its terminals at Savannah are leased property and used altogether in interstate commerce.
In my opinion the fact that this company is engaged solely in interstate commerce does not exempt it from the operation of the Georgia Income Tax Act. It has been held by the Supreme Court of the United States that a State may, without imposing a burden upon interstate commerce, tax the net income of a corporation doing business within a State, even though such net income may be derived in whole or in part from interstate commerce. United States Glue Co. v. Oak Creek, 247 U.S. 821; Shaffer v. Carter, 252 U.S. 87; Underwood Typewriter Co. v. Chamberlain, 254 U.S. 118. And see also Atlantic Coast Line Ry. Co. v. Daughton, 262 U. S. 418, where it was conceded by the railroad company "that taxation of net income of an interstate carrier does not violate the commerce clause."
I do not think it would be possible for this corporation to successfully contend that no part of its income is derived from service performed within the State, since it operates docks and wharves at

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Savannah, owns property at Savannah and necessarily carries on within the State of Georgia services to its patrons in connection with its interstate operations. The business of the company is undoubtedly unitary in its nature and its net income is derived from a series of transactions beginning with contracts of carriage made here and ending with delivery to consignees in other States, or beginning with contracts of carriage made in other states, and ending with deliveries to consignees in Georgia.
The fact that the records of the company, as kept in accordance with the standard classification of accounts prescribed by the Interstate Commerce Commission, show no net income from intrastate earnings, is not decisive. This is simply one factor of the apportionment formula prescribed by our statute. If there is no such income thus shown then the formula will be the proportion of the net income which the equal mileage proportion within the State of all gross operating revenue from interstate business of the company wherever done, bears to the total gross operating revenues from all business done by the company.
The fact that the company's terminals at Savannah may be located on leased property, and used altogether in the furtherance of its interstate business, is immaterial. The leasehold interest of the company is property within the meaning of our law. Neither does the fact, as contended by the company, that the total cost of construction of certain freight sheds had been depreciated off on its books, affect its tax liability, since the continued use of these sheds in the business of the company is conclusive proof of their existing value for that purpose.
From what has been said I am of the opinion that this company is subject to the Georgia Income Tax Act.
TAXATION-What disabled persons exempt
September 14, 1936 Hon. A. L. Crowe, Vice-Chairman State Revenue Commission State Capitol Dear Mr. Crowe:
I have your letter of the eleventh requesting my opinion with reference to exemptions from taxation of disabled persons, who are not veterans of any war.
Section 994 of the Code of 1910 provided as follows: "Blind persons, persons with one arm or one leg, and all other
persons having lost a limb or limbs, or deformed by nature, so as to render them unfit for manual labor, relieved by the proviso in paragraph one, section 917, (993 (4) of this Code) from the payment of taxes designated in that paragraph, shall be relieved also from the payment of the taxes designated in sections 942, 943, 944, 945, and 946, (Sections 993 (56), 993 (57), 993 (99)) and also from payment of any county or municipal license tax, if carried

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on and dependent upon the kinds of business designated therein; provided, that before any person shall be entitled to the benefit of any other exemptions provided for in this section, he shall go before the Ordinary of the county in which he proposes to carry on said business and make and file an affidavit setting forth the facts that he is entitled to such exemptions, and that he is the proprietor and owner of the business he proposes to conduct, and is conducting . the same for himself and not for others."
It will be noted that this Section provided that persons exempt under the proviso in paragraph one of Section 917 should also be exempt from the taxes imposed by Sections 942, 943, 944, 945 and 946. It will also be noted from an examination of Section 917 of the Code of 1910, which is the paragraph levying the poll tax, it provides that:
"This tax cannot be demanded of blind persons, nor persons who have lost a limb or limbs, or the use of the same, while actually engaged in the military service of the late Confederate States."
It will thus be seen that the only persons who were ever exempted by virtue of Section 994 were blind persons and disabled Confederate soldiers, and such persons were relieved from the tax on tin pin alleys, shooting galleries, skating rinks, gaming tables and machines operated for amusement only, and the tax on peddlers of medicine, jewelry, drugs, soaps, etc. These persons were not relieved from any other tax and were not relieved from the tax on peddlers of clocks, etc.
Section 994 of the Code of 1910 was omitted from the Code of 1933 upon the theory that it had been repealed by subsequent tax Acts which levied these taxes on all persons subject thereto without ex ception or exemption. The General Tax Act of 1935, which levied the poll tax now in force, excepts only
"Blind persons, or female inhabitants of the State who do not register for voting."
I am therefore of the opinion that Section 994 of the Code of 1910 is no longer of force in so far as it applies to State taxes and that the Ordinary is no longer authorized to issue certificates of exemption from State taxes to disabled persons, except in accordance with the Act of 1935 relating to the exemption of disabled veterans.
As a matter of fact the only taxes to which these exemptions ever applied were those which I have referred to above and there was never any provision of law authorizing the granting of such exemptions against general state license taxes.

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MOTOR VEHICLE5-Where classification changed on motor vehicle new license tag necessary
October 30, 1936 Mr. W. L. Joiner, Chief Clerk Motor Vehicle Division State Revenue Commission State Capitol Dear Mr. Joiner:
I have your letter of the 28th requesting my opinion as to the extent to which the owner of an automobile or motor truck may convert it from one style vehicle to another without being required to obtain a new license tag. You particularly desire to know whether a new license tag would be required where the owner of the vehicle takes out the motor and puts in a new one.
Section 68-101 of the Code of 1933 defines a motor vehicle as any vehicle except tractors propelled by power other than muscular power. The same section defines a truck as a motor vehicle used for the transportation of property. Section 68-201 requires the owner of every motor vehicle to register such vehicle with the State Revenue Commission and obtain a license to operate the same for the year. The Act of 1935 made no change in the existing law except with reference to the fees required to be paid. Under the Act of 1935 the registration fee is $3.00 for every motor vehicle subject to license, except motorcycles, irrespective of its classification.
The statute requires a license for the vehicle which is an instrumentality having numerous parts, consisting mainly of the motor, the body, and the chassis. The license when issued is for the entire vehicle and not for any particular portion thereof.
It must be presumed that in enacting the statute the General Assembly knew that motor vehicles must be repaired from time to time anrl that frequently the replacement of parts is necessary. I do not think it would be possible to read into the statute an intention to require a new license in the event any essential part of the vehicle should be replaced by a new part. I am therefore of the opinion that so long as the repairs or replacements do not substantially destroy the identity of the licensed vehicle it may be operated without a new license. While the statute requires the formal application for registration to contain a brief description of the vehicle to be registered, including its name, model, the name of the manufacturer, its motor number, its shipping weight, carrying capacity and such other information as the Commission may require, I do not think this requirement of the statute can be taken to evidence a legislative intent that any particular fact of description required to be stated in the application shall control the identity of the licensed vehicle. As stated, it is my opinion that the license originally issued may be used so long as the identity of the vehicle is not substantially destroyed by repairs or replacements. I do not think the installation of a new motor would require a new license. I think the Commission would be authorized, by regulation, to require the owner of the vehicle to furnish to the Commission the information as to the change in

269
motor number if there should be one, but the fact of the change would not, in my opinion, substantially destroy the identity of the vehicle so as to require a new license.
What has been stated would not have application, however, where the repairs or replacements are sufficient to change the classification of the vehicle. In other words, I am of the opinion that if a vehicle
a licensed as a passenger carrying vehicle should be changed by altera-
tions into a truck, it would be necessary ior the owner to obtain new license for a truck.
INCOl\IE TAXES-How collected
December 17, 1936 Hon. J. A. Smith, Chief Clerk State Revenue Commission State Capitol Dear Mr. Smith:
I acknowledge receipt of your letter of December 16th inclosing three fi. fas., against A. W. Braden, Macon, Georgia, for income taxes due for the years 193~, 1933 and 1934.
Each of these fi. fas., has endorsed thereon entries of nulla bona made by the Deputy Sheriff of Bibb County. You state that the debtor is employed by E. R. Squibb Company, which has an office in Atlanta, and you suggest a garnishment proceeding for the collection of the amount due on these fi. fas.
Garnishment proceedings are purely statutory and can be extended only to those cases where the statute provides such remedy. The courts have no discretion to enlarge the remedy or hold under it either persons or property not made subject to the processes by some statutory enactment. Davis v. Millen, 111 Ga. 45~.
In the cases cited the Supreme Court of this State quoted with approval a statement contained in Rood on Garnishment as follows:
"Writs of garnishment can issue only in the cases enumerated in the statute. To entitle the plaintiff to the benefit he claims, he must show that his case is one clearly contemplated by the statute, for the remedy cannot be extended to doubtful cases." I can find only four cases in which a garnishment proceeding can be instituted and maintained in this State. They may be stated as follows: (1) Where there is a suit pending, Code 46-101; (~)Where a judgment shall have been obtained, Code Section 46-101; (This means a judgment rendered by a court having jurisdiction and not an execution issued summarily by an administrative board. Davis v. Millen, 111 Ga. 45~). (3) Where a Tax Collector has issued an execution and after failing to find property of the defendant in fi. fa. upon which a levy can be made and after having made an endorsement to that effect on the execution, Code Section 9~-7501 and Section 9~-7502; and (4) Where the Treasurer or other collecting officer of a municipality authorized to collect municipal taxes has a municipal tax fi. fa. in his hands and, after having failed to find

270
property upon which to levy the same, endorses an entry to that effect thereon, Code Section 92-4301 and Section 92-4302.
Sections 92-4301 and 92-4302 indicate that the procedure therein authorized applies and is limited to the collection of municipal tax fi. fas., and Sections 92-7501 and 92-7502 indicate that the procedure applies and is limited to the collection of taxes by a County Tax Collector.
I can find no authority extending the provisions of these sections or other law to a tax fi. fa. issued by the State Revenue Commission and I am, therefore, of the opinion that a garnishment proceeding cannot be based on such a tax fi. fa.
Under the provisions of Section 92-3311; a suit might be instituted on the tax claim against the taxpayer if the Governor so directs, and ordinarily a garnishment proceeding can be instituted on a pending suit, but in this connection your attention is called to the fact that under the Act of 1933 a summons of garnishment cannot be issued to impound the daily, weekly or monthly wages of any person in this State until after final judgment shall have been had against the defendant, and even pursuing this remedy a summons of garnishment would not be available until after the judgment is entered if the fund sought to be reached by the garnishment is earned by the taxpayer as daily, weekly or monthly wages.
The fi. fas., in question are being returned to you herewith.
PROFESSIONAL TAXATION-Persons subject to tax even though on salary
May 23,1936 Hon. G. B. Carreker Comptroller General State Capitol 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.

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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.

PROFESSIONAL TAXES-Interpretation of law taxing accountants, and what accountants are subject to the tax

November 19, 1936

Hon. A. L. Crowe, Vice-Chairman

State Revenue Commission

State Capitol

Dear :Mr. Crowe:

I have your communication with a letter from Mr. T. H. Watkins,

a certified public accountant, \\Titten from West Point, Georgia, and

another communication from Mr. W. Y. Smith who is not a certified

public accountant but an accountant employed by another certified

public accountant. You desire an opinion as to the professional tax

required to be paid by each of these gentlemen.

Paragraph 3 of the General Tax Act of 1935 provides for the levy

of a special tax as follows:

"Upon each and every . . . . public accountant . . .. charg-

ing for their services as such, $15.00, and the validity of their

licenses is made contingent upon the payment of the tax herein

provided."

Since 1908 the State has had a State Board of Examiners of Public

Accountants, and our law has made provision for licensing certified

public accountants. It is manifest, therefore, that the General

Assembly did not intend to limit the application of the quoted pro-

vision of the General Tax Act of 1935 to certified public accountants,

but intended to require the payment of the special tax by every

public accountant engaged in the practice of his profession and

charging for his services as such whether or not he holds a license as.

a certified public accountant.

An accountant has been defined as one whose vocation or function

is to keep or adjust accounts. 1 C. J. 587. In this sense one who is a

mere bookkeeper is an accountant. It is manifest, however, that

the General Tax Act did not intend to levy a tax upon bookkeepers.

A certified public accountant has been defined as,

"A term applied to trained accountants who examine the books

of accounts of corporations and others and report upon them."

Bovier's L. D.; 11 C. J. 78.

.

If the General Tax Act had required the payment of the special

tax by every accountant, there would be no difficulty in determining

the class of persons to which the law applies. However the language

of the statute defining the taxed class as "public" accountants

272
necessarily evidences a legislative intent to tax only those accountants who offer their services to the general public, and charge for such services.
There is nothing in our statute which limits to any designated class of persons the right to practice accountancy. The only provision of our law is that no person except a certified public accountant may use such designation, or the abbreviation thereof, or hold himself out as a certified public accountant. Any citizen who may desire to do so may practice accountancy, either for the public generally, or for one employer, but he cannot style himself as a certified public accountant unless he has met the requirements of the law regulating that profession..
From what has been said, it is my opinion that an accountant, whether a certified public accountant or not, who performs services as an accountant for a single employer, and does not offer his services to the public generally, is not a public accountant within the meaning of the tax Act. I think this rule will hold where such an accountant is employed by a certified public accountant, or a firm of certified public accountants and the employer offers his (the employer's) services to the public generally. In such case the employer is required to pay the tax but his employees who do not offer their own services to the public are not subject to the tax. In such case the employee is merely the instrumentality through which a public accountant performs the services he offers to the public generally.
TAXATION-Building and Loan Association presidents
October 27, 1936 Hon. A. L. Crowe, Vice-Chairman State Revenue Commission State Capitol Dear Mr. Crowe:
'Vith further reference to my letter to you of September 14, 1936, with reference to the liability of Mr. George W. West, President of the First Federal Savings and Loan Association, for the tax imposed by Paragraph 4, Section 2, of the General Tax Act upon the presidents of various corporations, including building and loan associations, I beg to advise that I am in receipt of an additional affi.davit from the Secretary of this Association called for by my letter of September 14 and of a copy of the charter of this Association.
The paragraph of the General Tax Act referred to provides that the tax therein imposed
"Shall not apply to local building and loan associations fostered as a civic undertaking and not conducted for financial gain or profit." The charter of this corporation recites that it is organized for the .purpose of promoting thrift and home ownership by providing a convenient and safe method for local citizens and others to save and invest money and by providing for sound and economical financing

278

of homes. However, the charter also provides for the payment of

dividends on shares in the corporation and for the ownership of

stock by persons who may desire to purchase the same, such stock

being subject to repurchase by the Association in accordance with

the terms of the charter. The corporation is authorized by its charter

to make such charges for the use of its money as are permitted by

the special or general laws of the State, not exceeding the rates of

interest permitted under Sections 4 and 5 of the Federal Home Loan

Bank Act, and that loans on the sole security of the shares may be

made in such form as the Board of Directors may determine and at

an interest rate legal within the State.

It appears from the affidavit of the Secretary of this corporation

that on September 30, 1936, it had 1218 shareholders owning capital

stock of the total value of $1,441,774.56; and that of these share-

holders 1137 were not borrowers from the Association and that those

who were not borrowers had paid on their shares the sum of

$1,408,528.04. It thus appears practically the entire capital stock

of the Association is owned by persons who are not borrowers and

who have purchased the capital stock as investments. It further

appears that periodically since its organization the Association has

paid to these shareholders dividends never less than four per cent.

per annum on the amount actually paid in by them on their shares

and that a dividend of two per cent. was paid June 30, 1936, which

represented the earnings on the shares for the first six months of

1936. It further appears that there is nothing in the by-laws or

charter of the corporation limiting the class of persons who may own

stock in the Association.

Under these facts and circumstances I am of the opinion that this

corporation is operated and conducted for financial gain or profit and

cannot be said to be "fostered as a civic undertaking and not con-

ducted for financial gain or profit," within the meaning of the General

Tax Act.

.

I am of the opinion that Mr. West, the President of this Associa-

tion, is subject to the tax imposed by the General Tax Act.

TAXATION-Occupation tax on radio dealers, automobile accesso-. ries, etc.
February 14, 1936 Hon. R. E. Matheson, Commissioner State Revenue Commission State Capitol Dear Mr. Matheson:
I have your letter of February tenth requesting my opinion as to the proper construction of Paragraphs 13, 13A, and 79 of the General Tax Act of 1935.
These Paragraphs of the General Tax Act are as follows: "13. Automobile Tires, Accessories, Automobile Radios or
Automobile Parts (Wholesale). Upon every wholesale dealer in

274
Automobile tires, automobile accessories, automobile radios or automobile parts of any kind whatsoever, the sum of $100.00 for each place of business.
"13A. Automobile Radios Wholesale. Upon every wholesale dealer in automobile radios of any kind whatsoever the sum of twenty-five ($25.00) dollars for each place of business, provided that where license as specified in Paragraph 13 is paid, it will not be necessary to pay the license specified in this section.
"79. Musical instruments, Graphophones, Organs, Phonographs, Pianos, and Victrolas, Radios or Radio Supplies, Domestic Ice :Machines. Upon each person, firm or corporation engaged in the business of selling or renting as agents or dealers, any of the above or similar instruments, in or near cities of more than 50,000 inhabitants, $50.00; in or near cities of from 25,000 to 50,000 inhabitants, $25.00; in or near cities of from 10,000 to 25,000 inhabitants, $12.50; in or near cities or towns of less than 10,000 inhabitants, $5.00 for each place of business. Provided the word "near," as used in this section is defined to mean within a radius of three miles of the incorporate limits of said city or town referred to in this paragraph." It is my opinion that Paragraph 13 authorizes the sale of automobile tires and accessories, including automobile radios, at wholesale, upon the payment of a tax of $100.00 for each place of business. Paragraph 13A authorizes the sale, at wholesale all autombile radios, upon the payment of a tax of $25.00 for each place of business. If a wholesale dealer is engaged in the sale of automobile radios, but is not engaged in the sale of other automobile accessories, he is required to pay only one tax of $25.00. If he is engaged in the sale of automobile accessories other than radios, he is required to pay a tax of $100.00 for each place of business, and this authorizes the wholesale sale of automobile radios without the payment of an additional tax. Under Paragraph 79 of the General Tax Act both wholesale and retail dealers in the instruments referred to are required to pay a tax according to the scale fixed. It is my opinion, however, that Paragraph 79 has no application to persons selling automobile radios, and that an automobile radio is not a radio within the meaning of Paragraph 79, but is to be classed as an automobile accessory under Paragraphs 13, 13A and 14.
It will be noted that Paragraph 14 requires every retail dealer in automobile accessories, including automobile radios, to pay a tax of $10.00 for each place of business, irrespective of the size of the city or town in which the business is conducted.
Paragraph 79 requires a payment of a license fee of only $5.00 in cities of less than 10,000 inhabitants. To construe Paragraph 79 as applying to automobile radios, would necessarily bring it into conflict with Paragraphs 13A and 14. In other words, if Paragraph 79 should be construed to apply to wholesale or retail dealers in auto-

275
mobile radios, such a dealer could carry on the business in a city of less than 10,000 inhabitants upon the payment of $5.00 tax, whereas, 13A requires the payment of $25.00 if the business is wholesale, and Paragraph 14 requires the payment of $10.00 if the business is retail.
TAXATION-Construction of law exempting veterans from payment of certain occupation taxes
November 29, 1935
Hon. R. E. Matheson State Revenue Commissioner State Capitol Dear 1.\-Ir. Matheson:
I have your letter of the 27th inclosing a communication from Hon. John L. Cabell, Tax Collector of Chatham County, with reference to Section 22 of the General Tax Act of 1935, which is effective January 1, 1936.
This Section is as follows: "Any person engaging in any occupation taxed by this Act who
claims to be exempted from the payment of taxes herein imposed, by virtue of the provisions of this Act or any other Act of this State, must first satisfy the State Revenue Commission that he is entitled to the exemptions claimed, and obtain from it a certificate of exemption before he shall be entitled to any exemption from any tax imposed by this Act. No person shall be exempt from any tax imposed who has more than one employee to assist in conducting such business. The holder of such certificate of exemption shall not be excused thereby from registering with the Ordinary of each county wherein he does business or with the Comptroller General as required by this Act, but on registering he shall exhibit said certificate of exemption to the Ordinary or the Comptroller General. Any person who shall endeavor to escape the taxes imposed by this Act by virtue of a certificate of exemption obtained through fraud or by using a certificate of exemption to which he is not entitled shall be guilty of a misdemeanor, and on conviction shall be punished as prescribed in Section 27-2506 of the Code of 1933." There was also enacted at the 1935 session an Act approved March 15, 1935 (Georgia Laws 1935, p. 163), providing rules of eligibility for applicants for disabled veterans licenses. The Veterans License statute was approved March 15, 1935, as stated, and the General Tax Act was approved March 28, 1935. The General Tax Act, being the latest statutory enactment on the subject, by necessary implication repeals and supersedes anything in the Veterans License Act in conflict therewith. Section 22 of the General Tax Act should be construed in the light of the Veterans License Act, however, since both relate to exemptions from taxation.

276
In my opinion the provisions of Section 22 that any person claiming such exemption "must first satisfy the State Revenue Commission that he is entitled to the exemption claimed," as applied to veterans, has reference to the Veterans License Act and the certificate of the State Revenue Commission which veterans are required to obtain by that Act. In other words, I think the certificate referred to by Section 22 of the General Tax Act is the certificate which may be issued to veterans by the State Revenue Commission under the Act approved March 15, 1935.
Section 22 provides that "the holder of such certificate of exemption shall not be excused thereby from registering with the Ordinary of each county wherein he does business or with the Comptroller General as required by this Act, but on registering he shall exhibit said certificate of exemption to the Ordinary or the Comptroller General."
In my opinion, this provision means that a person entitled to exemption shall register with the Ordinary as required by Section 6 or with the Comptroller General as required by other provisions of the General Tax Act. However, instead of paying to the tax collector the amount of the tax, he may, upon so registering with the Ordinary, exhibit to the Ordinary his certificate of exemption issued by the State Revenue Commission in conformity with the Veterans Act of March 15, 1935, and the Ordinary should enter this fact on the registration book in order that the tax collector may be advised of the existence of the exemption.
It is further provided by Section 22 that "no person shall be exempt from any tax imposed who has more than one employee to assist in conducting such business." This provision of the statute seems to me to plainly restrict the operation of the exemption afforded by the Act of March 15, 1935, to businesses operated by the veteran himself with the assistance of not more than one employee.
The Supreme Court has held in a number of cases, that the exemption afforded by the law in favor of veterans is personal to the veteran, but that in the absence of statutory provisions to the contrary, the certificate of exemption is effective to exempt the veteran from any business or occupation tax, so long as such business belongs to the veteran, and irrespective of whether it is being conducted by the veteran himself or by an employee of the veteran.
Section 22 of the Act approved March 28, 1935, in language which is plain, clear and unambiguous, makes a statutory change in the rule which had heretofore existed, and restricts the exemption to businesses or occupations conducted by the veteran with the assistance of not more than one employee. If the veteran has more than one employee, he is not entitled to the exemption, but is subject to the tax as if the certificate of exemption had not been issued.
You do not request an opinion as to the effect this provision will have upon the Act approved March 15, 1935. It is my opinion, however, that it does not restrict the jurisdiction or authority of the State Revenue Commission to issue the certificates provided for by that Act. To avoid confusion, however, it might be advisable for

IJ.77

the Commission to let each such certificate provide that it does not

entitle the holder to pursue any occupation or business taxed by the

General Tax Act of the State if he has more than one employee.

Necessarily the restriction imposed by this section limits the number

of businesses or occupations which the holder of a certificate may

engage in to such as he may conduct with the assistance of not more

than one employee.

.

The question as to the effect of the quoted language of Section IJ.2

upon municipal license taxes does not relate to any matter coming

within the jurisdiction of your department. Neither does it relate to

any matter directly affecting the State. I think, therefore, that it

would be improper for me to undertake to rule on that question.

I am further of the opinion, as I have heretofore ruled on a number

of occasions, that the holder of a certificate of exemption provided

for by the Act approved March 15, 1935, is not entitled to exemption

from professional taxes. The law authorizes the holder of these

certificates to peddle or conduct business without paying license

taxes. Since the practice of a profession is neither peddling nor the

conduct of a business within the meaning of that term as used in the

exemption law, the professional tax must be paid regardless of wheth-

er the practitioner holds such a certificate. This is plainly provided

by the Georgia Law which makes the validity of a professional

license dependent upon payment of the professional tax.

TAXATION-The RFC Mortgage Company subject to State tax on foreign corporations
April 22, 1935 Hon. Edgar B. Dunlap, Agency Counsel Reconstruction Finance Corporation Atlanta, Georgia Dear Mr. Dunlap:
I have yours of the 15th instant, requesting an opinion as to whether or not the RFC Mortgage Company is subject to the foreign tax imposed upon foreign corporations under Section 92-403 of the Code of Georgia of 1933.
You state in your letter that this company was organized by the Reconstruction Finance Corporation, chartered in the State of Maryland, and that the entire capital stock of the RFC Mortgage Company is owned by the Reconstruction Finance Corporation, and that the entire capital stock of the Reconstruction Finance Corporation is, in turn, owned by the United States Government. You further state that the business of the RFC Mortgage Company is that of a "general mortgage loan corporation."
In response to the letter of Mr. Robert A. Cooper, General Counsel of the Commodity Credit Corporation, under date of December 13, 1933, addressed to the Secretary of State, requesting a ruling from the Attorney General as to what extent it is necessary for the Commodity Credit Corporation to comply with the foreign corporation

278
laws of Georgia, it was said that the "Commodity Credit Corporation is entitled to do business in the State of Georgia on the same basis of the other foreign corporations. The only thing necessary for this corporation to do is to comply with Sections 2208, 2209, and 2210 of our Civil Code." (Now Sections 22-1701, 22-1703, and 22-1704 of the Code of Georgia of 1933. These sections provide:
"22-1701. The Secretary of State shall be ex-officio corporation commissioner of this State, and shall be charged with the execution of the duties hereinafter enumerated."
"22-1703. It is the duty of all corporations, except banks doing business in this State, whether incorporated by the legislature of this State, by the Secretary of State or by the judgment of the superior court, or of any foreign corporation doing business in this State, to make a return, annually, through the president or general manager on or by the first day of November embracing the following information:
1. The name of the company. 2. When incorporated. 3. By what authority incorporated. 4. Where incorporated. 5. The amount of capital stock of said corporation. 6. The business of the corporation. 7. Its principal office."
"22-1704. At the time of making said return the officer making the same shall remit a fee of one dollar for the first year, and annually thereafter fifty cents to cover the cost of recording the return."
It was further stated in this opinion that such corporations were not subject to the corporation tax required of foreign corporations. Upon more mature thought upon this latter question, I am now of the opinion that this statement was in error. I am now of the firm opinion that both the Commodity Credit Corporation and the RFC Mortgage Company are subject to the tax imposed upon foreign corporations.
Your letter clearly states that the RFC Mortgage Company is a corporation chartered in Maryland and desires to do business in this State of "a general mortgage loan corporation." Under this statement of facts, I think it is indisputable that this corporation has passed beyond the pale of exemption from taxation by the State afforded all governmental agencies or instrumentalities under the age-old theory of reciprocal immunity as enunciated in McCullough v. Maryland. The fact that all of the stock in this corporation is owned by the RFC and that, in turn, the United States Government owns all of the stock in the RFC does not alter the case. The proper criterion, it occurs to me, in determining the taxability of this corporation by the State of Georgia is whether this corporation is a foreign corporation, and whether it is engaged in a private, as contradistinguished from a governmental function. When the Federal Government, under the guise of a corporate charter, carries on a

279
"general mortgage loan" business, I think it is acting in a private and not a governmental capacity: I am, therefore, forced to the conclusion that the RFC Mortgage Company is subject to the tax on foreign corporations.
TAXATION-Georgia Rural Rehabilitation Corporation subject to provisions of Paragraph 44 of the General Tax Act
April 29, 1935 Hon. W. B. Harrison Comptroller General State Capitol Dear Mr. Harrison:
I have your letter of the 29th inclosing a copy of the charter of the Georgia Rural Rehabilitation Corporation, together with a letter from Wm. J. Davis, Jr., their attorney, and requesting my opinion as to whether or not this corporation is subject to taxation under Paragraph 44 of the General Tax Act.
This is a Georgia corporation holding a charter granted by the Superior Court of Fulton County under date of October 1, 1934. Having been incorporated under and by virtue of the laws of the State of Georgia, it is subject to those laws, irrespective of the official character of the person who applied for the charter.
The General Tax Act of Georgia (Code of 1933, Section 92-2401) provides for the payment of domestic corporation taxes by all corporations incorporated under the laws of Georgia "except those not organized for pecuniary gain or profit."
This corporation, according to the terms of its charter, has exceedingly broad powers whereby it may carry on almost every conceivable sort of business which a private corporation chartered by the superior court may be authorized to carry on.
While it is provided by the cha.rter that the benefits of the corporation shall never accrue to the benefit of its members, stockholders, etc., but shall always be used to maintain and promote the rural rehabilitation program of Georgia, it is further provided that the corporation may liquidate its business at any time as the Board of Directors may elect and in the event of its dissolution its property shall be sold and disposed of, its debts paid, debts due the corporation collected, and the balance of funds on hand disposed of as the Board of Directors and stockholders shall direct.
In my opinion this corporation was necessarily organized for pecuniary gain and profit and cannot under its charter, bring itself within the exception provided by the General Tax Act. I must hold, therefore, that it is subject to the corporation tax.

280
TAXATION-All corporations organized for pecuniary gain ~nd profit subject to corporation tax
December 11, 1935
Hon. R. E. Matheson, Commissioner State Revenue Commission State Capitol
Dear 1\Ir. Matheson:
I have your letter of the 7th inclosing a communication from 1\Ir. Lowrey Stone, Attorney for the Kestler Liquidating Company, Damascus, Georgia, in which he expresses the opinion that this concern is not subject to the corporation tax.
I cannot agree with Mr. Stone's opinion. Under the facts he relates, the corporation was plainly organized for pecuniary gain in the sense in which that term is employed by the General Tax Act. This term is used by the General Tax Act to distinguish corporations organized for pecuniary gain from corporations organized for charitable purposes. Certainly, it cannot be said that the corporation referred to by Mr. Stone is a charitable corporation.
A corporation is organized for pecuniary gain, in my opinion, when it is organized to carry on commercial transactions for the benefit of its stockholders, or others to whom its stockholders may be obligated. Not only does it appear that the corporation is carrying on such transactionsj but its charter expressly provides that it is organized for pecuniary gain. The fact that the corporation may not make any money or that at the time of its creation it was not reasonably probable that it would make any money, does not change its status, if it was in fact organized for commercial purposes.
The purpose for which the corporation is organized is to be determined from an examination of its charter. Under the amendment to the General Tax Act, in my opinion, the corporation tax law now imposes a franchise or privilege tax, and not a mere occupation tax. I have not seen the charter of this corporation. However, I know 1\Ir. Stone is a good lawyer. If he obtained the charter, I am quite certain he did not limit the authority of the corporation to the special purpose referred to in his letter, but made the charter broad enough to enable the corporation to carry on any limited business activity. So long as the corporation holds this franchise, and is entitled to exercise the privileges granted by its charter, it is subject to the corporation tax, whether it does in fact exercise the privilege or not and whether its operations actually result in profit to its stockholders.

281
TAXATION-Foreign corporation engaged exclusively in interstate commerce not subject to corporation tax
May 18,1986 Hon. G. B. Carreker Comptroller General State Capitol Dear Mr. Carreker:
Mr. Thrasher of your office sent me a memorandum with refer ence to the Southern Natural Gas Company, and requested my opinion as to whether that corporation is liable for the tax imposed upon foreign corporations by Paragraph 44 of the General Tax Act.
As I understand the facts, the Southern Natural Gas Company is a foreign corporation and is engaged in the business of selling natural gas to distributing companies in this State. This natural gas is conveyed from the gas fields through pipe lines which run directly from the gas fields in another State to and into this State. The natural gas is conveyed by means of pipe lines and its movement is facilitated by pumping stations located at intervals along the pipe lines. The gas sold by this corporation is delivered at the pipe line to the distributor. The company owns the pipe line and certain easements in land for the right of way for the pipe line, pumping stations, and machinery located in this State, all of which is employed exclusively in the transportation of the gas through the pipe line from the gas field to the distributors in Georgia. All of the property actually located in the State is returned for ad valorem taxation.
I have gone very carefully into the question, and have read the applicable decisions of the Supreme Court of the United States. The General Tax Act of Georgia imposes "an annual or occupation tax for the privilege of carrying on its business within this State" upon all foreign corporations incorporated or organized under the laws of any other State "and doing business or owning property in this State;"
In the case of Ozark Pipe Line Corp. v. Monier, ~66 U. S. 555, 69 L. Ed. 439, the Supreme Court of the United States held:
"The operation of pipe lines across a State to carry crude oil from one State to another, is interstate commerce which is beyond the power of the State to tax."
"The maintenance by a foreign corporation operating a pipe line to carry crude oil in interstate commerce across a State, of an office within its limits, where its accounts are kept, and from which it purchases supplies, employs labor, and enters into contracts, and of pumping stations to accelerate the passage of oil, and of automobiles and other property used exclusively in the prosecution of its interstate business, does not render it subject to payment of an annual license tax to the State." In that case it was held that the annual franchise tax imposed by the Missouri Revenue statute could not be enforced against the pipe line company. The Missouri statute was practically identical with the Georgia statute.

282
In Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 68 L. Ed. 1027, the Supreme Court held:
"The transportation of gas through pipe lines from one State to another, for sale to distributing companies, is interstate commerce, so that the State authorities have no control over the rates to be charged for it, and the fact that Congress has taken no action in the matter is immaterial." In the case of Ohio Gas Company v. Tax Commission, 283 U.S. 465, 65 L. Ed. 1171, the Supreme Court of the United States outlined the distinction between a natural gas company, which conveyed the gas from the State of production into another State for delivery to distributors, and the business of so conveying the gas for direct distribution to consumers and held that business of the first class was wholly interstate and not subject to regulation or taxation by the State. The court held that the gas was not deprived of its interstate character until it passed from the distribution lines into the supply mains, thereupon being necessarily relieved of any of the pressure put upon it at the stations of the producing company. The court analogized the treatment and division of the large compressed volume of gas to the breaking of an original package after shipment in interstate commerce. From the decisions referred to, I am of the opinion that this company is engaged exclusively in interstate commerce. The information I have indicates that all of the property owned by it in Georgia is employed exclusively in the interstate transportation of gas, and that all of the business carried on by it in the State is incidental to that movement. I am, therefore, of the opinion that this company is not subject to the tax imposed by Paragraph 44 of the General Tax Act. I am quite sure the Federal courts would so hold.

TAXATION-Corporation tax of domesticated foreign corporations

August 29, 1936

Hon. A. L. Crowe, Commissioner

State Revenue Commission

State Capitol

My dear Mr. Crowe:

I am in receipt of your letter of the 25th with copy of letter from

Messrs. Harold Hirsch and Marion Smith with reference to the

corporation tax of the Republic Stove Company.

I also have a file of correspondence relating to a number of other

corporations similarly situated.





As I understand the facts each of these corporations is a foreign

corporation domesticated in the State of Georgia.

The General Tax Act of 1927, as amended by the Act of 1931,

(Georgia Laws 1931, p. 76) required the payment of certain annual

license or occupation taxes of "all corporations incorporated under

the laws of Georgia, except those that are not organized for pecu-

niary gain or profit." The same Act also required the payment of

283
certain license or occupation taxes of "all corporations incorporated or organized under the laws of any other State . . . . and doing business or owning property in this State."
Without going into a detailed statement of the purpose and effect of our Domestication Statute of 1926, I will state that in my opinion the General Tax Act of 1927 as amended does not require the payment of these occupation or license taxes by a domesticated foreign corporation unless such corporation owns property or does business in the State of Georgia. While such a corporation may hold a certificate of domestication in the State issued pursuant to our Domestication Statute, I do not think a strict construction of the taxing statute, which rule must be applied, would permit a holding that the certificate of domestication makes the corporation one "incorporated under the laws of Georgia," within the meaning of the Amendatory Act of 1931 so as to subject it to the corporation tax irrespective of whether it owns property or does business in Georgia.
The rule is different under the General Tax Act of 1935, which expressly requires the payment of these taxes by domesticated foreign corporations. I understand, however, that there is no dispute as to the liability of these corporations for this tax for the year 1936.
OCCUPATION TAX-Qne packing or shipping shrimp or oysters, subject to taxation
March 4, 1985 Hon. R. E. Matheson
State Revenue Commissioner State Capitol Dear 1\ir. Matheson:
I have yours of recent date, inclosing a copy of a letter from Mr. W. L. Thornton of February 25, 1935, requesting an opinion as to the liability of the Atlantic Sea Food Company, Darien, Georgia, for the tax as imposed under Paragraph 54 of the General Tax Act:
"Upon each person, firm, or corporation engaged in the business. of packing or shipping oysters, shrimp, or fish $50.00 for each county." In Mr. Thornton's letter, it is stated that Mr. Pleazer, Manager of the Atlantic Sea Food Company, thinks his company is not subject to this tax due to the fact that this company does not ship or pack fish, but it is further stated that the company does can and ship shrimp. It is my opinion that under Paragraph 54 of the General Tax Act any person or corporation who either packs or ships shrimp, or who either packs or ships oysters, or who either packs or ships fish, is subject to the tax. Of course, a person paying the tax would have a right to pack or ship oysters, shrimp and fish. Liability for the tax attaches when a person, firm or corporation either packs or ships any or all of the products named in the paragraph.

284
TAXATION-Occupation tax on dealers in ice cream
February 24, 1936
Hon. B. E. Thrasher, Chief Clerk Office of Comptroller General State Capitol
Dear 1\-Ir. Thrasher:
I have your letter of the nineteenth inclosing copy of a letter from Hon. John L. Cabell, Tax Collector of Chatham County, together with copy of a letter from Hon. Lewis A. Mills to Mr. Cabell with reference to tax alleged to be due by Foremost Dairies, Inc., under Paragraph 57 of the General Tax Act of 1929, as amended.
This Paragraph provides as follows:
"Upon each person, firm, or corporation manufacturing ice cream or selling same at wholesale, in or near cities of more than 50,000 inhabitants, $100.00; in or near cities from 20,000 to 50,000 inhabitants, $75.00; in or near cities from 10,000 to 20,000 inhabitants, $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, is defined to mean within a radius of three miles of the incorporate limits of cities in this section referred to."
Mr. Mills contends that Foremost Dairies, Inc. pays a tax of $100.00 in Fulton County and therefore is not subject to any additional tax in Chatham County. His contention is that the payment of one tax authorizes the company to carry on the business of manufacturing or selling ice cream at wholesale over the entire State.
In my opinion it was the purpose of the General Assembly to require the payment of the specified tax for each city in or near which the business was carried on. The basis of classification is the population of the town or city, and the statute requires the payment of the tax on that basis of classification according to the method of conducting the business. The statute does not require the payment of a tax for each place of business. I am, therefore, of the opinion that the payment of one tax will authorize the conduct of the business at any location, or more than one location, in or near the city or town on account of which the payment is made, or within a radius of three miles of such city or town. It would not authorize the conduct of the business, however, at any other location.
I am of the opinion that the payment of the' tax of $100.00 for the privilege of manufacturing and selling ice cream at wholesale in or near the City of Atlanta does not relieve the company from paying a tax for the privilege of conducting the business in or near the City of Savannah.

TAXATION-What constitutes a lumber dealer

February 10, 1986

Hon. R. E. Matheson

State Revenue Commission

State Capitol

Dear Mr. Matheson:

I have yours of the 4th instant, inclosing copy of the letter of Mr.

W. L. Thornton under date of February 3rd, requesting an opinion

as to the liability of the Edward Comstock Company of Rome,

New York, for the tax as a lumber dealer of Chatham County, im-

posed under Paragraph 66 of the General Tax Act.



Mr. Thornton states in his letter that this concern claims that it is

exempt from the payment of this tax because it is doing an inter-

state business, and sells nothing in Georgia; that it buys crossties and

stores them on property owned by the Ocean Steamship Company

and keeps a large stock of crossties on hand at their yards at all

times, which crossties are ultimately shipped, mostly to northern

railroads.

Paragraph 66 of the General Tax Act imposes an occupation tax

upon manufacturers of, wholesale and retail dealers in forest products,

timber, lumber, etc. This tax operates only upon transactions oc-

curring within this State, and is purely a tax upon the privilege of

engaging in internal commerce. The occupation of manufacturing

or dealing in forest products is not in and of itself interstate com-

merce. Therefore, the occupation tax imposed under Paragraph 66,

if it affects interstate commerce at all, does so only indirectly and

only incidentally. It has been held that the exaction of a license fee

for the privilege of purchasing goods to be shipped to another State is

not unconstitutional as a tax upon interstate commerce, since at

most it is simply a tax on the goods at the time of their purchase, at

which time they are subject to State taxes, and so remain until the

business of transportation has actually commenced.

The fact that the crossties which are purchased by the Comstock

Company will ultimately reach the channels of interstate com-

merce, does not render the tax as imposed under Paragraph 66 in-

valid, as being an attempt by the State to regulate commerce. The

occupation tax imposed under Section 66 is not upon the transporta-

tion of the crossties, but is upon the purchase and sale of same within

the State of Georgia.

The tax is nominal in its amount, and there is no discrimination

between persons engaged in the purchase and sale of crossties who

are residents of this State, and persons similarly engaged who are

residents of another State. The ta.'l: imposed does not invade the

power of the Federal Government over interstate commerce, and

could not be held as an attempt by the State to regulate such inter-

state commerce. See in this connection Coe v. Errol, 116 U.S. 517,

29 L. Ed. 715; Kidd v. Pierson, 128 U.S. 25, 82 L. Ed. 351; Rother-

mel v. Meyerle, 9 L. R. A. 366, and notes.

I am therefore of the opinion that the Edward Comstock Company

is subject to the payment of this tax.

~86
TAXATION-Occupation tax on lumber dealers and brokers
February 18, 1936 Bon. R. E. Matheson State Revenue Commissioner State Capitol Dear Mr. Matheson:
I have your letter of February 7th inclosing copy of a communication from Mr. W. C. Redding of Macon, Georgia, with reference to his liability for the tax on lumber dealers.
1\Ir. Redding states that since December :n, 1930, he has not
carried on any wholesale business, but simply buys lumber on a commission basis for other wholesalers, being compensated by a small commission for placing their orders with the mills.
Paragraph 66 of the General Tax Act of 19~7, as amended, which was in force until December 31, 1935, levies a tax upon
"Every person, firm or corporation engaged in manufacturing, buying and/or selling at wholesale, and/or dealing in as a broker, of lumber in any of its forms or classes." The Act further provides that:
"Buying and/or selling any one or more of said products at wholesale and/or to any retail dealer therein, or manufacturer thereof, shall be considered as engaged in 'buying and/or selling at wholesale, and/or dealing in as a broker."' Under the language of the Tax Act a person who buys or sells lumber for another, as a broker, is subject to the tax. It seems that the business which Mr. Redding is conducting falls squarely within the terms of the Act. I presume, from: his statement, that when his wholesale customers desire lumber they inform him of their needs and he gives the order to the mills and makes the purchase, being compensated by a commission. In these circumstances, I think he is subject to the tax.
TAXATION-Occupation tax on dealers in monuments
February 15, 1935 Hon. R. E. Matheson State Revenue Commissioner State Capitol Dear Mr. Matheson:
I have yours of the 13th instant, requesting an opinion as to the liability of the Roberts Marble Company, 108 Ponce de Leon Avenue, N. E., for the payment of the tax upon persons, firms, or corporations selling monuments as laid under Paragraph 74 of the General Tax Act.
As you know, the tax is imposed "Upon each person, firm, or corporation selling monuments
or tombstones, $~5.00 in each county in which they have a place of business."

287
In the letter signed by J. B. Roberts of the Roberts Marble Company, under date of February 11, the company states that they have been operating a sales office in the City of Atlanta for the past four or five years, and one year ago opened a sales office and carried monuments on display at 1~9 Carnegie Way. Unquestionably the sales office where monuments are carried on display is "a place of business" of the Roberts Marble Company within the meaning of Paragraph 74 of the General Tax Act. (See Tuggle v. Enterprise Lumber Company, 123 Ga. 480; Bashinski v. State, 5 Ga. App. 3; Union and Mechanics' Club v. City of Atlanta, 136 Ga. 721; Roberts v. State, 4 Ga. App. 207).
TAXATION-Ordinary not authorized to exempt indigent peddlers from State occupation tax
January 28, 1936 Hon. R. E. Matheson, Commissioner State Revenue Commission State Capitol Dear Mr. Matheson:
I have your request for an opinion as to whether a license to peddle issued by an Ordinary of a county to an indigent or infirm person exempts such person from the State occupation tax imposed upon peddlers.
Section 84-2001 of the Code of Georgia of 1933 provides: "Every peddler or itinerant trader, by sample or otherwise,
shall apply to the Ordinary of each county where he niay desire to trade, for a license, which shall be granted to him on the terms said Ordinary may impose. The Ordinaries are authorized to impose such tax as they may deem advisable, to be used for county purposes. The license shall extend only to the limits of the county." Section 84-2005 provides:
"Ordinaries are hereby authorized to grant licenses to peddle to indigent and infirm persons, upon such terms as they in their discretion may impose." From these sections, it clearly appears that a license to peddle issued to an indigent person by an Ordinary extends only to the limits of the county and relieves such person only from county licenses for peddling. Section 92-3902 of the Code provides in part:
"The county charges for licenses shall be as follows: Peddling within the county, unless otherwise provided by the Ordinary under the law .... $50.00." The Ordinary, acting under the authority of Section 84-2005 and under the general authority conferred upon him by Section 23-701 (9) to regulate peddling and fix the cost of licenses therefor, is limited in his authority of exempting indigent or infirm persons from county peddlers licenses only. The Ordinary has no authority to issue to an indigent or infirm person an exemption from State occupation taxes imposed upon peddlers.

iSS
TAXATION-Hospitals conducted for charitable purposes not subject to occupation tax
February 20,_1986 Hon. W. B. Harrison Comptroller General State Capitol Dear Mr. Harrison:
In reply to your letter of February 19th, I beg to advise that in my opinion hospitals such as Wesley Memorial and Georgia Baptist, are not subject to taxation under Paragraph 93 of the General Tax Act.
While these hospitals charge patients for their services, they are not "conducted for gain" within the meaning of this paragraph of the General Tax Act, as I interpret that paragraph or as I understand the facts with reference to the operation of these institutions.
I do not think it was the intention of the General Assembly to tax hospitals conducted for charitable purposes, where all of the fees or charges collected from patients are used to operate the institution and do not pass to the owners or proprietors as private income.
TAXATION-Plumber pays tax in county of his residence
November 14, 1935 Hon. R. E. Matheson State Revenue Commission State Capitol Dear Mr. 1\fatheson:
I have yours of the 7th instant inclosing copy of a letter received from your Deputy Commissioner, Mr. H. G. Bell, requesting an opinion as to whether the East Side Plumbing Company, whose place of business is in DeKalb County but which does as much or more business in Fulton County than in DeKalb, are subject to the payment of an occupation tax for Fulton County in addition to the one paid for DeKalb.
You are familiar with the provisions of Paragraph 106 of the General Tax Act, under which this tax is levied. The tax is "upon every plumbing, heating, steamfitting and tinning and roofing contractor" and is graduated according to the population of the largest city in the county where such contractor has his place of business. I am of the opinion that the East Side Lumber Company, having its place of business in DeKalb County and having paid the tax in DeKalb County, is not subject to the tax in Fulton County. It is significant that Paragraph 106 does not levy the tax upon plumbing contractor in each county in which they do business, but the language of this paragraph is subject only to the construction that each plumbing contractor is subject to the tax in the county of his residence.

289
TAXATION-Commissions of tax collectors for collection of delinquent special or occupation taxes
June 20, 1935 Hon. R. E. Matheson State Revenue Commissioner State Capitol Dear Mr. Matheson:
Replying to your verbal request for an opinion as to the commissions to which a tax collector is entitled for the collection of delinquent special or occupation taxes, I beg to advise as follows:
Under Section 92-5207 of the Code of 1933 where a tax collector collects delinquent special or occupation taxes he is entitled, for the collection of the principal sum of the taxes, the commissions allowed by law for such collections. That is to say, the tax collector is entitled to the same commission for collecting the tax after delinquency that he would be entitled to ii he had collected it before delinquency. This applies, however, only to the principal amount of the tax itsel. In addition to his commission for collecting the principal amounts, the tax collector is entitled to a commission of ten per cent. of the amount of the penalty collected. In other words, ii a tax collector should collect delinquent corporation taxes, he would not be entitled to a commission of ten per cent. for collecting the principal amount of corporation tax, but for that collection he would be entitled to the scale of commission fixed by law for the collection of corporation taxes. He would, however, in addition to that commission on the principal amount of taxes, be also entitled to ten per cent. of the penalty collected on account of the delinquency of the corporation tax.
TAXATION-Registration of businesses with Ordinary
February 15, 1936
Hon. W. B. Harrison Comptroller General State Capitol Dear Mr. Harrison:
Answering your inquiry of recent date I beg to state that the General Tax Act now in force is materially different from the General Tax Act of 1927 which was in force in 1933 when I rendered you an opinion on those due occupation taxes registering with the Ordinary. Section 6 of the General Tax Act of 1935 now in force in reference to occupation taxes, provides in part as follows:
"Before any person shall be authorized to open up or carry on said business, they shall go before the Ordinary of the county in which they propose to do business and register their names, the business they propose to engage in, the place where it is to be conducted and they shall then proceed to pay the tax to the collector, at or before time of commencing to do business as hereinbe-

~90
fore provided; and it shall be the duty of said Ordinary to immediately notify the Tax Collector of such registrations, and at the end of each quarter to furnish the Comptroller General with a report of such special tax registration in his office. The Ordinary is hereby authorized to collect a fee of $1.00 from such registrant." Under this Act I am of the opinion that it is the duty of each
person engaged in business to register with the Ordinary for each type of business taxable and to pay to the Ordinary $1.00 for each type of business taxable. I am of the further opinion that except where the law specifically places a tax on a place of business that it is necessary for the taxable person to register for each place of business. For instance, if a man has a business that is taxable as such he must register with the Ordinary for that business and then should he have taken on in connection with that business another business that is taxable he should also register with the Ordinary for that business. If a person that is taxable registers with the Ordinary he can conduct two or more places of business of the same type without registering for each place of business.
TAXATION-Lien of State and county taxes for prior year not divested by sale under tax fi. fa. for later year
February 21, 1935 Hon. Julius A. McCurdy, Jr. Attorney at Law Decatur, Georgia Dear Mr. McCurdy:
I have yours of the 19th instant, requesting an opinion as to whether the lien of State and county for taxes is discharged where a sale under a tax execution issued for taxes in 19fl8 is had, and the purchaser is put into possession, and later the State and county issues a tax fi. fa. for 1927 taxes. You refer me to Section 1148 of the Code of Georgia of 1910 (Section 92-7702, Code of Georgia of 1933) and Sections 1140 and 1141 (Sections 92-5707 and 9fl-5709 of the Code of Georgia of 1933). Section 1148 to which you refer, should be construed in connection with Sections 4355-4357 of the Code of Georgia of 1910 (Section no-1001, Code of Georgia of 1933) in order to arrive at the true meaning of this Section.
In considering this question as to whether the lien of the State and county for 1927 taxes was divested by the sale under a tax execution for the year 19fl8, I refer you to Section 92-7fl01 and Section 92-7fl02 of the Code of Georgia of 1933. This first Section provides for the making of a record by the Tax Collector of all tax defaulters. Section 9fl-7202 provides:
"When any tax shall be collected after said record is made, it shall be applied to the oldest tax demand against said person paying the same." Now, it is my opinion that the Tax Collector should have applied the proceeds of the sale for the 1928 taxes to the oldest tax demand, to wit: The taxes due for 19fl7. However, I do not think that the

291
failure of the Tax Collector to discharge his duties in this respect would operate so as to divest the State and county of its lien for taxes for the year 1927, for the reason that Section 89-903 of the Code of Georgia of 1933 provides:
"Powers of public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred." This being true, and Section 92-5707 providing that
''Taxes shall be paid before any other debt, lien or claim whatsoever, and the property returned or held at the time of returning them, or thereafter, shall always be subject," it is my opinion that the property in question is still subject to the lien of State and county for taxes for the year 1927. The cases referred to in your letter did not deal with tax executions, and for that reason, I do not feel that the ruling in these cases could be extended or construed so as to hold that the sale under a tax execution for the year 1928 and the application of the proceeds therefrom to the discharge of such execution will divest the State and county of liens for taxes due for prior years. Although an apparent hardship may be worked upon the purchaser in this case, I feel that the rule of caveat emptor applies to purchaser at a tax sale, and that said purchaser should have taken proper precaution to determine the soundness of the title, and the status of liens against such property before the same was purchased.
TAXATION-Five year exemption from ad valorem taxation, who entitled to
June 21, 1935 Mr. Robert L. Russell Winder, Georgia Dear Mr. Russell:
This will acknowledge your letter of the 20th. It appears from your letter that the building in question on which exemption is claimed was originally built and occupied without regard to the constitutional amendment or the Act of 1925 which provided largely for carrying into effect the constitutional amendment. In your letter you state,
"Subsequent to the original leasing to the manufacturing concern, the building was enlarged to twice its former size. The owner of the building now claims an exemption." You do not specifically state that the.owner of the building made the enlargement. However, I am proceeding on the theory that such enlargement was made by the owner. There is another question which arises in properly interpreting the constitutional provision; that is, may the ownership of a building be separated from its use and occupancy by a lessee in considering the question of exemption. In the case of City of Columbus v. Muscogee Mfg. Co., 165 Ga. 259, Judge Hines uses the following language:

"Before a person will be entitled to the exemption granted in

this provision, he must 'build, equip, establish or enlarge a plant

for the manufacture or processing of some one or more of the arti-

cles therein specified. If he builds or establishes a plant, such

plant is exempt from taxation. The exemption includes buildings

erected for and used as a part of the plant and the land upon

which they are located and the land adjacent thereto which is

necessary for their proper use, occupancy and enjoyment, al-

though such land may have been subject to taxation prior to the

location of the plant thereon . . . . If a person has an unequipped

plant and equips the same, such equipment is exempt from taxa-

tion under this provision. If the owner of an equipped plant en-

larges his plant, such enlargement of the plant is exempt under

a this provision, so what is exempt under this provision is the build-
ing of a plant, equipment of a plant, or the enlargement of

plant."'

In the same opinion it is said:



"The exemption allowed by this provision of the Constitution

is confined to a manufacturing plant, which includes those things

which are necessary in and to its operation. Its purpose is to

exempt the real estate, buildings, machinery, improvements,

equipment and other personal property forming a part of and be-

longing to the plant and essential to and necessary in its opera-

tion."

From reading the language of the constitutional amendment and

that used by Judge Hines in the case just cited, and keeping in mind

that exemptions should be strictly construed in favor of the public,

I am inclined to the opinion that the building and enlargement are

not exempt from county taxation. In other words, I do not think it

was in contemplation when the amendment was adopted by the

people of the State that one person could erect a building and there-

upon lease that building to another person or corporation to engage

in an exempted industry and thereby claim the exemption provided

for in the constitutional amendment. While this question is not

before the court in the City of Columbus case, from the language

from the decision, I am of the opinion that the building and equip-

ment, or enlargement and equipment, must be an entire plant be-

longing to and operated by the owner.

I repeat a part of what is said above for effect and emphasis:

"So what is exempt under this provision is the building of a plant,

the equipment of a plant, or the enlargement of a plant."

For the reasons above stated, as I construe the situation conveyed

by your letter, I am forced to the conclusion that the building in

question is subject to be taxed as any other property in Barrow

County.

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TAXATION-What concerns entitled to five-year exemption from ad valorem taxation
April 20, 1936 Hon. R. W. Hunter City Manager Quitman, Georgia My dear :Mr. Hunter:
This will acknowledge your letter of April seventeenth advising that your city has the opportunity to secure an industry that will be of great value to your community provided you are able to extend to them the exemption from taxation that is provided by the constitutional amendment ratified November 4, 1924, and which now appears as Code Section 2-5003 in the Code of 1933.
You desire to know if the exemption made under that section, providing that
"Any person, natural or artificial, a resident of this State, who may after January 1, 1924, build, equip, establish or enlarge a plant for the manufacture or processing of cotton, wool, linen, silk, rubber, clay, wood, metal, metallic or nonmetallic mineral or combination of same, creamery or cheese plant; or for the production or development of electricity, may, as to such building, enlargement, or equipment, be exempt from all county, incorporated town or city ad valorem taxes for a period of time not exceeding five years from the date of the beginning of the building, enlargement or equipment of such plants," may be extended to a plant for the manufacture and processing of "cotton seed." I am of the opinion, for the reasons hereinafter stated, that cottonseed come within the meaning of the word "cotton" as used in the constitutional provision. I think that, the word is used in its generic sense. Webster's Unabridged Dictionary thus defines the word "cotton":
"COTTON 1. A soft, white, fibrous substance composed of the twisted hairs clothing the seeds of various malvaceous plants, esp of the genus gossypium. Careful selection has greatly improved the quality and increased the length (staple) of the fibre. The southern United States yield about 85% of the total cotton crop, the remainder being grown in Egypt, India, China, Brazil, and few other countries. On account of its cheapness and durability cotton is the most important of textile products. It is also used extensively in medicine and surgery and in the arts. Chemically it is almost pure cellulose. 2. The cotton plant; also, collectively, the crop. The plant is of erect and freely branching habit with alternate lobed leaves and large yellow flowers, becoming red the second day, subtended by a cup shape involucre composed of several large fringed bracts. The fruit (boll) is a capsule which bursts open when ripe, allowing the seeds and attached cotton to be easily picked. Most of the cotton grown in the United States belongs to two types: Upland cotton (gossypium hirsutum), having a short staple, and Sea Island cotton (g. barbadense),

294
having a long silky staple. The important cottons of other countries are the Peruvian, Egyptian, Brazilian, and Indian varieties." Another more abbreviated definition of cotton is taken from The New Century Dictionary, as follows:
"COTTON. A soft white downy substance consisting of the hairs or fibres attached to the seeds of plants of the malvaceous gossypium, used in making fabrics, thread, wadding, gun cotton, etc.; also, a plant yielding cotton as g. hirsutum ('upland cotton') or g. barbadense (sea-island cotton); such plants collectively as a cultivated crop; also, cloth, thread, etc. made of cotton; also any soft downy substance resembling cotton, growing on some other plant," but it will be observed that the meaning is the same. At one time in this State the fertilizer companies very generally gave the option to farmers to pay their fertilizer notes in the fall season when the crop was marketed either in money or cotton. The form of these notes almost without exception provided that the debt should be paid in "lint cotton in merchantable bales" of a given grade, the practice in the trade recognizing that lint was a subdivision of the generic term cotton. The United States Government in securing reports of crop conditions refer to the "cotton crop." However, when they secure and make public reports as to estimates of production the estimate is made in bales of lint cotton. In the case of Soudan Planting Co. v. Stevenson, 83 Ark. 171, the Supreme Court of Arkansas in construing a contract involving the payment of a debt in "cotton" said:
"It is urged that there is ambiguity in this contract in the use of the term 'cotton,' and that, owing to this ambiguity, parol evidence should be let in to ascertain what cotton was intended. It is plain, under the evidence in this case, that the term 'cotton' is susceptible to many meanings. Cotton ranges in grade and quality from long staple, which brings a premium frequently many cents above the average, to 'dog-tail,' which is a poor grade and of little value." It is well known that the State of Arkansas is a cotton-growing State and its Supreme Court in construing this contract recognized the fact that the word cotton has many meanings.
In another case the Supreme Court of South Carolina, in Swift & Company v. Sullivan, 147 S. E. 315-18, said:
"It is a fact, of which this court should take notice, that the early planting of cotton in this State is necessary for a successful crop, and especially is this true since the coming of the boll weevils and the ravage to the cotton crop resultant therefrom. Furthermore, this fact must be presumed to be especially, if not peculiarly, within the knowledge of the officers of the plaintiff (Fertilizer Company) and imputed to the plaintiff, for the plaintiff, along with other fertilizer companies, has been engaged in the manufacture of fertilizer and selling the same to farmers to be used in the growing of cotton throughout the cotton belt for a number of

295
years. Here we might add that it is common knowledge that many farmers, merchants, and other businessmen, including fertilizer companies, have suffered financial ruin because of the infestation and destruction of the cotton crop by the boll weevil, and, many methods have been suggested to aid in controlling the infestation, it is common knowledge that cotton cannot be grown successfully in the boll weevil belt without early planting, it matters not what other methods may be employed in fighting the 'pest."' The above quotation shows that the Supreme Court of South Carolina (another cotton growing State) uses and speaks of cotton in the inclusive sense. In addition to the above we know that in the cotton belt we have what is known as the cotton planting season, the cotton thinning season, the cotton ginning season, and the cotton marketing season. It is evident from the fact that the General Assembly proposed, and the people of the State ratified the exemption amendment, that the purpose and intention was to encourage the building, equipment, and establishment of manufacturing and processing plants for the purpose of promoting the general welfare of the people of this State. Referring back to the definition of cotton taken from Webster's Dictionary it will be observed that it is said in this definition that cotton is the most important of textile products. It is now a matter of common knowledge that cottonseed and cottonseed products are largely used not only for food but for many other purposes and that a vast industry has arisen in connection with the processing of cottonseed. I believe it would be a too narrow construction of the language of the constitutional amendment to say that the beneficient purposes of this amendment might be extended to those communities who might be interested in the manufacturing and processing of the lint, and at the same time withheld from those communities who might desire to promote the processing and manufacturing of the seed. I am, therefore, as stated above, of the opinion that if the proposed manufacturing establishment otherwise meets the provisions of the constitutional amendment, you will be entitled to the benefits of the exemption in the manufacture or processing of cottonseed.
TAXATION-Date taxes past due when December 20th falls on Sunday
July 30, 1936
Hon. Usher T. Winslett Tax Collector, Bibb County Macon, Georgia
My dear Mr. Winslett:
Your letter of recent date stating that as December 20th comes on Sunday and inquiring whether or not taxes may be paid on the following day without being considered in default received.

!96
Section 102-102 of the Code of 1933 provides specifically that when a number of days is prescribed for the exercise of any privilege or the discharge of any duty only the first or last day shall be counted and if the last day shall fall on Sunday, another day shall be allowed in the computation.
I am of the opinion that the time for payment of the taxes for this year should be extended to Monday, December 21st.
TAXATION-Where property sold under city tax fi. fa. and bought in by city, after two year redemption period has expired, lien for State and county taxes is removed
June 18, 1936 Hon. Henry C. Latimer, T. C. Hancock County Sparta, Georgia Dear Sir:
I have yours of the 15th instant requesting an opinion as to whether city lots purchased by the City of Sparta at a tax sale under tax fi. fas., issued by the Clerk and Treasurer of the City of Sparta are subject to taxation by the State and county.
Under Article VII, Section 2 of the Constitution, the legislature has the power to exempt all "public property" from taxation, and acting under this authority, the legislature has exempted "all public property" from taxation (see Section 92-201 of the Code).
In Mundy v. Van Hoose, 104 Ga. 292, it was held that the term "public property" as used in this Code Section means any property belonging to the State or the political divisions thereof, such as counties, cities, towns, and the like. The exemption is unqualified, and rests alone upon ownership of the property in question by either the State, or one of its political subdivisions. The exemption is not dependent upon the use made of the property by the State or its political subdivisions, for it was held by the Supreme Court in the case of Walden v. Town of Whigham, 120 Ga. 646, that a building and a stock of liquors owned by a municipal corporation and operated by it as a dispensary are "public property" within the meaning of this exemption statute, and exempt from state and county taxation, even though the town had no legal authority to maintain and operate a dispensary.
Therefore, under these decisions, if the City of Sparta owns the city lots, the same are exempt from State and county taxes as "public property." However, in view of the fact that under the Act approved March 26, 1935, (Ga. Laws 1935, page 466) the owner or other person entitled to redeem property sold at tax sales and bid in by the mayor or other proper officer of the municipality as the privilege of redeeming such real property within two years from the date of such sale, the City of Sparta could not become the absolute owner of these lots until the period of redemption has expired. Until the expiration of such period of redemption, the title under which the city holds, is inchoate and is subject to statutory defeasance as provided in the Act of 1935.

297
It is my opinion that these city lots do not become public property, within the meaning of the constitution and statutes, until the equity of redemption has expired. Therefore, these lots, are subject to State and county taxation for the period during which the equity of redemption is running. After said period has run, the city becomes the absolute owner of the lots and they are no longer subject to State and county taxation.
I have made a very thorough study of the law with reference to this question, as I realize its importance. I have been unable to find any case from either of our appellate courts which is directly in point. However, I think that the principle laid down in the Town of Whigham case, above cited, is controlling. I do find, however, where the Supreme Court of Mississippi, in construing a statute very similar to ours, in the case of Alvis v. Hicks, 116 So. 612, held that a statute exempting real and personal property belonging to a municipality from taxation applies to all real and personal property that the municipality is authorized by law to acquire and own, not only to property acquired for municipal purposes, and includes lands acquired as a result of the enforcement of collection of municipal taxes due thereon.
This case further held that when a municipality acquires its title to said property, any existing lien on property for State and county taxes is thereby removed where the two year period of redemption has expired.

TAXATION-Tax Collector not authorized to accept county warrant in payment of taxes

November~. 1986

Hon. R. H. Johnson

Tax Commissioner, Turner County

Ashburn, Georgia

Dear Mr. Johnson:

I have your letter of October 80th requesting that I advise you

with reference to the acceptation of county warrants in payment of

taxes.



Under the law of Georgia, the tax collector is not authorized to

accept a county warrant in the payment of any taxes. He is au-

thorized to accept a jury script in payment of county taxes only.

Section 92-5707 of the Code of 1983 provides as follows:

"Taxes shall be paid in lawful money of the United States, free

of any expense to the State."

This section is a combination of Sections 1018 and 1044 of the

Code of 1910. Section 1013 of the Code of 1910 was as follows:

"Taxes must be paid in gold or silver, or in the bills of such

banks as pay specie promptly, unless specially excluded by law or

otherwise directed by the Governor."

Section 1044, which had a special reference to the payment of

corporation taxes to the Comptroller General provided:

298
"Such payments must be made in the funds in which taxes may be paid to the State Treasury, free of any expense to the State." It is the general rule embodied in our law that a bank check is not payment until it is itself paid. Accordingly, the only medium of payment acceptable as satisfaction of a tax claim is lawful money of the United States. However, as a practical proposition, nearly all tax collectors accept bank checks. Of course if a bank check should not itself be paid, the tax liability would not be extinguished. Section 92-3804 provides that:
"The tax collectors shall receive jury script when properly authenticated, as far as they will go toward paying the county tax of the person holding the same, for all taxes due by the taxpayers of this State to their respective counties." You will note from this language that jury script may be accepted only in settlement of county taxes. It is my opinion that the tax collector is chargeable with the full amount of the taxes shown on his digest, and that he must account for the full amount of the digest by paying over the requirsite amount of cash, a jury script being accounted cash so far as county taxes are concerned, or returning executions with entries of nulla bona thereon, or showing that some item of tax was erroneously charged on the digest. As a practical proposition and for accounting purposes, if the tax collector has actually taken in county warrants,. which are endorsed to him, he is entitled to collect them from the county treasurer, just as any other holder, when there are funds on hand with which to pay them. He could use funds thus collected to account for his tax liability to the county. In my opinion the surety on the bond of a tax collector would be liable if a loss should result to the county or the State from the action of the tax commissioner in accepting county warrants in settlement of taxes. No such liability could arise from the acceptance of jury script, since the law expressly authorizes him to accept jury script, but, as stated, he is not authorized to accept any other county warrant in payment of taxes.
CORPORATION&-Charters, how long continued
February 15, 1935
Hon. John B. Wilson Secretary of State Atlanta, Georgia Dear Mr. Wilson:
This will acknowledge your request for an opinion as to whether the charter of the Farmers Co-operative Insurance Association of Rome, Georgia, has expired.
It is stated in your letter that this company "was chartered in 1894 for a period of 50 years." I assume that the charter itself contains a provision stating the period during which the corporation shall exist.

299
Section 8 of the Act approved December 18, 1893, provides in part: "The rights, powers, and privileges granted to said corporation
shall not continue for a longer period than 50 years, unless the same be continued by laws of force at the expiration of said 50 years." (Georgia Laws 1893, p. 76). This provision was of force and effect until the Act of 1902 (Georgia Laws 1902, p. 52), when it was expressly repealed by said Act. We find in the Code of 1863, Section 1632, the following provision:
"Corporations have continuous succession during the time limited by their charter notwithstanding the death of their members. Should any charter granted in the future by the General Assembly to a private corporation be silent as to its continuance such charter shall expire at the end of 30 years from the date of its grant." This provision has been carried forward without change in the Codes of 1867 (Section 1677), 1873 (Section 1678), 1882 (Section 1678), 1895 (Section 1851), and 1910 (Section 2215). Construing the provisions of this section in connection with the Act of 1893, under which the Farmers Co-Operative Insurance Association of Rome, Georgia, was incorporated, I am of the opinion that if the charter specifically stated that this corporation was to continue for the term of 50 years, said charter will not expire until the year 1944, or at the end of 50 years from the date the charter was granted. However, it is my further opinion that if the charter was silent as to its continuance such charter expired at the end of 30 years from the date of its grant, in accordance with the provisions of Section 2215 of the Code of 1910 (Section 22-702 of the Code of Georgia of 1933).
BOND5-All counties, school districts and municipalities issuing bonds are required to register the bonds with the Secretary of State
May 3, 1935 Hon. John B. Wilson Secretary of State State Capitol Dear Mr. Wilson:
I have your letter of 1\fay 2nd requesting my opinion as to the meaning of Section 22-718 of the Code of Georgia of 1933 which provides as follows:
"All public and private corporations, that shall issue or indorse any bonds for circulation, shall furnish to the Secretary of State a certified statement showing the letter, date of issue, number of bonds, amount of issue, rate of interest, when and where payable, and the date of the law, if any, authorizing such issue. The Secretary of State shall record the same in a book to be kept by him for that purpose. When such bonds have been paid and canceled, the corporation issuing same may have an entry to that effect made

soo
upon the record by the Secretary of State, upon exhibiting to that official the bonds properly canceled upon the face thereof, and paying a fee of $1." Under the law of Georgia there are two classes of corporations, to wit, public corporations and private corporations. It is provided by Section flfl-10fl of the Code of 1933, that
"Corporations are either public or private." Section flfl-103 is as follows:
"A public corporation is one having for its object the administration of a portion of the powers of government delegated to it for that purpose-such are municipal corporations." Section flfl-104 of the Code of 1933 provides:
"All others are private, whether the object of incorporation be for public convenience or individual profit, and whether the purpose be, in its nature, civil, religious, or educational." By its express terms Section 22-718 applies to all public and private corporations. A municipality is a public corporation. (Code of 1933, Section 22-103). A county is a public corporation. (Code of 1933, Section 23-1501). A school district empowered to issue bonds is a public corporation. (Ty Ty Consolidated School District v. Parker Lumber Company, 153 Ga. 426 (1).) I am of the opinion therefore that all school districts, municipalities and counties which issue bonds are required under provisions of Section 22-718 of the Code to register same with the Secretary of State. The section just referred to is plain and clear, and contains no ambiguity. It must be given effect according to its express terms. It is not subject to any construction other than that every corporation, whether private or public, must comply with the conditions therein laid down.
SECRETARY OF STATE-Duties of Secretary of State in reference to chartering banks
October 21, 1935 Hon. John B. Wilson Secretary of State State Capitol Dear Mr. Wilson:
I have your letter of the 16th instant asking for my opinion as to whether or not the Secretary of State has any discretion in granting certificates issuing charters to banks, or amendments to such charters, after the specific requirements set forth in the Acts of 1893 and 1919 have been met and appear on file in his office.
The text of Corpus Juris, 59 C. J., 116, is as follows: "The Secretary of State is an executive or ministerial officer,
and possesses no judicial powers . . . . The Secretary of State possesses no substantive powers except such as are enumerated in constitution or statute, cannot perform functions not falling

801
within the authorized scope of his official duties, and can be required to act only in compliance with an existing law." This text is supported by several foreign decisions, two of which are as follows:
"Secretary of State possesses no judicial powers, since he is mere ministerial officer." West Park Realty Co. v. Porth, 212 N. W.. 651 (Wis.).
"The Secretary of State, like every other officer of the State government, possesses no substantive powers, except such as are enumerated in the constitution and statute. The provisions of law referred to define and limit his duties, and he can only exercise those duties upon the terms and conditions specified in those provisions." Brown v. Fleischner, 4 Oregon, 132. The Constitution of this State, Article 3, Section 7, Paragraph 18 (Code of 1933, Section 2-1818), is in part as follows:
"All corporate powers and privileges to banking, insurance, railroad, canal, navigation, express and telegraph companies shall be issued and granted by the Secretary of State in such manner as shall be prescribed by law." The Constitution, Article 5, Section 2, Paragraph 2, (Code of 1933, Section 2-2702) is as follows:
"The General Assembly shall have power to prescribe the duties, authority and salaries of the Secretary of State, Comptroller General, and Treasurer, and to provide help and expenses necessary for the operation of the department of each." The duties generally of the Secretary of State are prescribed in Section 40-601 of the Code, and his duties as surveyor general are set forth in Section 40-604, and his duties as corporation commissioner in Chapter 22. None of the duties as set out in these sections, and this chapter, confer upon the Secretary of State any judicial or discretionary power or authority relating to the granting of charters. Since the Code of 1983, the law relating to the granting of bank charters, the amendment of such charters and their renewals, is contained in Sections 13-907, 13-1007 and 18-1106, and cognate sections in Chapter 13. Under these sections it is the duty of the Secretary of State, when the conditions required have been met, one of which is the approval of the Superintendent of Banks, to issue his certificate of incorporation, or certificate of amendment, or certificate of renewal, as the case may be to such banks as are under the Act of 1919. There is no discretion or judicial power vested in the Secretary of State in passing upon an application for the charter of a bank, or an amendment or renewal of a charter, if the conditions imposed by the law have been met and complied with, and if such bank is entitled to a charter or to have its charter amended or renewed under the Act of 1919.
Under the Act of 1919 (Code of 1933, Section 13-1001) the right to amend bank charters is as follows:
"WHAT AMENDMENTS ALLOWED-Any bank whether incorporated by special act of the General Assembly or by the

Secretary of State under the general law may have its charter amended so as to change its corporate name, or the city, town, or village in which its office is located, or the amount of its capital stock, or the number of shares into which its capital stock is divided, so as to change the par value thereof to $100 each; and where the capital stock . . . . be not less than $100,000, so as to acquire all the rights, powers, privileges and immunities . . . . imposed upon trust companies . . . . and any bank HERETOFORE INCORPORATED BY SPECIAL ACT OF THE GENERAL ASSEMBLY may have its special charter amended so as to incorporate therein any provision of this title or any amendment thereto." The Act of 1935 abolishing the double liability on stockholders in banks simply amended the sections of the code setting out the Act of 1919. Since there is no provision in the Act of 1919 for the amendment of bank charters granted under the Act of 1893 so as to change the liability of stockholders, the amendment of 1935 cannot apply to banks incorporated under the Act of 1893. There is, therefore, no law authorizing the amendment of charters under the Act of 1893 so as to change stock liability imposed thereby, and it is my opinion that the Secretary of State would have no authority to issue a certificate of amendment to the charter of a bank incorporated under the Act of 1893, abolishing the stock liability imposed thereby, even though such proposed amendment had been approved by the Superintendent of Banks. The first provision of the Constitution quoted above limits the power of the Secretary of State to the granting of corporate powers and privileges to banking companies, etc., to "such manner as shall be prescribed by law." In the absence of legal authority he would have no right to grant an amendment changing the liability of stockholders in a bank not provided for or coming under the provisions of the Act of 1919, and banks incorporated under the Act of 1893 are not included in the Act of 1919 as to the matter of stock liability imposed upon their stockholders.
CORPORATION&-Charter of a telegraph company may be amended so as to include what
October 1, 1936
Hon. John B. Wilson Secretary of State State Capitol Dear :Mr. Wilson:
I have your letter of the 28th with reference to a telegraph company heretofore chartered by you under the Act of 1893 which desires to amend its charter so as to authorize it to operate telephone lines.
Section 104-205 of the Code of 1933 authorizes telegraph or telephone companies chartered by the laws of this or tny other State to construct, maintain and operate telegraph or telephone lines and to excerise the right of eminent domain for the purpose of construct-

303
ing, operating and maintaining such telegraph or telephone lines through or over any lands of this State.
I am of the opinion that in the absence of some restriction in its charter a telegraph company incorporated pursuant to the Act of 1893 (Code of 1933, Section 104-101) would be authorized to operate telephone lines.
I have examined the charter of the Sylvania Telegraph Company, which I understand is the corporation to which you refer. The charter is somewhat restricted in its terms and seems to limit the power of the company to the construction and operation of a telegraph line between designated points. This being true it is somewhat doubtful whether this company could exercise the broad power conferred generally upon telegraph companies by the Section of the Code referred to without amending its charter.
I am of the opinion that you are authorized, on a proper application, to permit this company to amend its charter so as to empower it to do all of the things which the law authorizes telegraph companies chartered by the laws of this State to do.
CONSTITUTIONALITY OF ACT-Co-operative Marketing Act of 1920 unconstitutional
N ovembcr 20, 1936 Hon. John B. Wilson Secretary of State State Capitol Dear Mr. Wilson:
I have your letter of the nineteenth inclosing a communication from Mr. W. C. Fleming of Augusta in which he asks that you obtain from me a ruling as to the constitutionality of the Co-operative Marketing Act of 1920.
So far as your letter, or that of Mr. Fleming, indicates there is nothing pending before your department which requires a ruling on this question. I judge that Mr. Fleming desires the information for some purpose of his own. This being true, I do not think I am authorized to make a formal ruling on the question. The Attorney General is authorized to render opinions only with relation to matters which concern the departments of the State government.
However, I do not mind giving you and Mr. Fleming my personal views on the subject. Section 65-103 of the Code of 1933, which is a part of the chapter relating to the organization of cooperative associations under the Act of 1920, provides that a certified copy of the articles of incorporation, which are prepared under the preceding section by the incorporators, and set forth the information required in that section, shall be filed with the Secretary of State, "who shall file them, and in his discretion issue his official acknowledgement of said filing which shall be returned to said corporation!' The Section then provides that a certified copy of the articles of incorporation and of the certificate of filing of the Secre-

304

tary of State shall be filed with and recorded by the Clerk of the

Superior Court in the charter book in which the corporation has its

principal place of business. Thereupon the Clerk is required to

deliver to the corporation a certificate of such filing and recording

"which is hereby made its certificate of incorporation and right to

commence business as such." The action of the Clerk of the Superior

Court is purely ministerial, and the statute vests in him no discre-

tion with respect to filing the articles of incorporation and the cer-

tificate of filing issued by the Secretary of State or with respect to

issuing to the corporation his certificate of such filing and recording.

The officer who is clothed with any discretion under this section is

the Secretary of State who "in his discretion" shall issue his official

acknowledgement of the filing of the articles of incorporation.

From what has been said, it seems to me that it must necessarily

be held that the articles of incorporation or the charter powers are

granted by the Secretary of State. Certainly it cannot be said that

the charter powers are granted by the superior court.

Article III, Section VII, Paragraph XVIII of the Constitution

(Code of 1933, Section 2-1818) provides that the General Assembly

shall have no power to grant corporate powers and privileges to

private corporations, but "shall prescribe by law the manner in

which such powers shall be exercised by the courts." The same sec-

tion further provides that all corporate powers and privileges to

banking, insurance, railroad, canal, navigation, express, and tele-

graph companies shall be issued and granted by the Secretary of

State in such manner as shall be prescribed by law.

Plainly the General Assembly has no power to authorize the

Secretary of State to grant corporate powers and privileges to a

private corporation, but can only provide for the exercise of such

power by the courts.

It seems clear to me that a charter granted under the provisions

of the Co-operative Marketing Act of 1920 is not granted by any

court, but if it can be said that it is granted by any official it is granted

by the Secretary of State.



From what has been said I am satisfied that this Act is violative

of the paragraph of the Constitution referred to. The Code Com-

mission which prepared the 1933 Code took this view, and so stated

in an editorial note to Section 65-103.

It will be noted that under Chapter 65-2 of the Code of 1933,

which embodies the Co-operative Marketing Act of 1921, a corpora-

tion may be formed for such purpose under the general incorporation

laws of Georgia, the charter being granted by the Judge of the Su-

perior Court. I do not know that any effort has ever been made to

form a corporation under the Act of 1920.

305
ARCHIVES AND HISTORY-Director of Archives and History may not remove records from Archives Department
December 9, 1936 Hon. John B. Wilson Secretary of State State Capitol Dear l\fr. Wilson:
I have your letter of December 8th in which you state that there are now in the Department of Archives and History records containing the names of some fifty or sixty thousand Georgians, giving important facts, and among other things, the civil and military records of each, when available, also including a book showing the records of the Judges and Solicitors of the various courts of this State and other similar records. You state that these records have been compiled under the supervision of the present Director of the Department of Archives and History, are written on service record cards purchased at State expense, and were compiled by the present Director and the employees of the Department of Archives and History while they were being compensated for their services by the State. You desire to know whether these records belong to the State of Georgia, and whether they may be removed from the Department by the present Director or any other person. You also desire to know whether any other record of the Department may be so removed.
The objects and purposes for which the Department of Archives and History was created are stated in Section 40-802 of the Code of Georgia of 1938. One of the declared purposes of the Department is to
"Collect from the files of old newspapers, court records, church records, private collections, and other sources, data of all kinds bearing upon the history of the State." The Department is also required to publish every two years an official register giving the latest information of an official character in regard to the State, including a full list of State house officers, legislators, judges and solicitors, members of Congress, county officials, etc. The Department is authorized and required
"To collect biographical information in regard to all public officials and to keep same on file, in a classified arrangement, for convenient reference by investigators." In my opinion any records compiled by the Director of the Department of Archives and History, or the assistants working under that Director, or both, are public official records of the State, which may not be removed from the Department of Archives and History by the Director or any other person. I am clearly of the opinion that the records referred to in your letter are records of such character. These records belong to the State of Georgia and neither the Director of the Department nor any other person is authorized to remove them.

306
In the event the Director should refuse to surrender these records to her successor in office at the expiration of her term, which your letter indicates you apprehend may be the case, a summary proceeding for their recovery may be instituted, after a demand made, under Sections 69-604 and 69-605 of the Code of Georgia of 1933.

ARCHIVES AND HISTORY-Secretary of State authorized to name all assistants and employees in the Department of Archives and History

December 9, 1936

Hon. John B. Wilson

Secretary of State

State Capitol

Dear Mr. Wilson:

I have your letter of the ninth in which you request my opinion as

to whether, under Section 4Q-804 of the Code of 1933, the Secretary

of State has the power to select and appoint all the assistants and

employees in the Department of Archives and History.

Section 4Q-803 of the Code of 1933 provides that the Director of

the Department of Archives and History, or State Historian, shall

be appointed by the Secretary of State. Section 4Q-804 of the Code

of 1933 provides in part as follows:



"The Secretary of State is hereby empowered to adopt rules for

the government of the department (Department of Archives and

History); to appoint a Director, and to provide for the selection

or appointment of such other officials or employees as may be

authorized; to provide for the publication under the supervision

of the Director of historical material pertaining to the State; to

control and expend such appropriations as may be made for the

maintenance of the Department of Archives and History, and to

do such other acts and things as may be necessary to carry out

the true intent and purpose of this chapter."

In my opinion under the plain language of the statute above

quoted the Secretary of State is authorized to select and appoint

the assistants and employees in the Department of Archives and

History.

SUPREME COURT-Clerk of Supreme Court required to give a bond
June 7, 1935 Miss Katherine C. Bleckley, Clerk Supreme Court of Georgia State Capitol My dear Miss Blcckley:
I have your letter of June 5th requesting my opinion as to whether or not the Clerk of the Supreme Court is required to give a bond.

807
The law does not specifically so require. However, I am of the opinion that the so-called Accounting Act of 1933, which is codified as Chapter 89-8 of the Code of 1933 does require the Clerk of the Supreme Court to give bond.
Section 6-1703 of the Code of 1933 makes it the duty of the Clerk of the Supreme Court to collect the costs in the Supreme Court as prescribed by Section 6-1702, and to annually make a report to the State Treasury containing a full statement of the amount of costs collected, and to annually pay into the Treasury of the State the amount of such .costs.
Section 89-801 of the Code of 1933, which is a part of the so-called Accounting Act of 1933 defines a "collecting officer" as including not only State and County Tax Collectors and Revenue Agents," but also every other person who shall be either generally or specifically elected, appointed, or employed, in whole or in part, to collect on behalf of the State or any of its political sub-divisions, or any board, commission, bureau or department thereof, any tax revenue or other monies." In my opinion the Clerk of the Supreme Court is a collecting officer within the meaning of this provision of the Accounting Act since the code section above referred to places upon the Clerk the duty of the collecting of the cost in the Supreme Court and of paying the same in to the State Treasury.
Section 89-801 further defines an "officer to hold public funds" as including any person, by whatever name or title called, who shall be elected, appointed or employed, with the duty to receive, hold or disburse on behalf of the State or any of its political sub-divisions, or any board, commission, bureau or department any public money or revenue.
It seems to me that the Clerk of the Supreme Court is also an officer to hold public funds within the meaning of the definition of this term set forth by this section of the code. This is true, for the reason that although the law does not expressly place such duty on the Clerk, the Clerk is, as a matter of fact, the disbursing officer of the court and receives and disburses appropriations made to the court for its incidental expenses.
The section last referred to also defines "public body," "state authority" and "proper authority."
Section 89-806 requires all collecting officers and all officers who .hold public money to give bond with good security for the faithful performance of the duties of their office and faithfully to account for all monies coming into their hands.
Section 89-809 places upon the duty of the "proper authority" to fix the amount of the bond.
I am of the opinion under this chapter of the code the Clerk of the Supreme Court is required to give a bond and that the Supreme Court has the proper authority to fix the amount of the bond and approve the same.

808
STATE TREASURER-Authorized to pay to widows of Senators who die during session accrued mileage and per diem, or if no widow to children
March 11, 1985 Hon. George B. Hamilton State Treasurer State Capitol Dear Mr. Hamilton:
In reply to your verbal request, as to your authority to pay the per diem allowance and mileage which had accrued at the time of the death of Senators George H. Carswell on February 10, 1985, and Charles C. Fulghum on February 3, 1935, as well as the amounts due for the whole session, for mileage and per diem, I refer you to Section 47-109 of the Code of Georgia of 1938.
This Section provides: "If any member of the General Assembly shall die during the
session or afterwards without having received the whole or any portion of his pay, the amount due for the whole session shall be paid to the widow of the deceased, and if there shall be no widow, in like manner to the children." Under this section, I am of the opinion that you would be authorized to pay to Mrs. Charles C. Fulghum, the widow of Senator Fulghum, deceased, such accrued amounts, and the amounts due for the whole session as per diem and mileage; and you would likewise be authorized to pay to Mrs. Ellen Carswell Simmonds, as administratrix of the estate of Honorable George H. Carswell, deceased, for distribution to the children of the late Senator Carswell.
TREASURY-Disposition of funds derived from a deed of conveyance to certain property in the City of Augusta, which was deeded to the Roman Catholic Society by the Trustees of the Richmond Academy on April 16, 1812
Aprill7, 1985 Hon. George B. Hamilton State Treasurer State Capitol Dear Mr. Hamilton:
I have your letter of April 16th with reference to the fund of $100.00 paid into the State Treasury by the Trustees of Richmond Academy pursuant to a resolution approved March 9, 1935.
This resolution authorized the Governor to make to the Trustees of the Roman Catholic Society of Augusta, a corporation, a deed of conveyance to certain property in the City of Augusta, which was deeded to the Roman Catholic Society by the Trustees of the Richmond Academy on April 16, 1812.
I have examined the resolution and the old Act of the General Assembly under which power to convey this land was conferred upon the Trustees of the Richmond Academy. I am of the opinion that

309
the conditions of the original grant did not reserve title to the State, or reserve to the State any reversionary interest in the property. This is true, for the reason that the grant by the Trustees of Richmond Academy was for charitable purposes, and under the doctrine of cy pres the purposes of the trust could be served by an appropriation of the property to similar charitable purposes. Accordingly, I am of the opinion that the remedy of the State or the grantors in the deed, in case the property should cease to be used for the purposes for which it was granted, would be to sue for a breach of the covenant or compel the grantees to use the property for other similar charitable purposes. There could be no reversion to the State or to the grantor in the deed so long as a court of equity could enforce the trust by application of the doctrine of cy pres.
For the reason stated above, I am of the opinion that the resolution of the General Assembly, and the conveyance made pursuant thereto, did not amount to a sale of State property within the meaning of the Constitution, but that the State has simply waived a right which it might have had to enforce a covenant according to its terms, or, by recourse to a court of equity, compel the application of the property granted to the purposes for which the trust was granted.
I am, therefore, of the opinion that this fund of $100.00 should be placed in the general funds of the Treasury, and that it is not required to be applied to the bonded indebtedness of the State.
PUBLIC DEBT-Payment of interest on public debt
December 30, 1935 Hon. George B. Hamilton State Treasurer State Capitol My dear Mr. Hamilton:
I have your oral request for my opinion as to whether you are authorized to pay the interest on the public debt as of January 1, 1936. You state that all of this interest was earned in 1935 and that you have in hand, or will have in hand, during 1935 sufficient funds . derived from the taxes levied and collected in 1935 to pay the interest on the public debt earned in 1935 and that you will not have in hand on January 1, 1936, any moneys levied and collected in 1936 for the payment of this interest.
Section 87-113 of the Code of 1933 provides as follows: "An amount of money shall stand annually appropriated suffi-
cient to pay the principal and interest of any bonded debt of the State coming due during the year. Any surplus in the State Treasury after allowing for all the annual charges against it, including such claims, is likewise appropriated to the same object." In my opinion the Section of the Code just quoted meets the requirements of the Constitution of this State, and authorizes the payment of this interest.

310
STATE DEPOSITORIES-Acceptability by State Treasurer of certain bonds guaranteeing State deposits in banks
June 16, 1936 Hon. J. B. Daniel State Treasurer State Capitol Dear Mr. Daniel:
Answering your inquiry of recent date, I beg to advise that bonds of the Federal Farm Mortgage Corporation, dated May 16th, 1934, and due l\fay 15, 1949, which bonds are fully and unconditionally guaranteed, both as to interest and principal, by the United States Government, may be accepted by the State Treasurer as collateral, to cover State funds on deposit in State depositories to the extent authorized by the Federal law covering Federal Deposit Insurance Corporation.
WELFARE-County authorities without authority to levy a tax to help build and maintain a district hospital
July 18, 1935 Hon. Thomas B. Mimms Acting Executive Secretary State Department of Public vVelfare 22 Capitol Square Dear Mr. Mimms:
I have yours of the 23rd instant requesting an opmwn on the legality of one county spending its funds to help erect a district hospital in an adjoining county for the use of both counties for charity and pay patients.
Article 7, Section 6, Paragraph 2 of the Constitution of this State provides the purposes for which the General Assembly may delegate to a county the right to levy a tax. See Section 92-3701 of Code of Georgia of 1933.
In construing these provisions of the Constitution, the Supreme Court, in the recent case of Griener v. Board of Commissioners of Bulloch County, 170 S. E. 118, held:
"Building and equipment of hospitals for sick convicts and indigent poor with limited facilities for pay patients by use of proceeds of Highway Department Refunding Certificates issued to counties under statute, is a proper county use not violative of statute or constitutional provision limiting taxing powers of counties, in view of the constitutional authorization for delegation by General Assembly to counties of right to levy taxes to support prisoners and paupers and provide for necessary sanitation." Under this decision it seems well settled that the county authorities could levy a tax to erect a hospital for the care of the sick, and indigent paupers of the county. However, I do not think that the constitutional provision above referred to nor the decision in the Griener case supra, could be interpreted so as to extend the authority

311
of the county authorities of Spalding County to levy a tax in said county for the purpose of erecting a hospital in Upson County for the care of the indigent, disabled and sick paupers of Spalding County. In other words, I think that there is an implied limitation in Article 7, Section 6, Paragraph 2 of the Constitution that powers of taxation delegated to any county must be exercised within the limits of said county, and the funds derived from the levy of such taxes under the delegated authority, must be expended within the county where such taxes are levied.
The power to build and repair public buildings and bridges delegated to counties must, by necessary implication, be the public buildings and bridges of the particular county in question. The authority to levy a tax for the support of paupers is limited to the support of the paupers of the particular county in question, etc.
Although it is true that certain savings might be effected by the building of one hospital large enough to serve several counties, nevertheless, I am of the opinion that under the Constitution, only the county in which such hospital was built would have the authority to levy taxes for the building and maintenance of the same.
WELFARE-Construction of law dealing with organization of Juvenile Courts
December 8, 1936 Hon. H. B. Mays, Jr., Director State Department of Public Welfare 22 Capitol Square :My dear Mr. Mays:
Yours of the fifth instant asking certain questions with reference to the organization of juvenile courts has been received.
I will deal with each question contained in your letter separately. Q. 1. Is it legal in all counties of less than 60,000 population for the Superior Court Judge to appoint without recommendation of the grand jury a city court judge as Judge of the Juvenile Court? A~ Section 3 of the Act approved August 19, 1916, as amended by the Act approved March 22, 1935, (Ga. l,aws 1935, pp. 399-401) provides:
"In all counties having a population of less than 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 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." This provision of the Act of 1935 must be construed in the light of the decision of the Supreme Court in the case of Wages v. Morgan, 174 Ga. 158, in which it was held in substance that the designation of any existing court of record to act and be known as the juvenile court in counties having a population of less than 60,000 violates

812
Article 6, Section 9, Paragraph I of the Constitution requiring uniformity in the jurisdiction, powers, proceedings and practice of all courts or officers invested with judicial power (except city courts) etc. In this case the court was dealing with the designation of the Judge of the Court of Ordinary as a Juvenile Court Judge, and held that such designation violated the above stated provision of the Constitution.
Since no uniformity is required as to city courts under said provision, I am of the opinion that in counties having a population of less than 60,000 the judge of the superior court can designate the judge of a city court to act as juvenile court judge, and that such designation may be made without the recommendation of a grand jury. Since the judge of a constitutional city court is not a county officer, but is a State officer, the court over which he presides being part of the State judicial system, and a judicial court judge being likewise a State officer, the provisions of Section 89-103 of the Code prohibiting the holding of more than one county office by any person are not violated.
Q. 2. Is it legal in all counties of less than 60,000 population for the Superior Court Judge to appoint without recommendation of the grand jury an Ordinary as Judge of the Juvenile Court? How would Section 89-103 affect this situation?
A. In view of the decision of the Supreme Court in Wages v. Morgan, supra, the designation of the Ordinary of a county as judge of a juvenile court would violate the provisions of the Constitution requiring uniformity of all courts except city courts.
Q. 3. Can a juvenile court be legally set up in any county of less than 60,000 on the recommendation of one grand jury; (or does it take the recommendation of two grand juries?) and the appointment of properly qualified person by the Judge of the Superior Court?
A. An effort was made in the Act of 1935 to amend Paragraph A of Section 3 of the Act of 1916 requiring the concurrent recommendation of two successive grand juries by providing that in counties having a population of less than 60,000 upon the recommendation of "a grand jury thereof," a special juvenile court could be established. However, in the enacting clause of this section of the Act of 1935 it appears that the requirement that two successive grand juries recommend the establishment of such a court was left intact and still remains the law. It therefore takes the recommendations of "two successive grand juries" before a special juvenile court may be set up and "the judge of the superior court shall appoint a properly qualified person, of high moral character and clean life, selected for his special fitness for work with delinquent and neglected children, to be the judge of the juvenile court."
Q. 4. Is it necessary for the Superior Court Judge in counties of less than 60,000 to appoint as Juvenile Court Judge an attorney with three years practice? If not, what are the necessary qualifications of the person appointed as Juvenile Court Judge?
A. There is nothing in the statute requiring the judge of the superior court, where a special juvenile court is set up, to appoint as

313
juvenile court judge, an attorney with three years practice. The only necessary qualifications of such a judge are those set out in Section 6 of the Act of 1935 as follows: The person appointed must be properly qualified, of high moral character and clean life, selected for his special fitness for work with delinquent and neglected children.
Q. 5. Is it necessary for the Commissioners to approve payment of salary in order that the Judge or the Probation Officer be paid?
A. With reference to the payment of the salary of the probation officer in juvenile courts in counties of less than 60,000, the law provides that they shall be paid in an amount named by the court "and approved by the county commissioners."
Q. 6. If the Commissioners approve a certain salary and later wish to withdraw this approval, is it possible for them to do so and how would they go about it?
A. I am of the opinion that after the commissioners approve a certain salary, should they later desire to withdraw their approval, they may do so by a proper resolution to that effect.
Q. 7. If the Superior Court Judge appointed as Judge or Probation Officer a person who is not acceptable to the Commissioners and to other people interested in social work of the community, is there any way to remove the Judge or the Probation Officer except on order of the Superior Court Judge?
A. I think that the answer to this question is "No."

314

GENERAL INDEX

Page

ACCOUNTANTS Professional taxation, who subjecL..........................................................
AGRICULTURE Appropriation made to department for use in combatting screw worm
Commercial fertilizers, sale of_---------------------------------------------------------Commissioner may u~e available funds to establish and operate
farmers' markets...-----------------------------------------------------------------------------------Margarin, sale of_--------------------------------------------------------------------------------------Mixed feeds, branding..------------------------------------------------------------------------------Veterinarian, authority of Commissioner to pay salary.....___________________
ALCOHOLIC BEVERAGES
Malt Beverages, Act of 1935_---------------------------------------------------------------Wine Iaws, summary oL............----------------------------------------------------------------APPROPRIATIONS Availability of, made to Department of Agriculture to combat screw
worm_--------------------------------------------------------------------------------------------------------Construction of Act diverting funds from Highway Department to
General Treasury for payment of past due appropriations................ Funds out of which special appropriations to Regents may be paid....
Validity of Regents' appropriations..-------------------------------------------------------ARCHITECTS
Nonresidents, rules and regulations governing_____________________________________ ARCHIVES AND HISTORY
Director may not remove records from department..______________________________ Secretary of State authorized to name assistants and employees........ ATTORNEY GENERAL Duties in connection with General Assembly............................................ AUTOMOBILE ACCESSORIES Occupation tax on dealers in___________________________________________________________________
BANKING Taxability of preferred stock held by R. F. C--------------------------------------- Taxation, what banks subject to income taxation...-------------------------------
BANKS Chartering, duties of Secretary of State in connection with________________
BARBERING Authority of State Board of Barber Examiners to specify equipment to
be used in teaching____---------------------------------------------------------------------------Barbers, how reinstate<L....-------------------------------------------------------------------------Renewal of license where applicant does not practice for year............
BOARD OF CONTROL
Juvenile courts.... ----------------------------------------------------------------------BONDS
Counties, school districts and municipalities issuing bonds must register the bonds with the Secretary of State______________________________________
llRANDING
l\fixed feeds ......-------------------------------------------------------------------------------------------BUILDING AND LOAN ASSOCIATIONS
Occupation tax on presidents.....----------------------------------------------------------------Occupation tax on presidents, when subject.. ........----------------------------------
CHIROPODY Chiropodist subject to professional taxes............-------------------------------------Construction of Act regulating___________________________________________________________________
Licensing of chiropodisL....-------------------------------------------------------------------------
CITIES Baby bonds, taxabilitY------------------------------------------------------------------
COMMISSIONER OF DEEDS
Appointment.. ----------------------------------------------------------------------- CONSTABLES
Powers and duties_-----------------------------------------------------------

271 116
14 21 28 17 22
25 17
116 112 137 136 204 305 306 109 273
27 263 300
205 ii!05 199
27
299
17
272 146
208 206 208
30
134
132

815
CORPORATIONS Bonds issued for circulation in another State not subject to certain code sections--------------------------------------------------------------------------------------------- 135 Charter of telegraph company may be amended to include what________ 302 Charters, how long continued--------------------------------------------------------------------- 298 State~ent file~ with Secreta~y of State relative to issuance of bonds by pubhc or pnvate corporations_____________________________________________________________ 122
COUNTY Bond election, who entitled to vote--------------------------------------------------------- 44 Bonds, registration of_------------------------------------------------------------------------------- 299 Health Commissioner, salary, how fixed___________________________________________________ 160 Tax may not be levied to build and maintain district hospitaL__________ 310
COUNTY AUTHORITIES May levy a tax or make an appropriation for a county hospitaL__________ 45
COUNTY COMMISSIONERS Cannot also be member of county board of education____________________________ 87 May levy a tax for salary of county farm agent.-------------------------------------- 87
COUNTY WARRANTS Acceptability for payment of taxes____________________________________________________________ 48 Not accepta hie in payment of taxes__________________________________________________________ 297
CRIMINAL PROCEEDINGS Malt Beverages Act, violation of, how punishable________________________________ 261
EDUCATION Barrett-Rogers fund, use of--------------------------------------------------------------------- 52 Bonds, registration of______-------------------------------------------------------------------------- 299 Bond of Secretary-Treasurer of independent district filed with State Superintendent__________________________________________________________________________________________ 51 Children may enter school, when_______________________________________________________________ 78 Child living on district line shall attend which schooL__________________________ 76 Computation of two-thirds majority of voters in bond election____________ 67 Consolidation of bonded and nonbonded districts_______________________________ 64 Consolidation of bonded and nonbonded districts, election of trustees, etc------------------------------------------------------------------------------------------------------ 83 County authorities authorized to purchase county school bonds as investment for sinking fund---------------------------------------------------------------------- 81 County board, authority to employ teachers___________________________________________ 84 County board may employ and pay county farm agent..______________________ 87 County board, which grand jury may select members____________________________ 84 County board not required to carry liability insurance on school buses 49 County board member cannot serve as county commissioner________________ 87 County board member not disqualified to serve as district trustee________ 80 County farm agent, employment________________________________________________________________ 87
County line schools, operation.----------------------------------------------------------------- 71 District bond election, who qualified to vote_--------------------------------------- 73 Diversion Act construed..---------------------------------------------------------------------------- 56 Diversion funds, disbursement____________________________________________________________________ 54 Division of local tax district, local tax election not necessary___________ 63 Division of local tax district, trustees, how elected______________________________ 63 Election contest, district trustee, who hears________________________________________ 71 Free textbooks, State not authorized to furnish to children enrolled in
private schools___ ..................................................................................... 153 Funds for erection of school buildings, what may be used.................... 77 Georgia Military College is independent school district........................ 68 Indebtedness, refinancing__----- 74 Military training in public schools_............................------------------------------ 72 School buses purchased with tax money belonging to county board.... 49 State board without authority to re-open case decided by it________________ 77 State Superintendent of Schools, duties in case of appeaL__________________ 61 State Superintendent, powers in appeaL .......------------------------------ 66 State Superintendent must issue commission to person certified as
member board of education.... ------------------------------------------------------------ 82

816
EDUCATION (Con'd)
State Superintendent without jurisdiction in matters not relating to school Iaw----------------------------------------------------------------------------------------------- 85
State Superintendent, duties under Oath of Allegiance Act..__________________ 60 Taxes, past due, collection and division..------------------------------------------------- 57 Trustee election in consolidated district, who qualified to vote____________ 48 Trustees not authorized to continue to serve after commissions expire SO Transportation of pupils within district, no charge for________________________ 68 ELECTIONS Bond elections, results, how determined______________________________________________ ___ 67
County bonds, who entitled to vote_------------------------------------------------- 44 District bond election, who qualified to vote------------------------------ 73 Justice of the Peace, when held and time for qualifying........................ 198 Justice of Peace, who furnishes supplies____________________________________________________ 155 Notice of contest does not prohibit Governor from declaring result.... H!3 Trustees in consolidated school district, who qualified to vote____________ 48 Trustee, contest, who hears____------------------------------------------ 71 EMBALMING State Board of Embalmers without authority to give life licenses____ --- 203 EXTRADITION Powe~ of Go:v~rnor where lunacy proceeding pending in this State
agamst fugitive-------------------------------------------------------------- 138 FARMERS MARKETS
Commissioner of Agriculture authorized to use any funds of the department which may be available in establishing and operating...... 21
FEEDS i :Mixed, branding.. ---------------------------------------------------------------------------- 17 FERTILIZERS
Commercial, sale of_____-------------------------------------------------------------------- 14 FORESTRY
Acquisition of land for forestry purposes__________________________________________________ 89 Department may acquire lands only for forestry purposes and un-
conditionally______________________________________________________________________________________________ 88 State nor lessee of swimming pool in State park required to keep life-
guard__________________________________________________________________________________________________________ 89 GAME AND FISH
Fines and forfeitures, distribution.... --------------------------------------------- 102 Fishermen on salary not subject to peddler's license______________________________ 104 Fur dealer, licensing of nonresident___________________________________________________________ 101 Impersonation of an officer, what constitutes___________________________________-__ 103 L~ase lands only ~or cultivati<?n o_f oysters, authorized to........-------- 104 License on nonresidents constitutionaL____________________________________________________ 95 No conflict in laws requiring license for commercial deep sea fishing
and peddling fresh water fish..----------------------------------------------------------- 97 Nonresident mg,y not fish in private pond without license____________________ 101 Official hearing by Commissioner, what constitutes.----------------------- 96 OPryessteerrveb,othtoowmse,straigbhlitssheodf...l.e.s. _s_e__e__._._._._._._._._._._._._._._._._._._._._._._._._._._._._._.__._._._._._._._._._._-_-_-__-___-_-_-_-__-_-__-_-_-__-_-_-_-_ 10942 Preserve for game, procedure for establishing._________________________________________ 100 Transportation of deer__ ------------------------------------------------------------------------ 98 Warden, authority to search and arrest without a warrant_______________ 99 Walburg Island, title to___--------------------------------------------------------------- 105 Use of wire bas\ets or seines in certain counties, Act unconstitutional 95 GENERAL ASSEMBLY Attorney General's duties in connection with General Assembly________ 109 Discharge of insane felony convict from State HospitaL______________________ 29 Refund of taxes, validity of resolution authorizing..-------------------- 148 Sections of code not repealed bY----------------------------------------------------- 34 GEORGIA REAL ESTATE COMMISSION Disposition of excess funds of commission...----------------------------------------- 200

817
GOVERNOR Authority to release surety on bond of ordinary...-- 129 Bonds issued for circulation in another State not affected by certain code sections.............................................................................................. 135 Commissioner of Deeds in another State, appointment by.................... 134 Discharge of insane convict from State HospitaL................................. 29 Extra?ition, Jl?Wer where lunacy proceeding pending in this State agamst fug1hve.......................................................................................... 138 No authority to modify lease by extending time for making improvements.......................................................................................................... 130 Notice of contest in election does not prohibit Governor from declaring result.............................................................................................. 123 Without authority to pardon a person before conviction.........._............ 152
HEALTH County Health Commissioner, salary, how fixed.................................... 160
HEALTH DEPARTMENT Professional taxes of employees................................................................ 158
HIGHWAY Liability for purchase of machinery_...................................................... 161 Refunding certificates Construction and validity of Act....-------- 139
HOSPITALS Taxation, conducted for charitable purposes, not subject.................... 288
ICE CREAl\! DEALERS
Occupation tax on_--------------- 284 ICE CREAM MANUFACTURERS
Licensing........................................................................................................ 20
INSANE CONVICTS How discharged from State HospitaL.................................................... 29
INSANE PRISONERS Authority of Governor to examine_........................................................ 220
INSURANCE Agent, examination of applicant for license as_-- 173 Agent, who must qualify as_____-- 194 Bond required of fraternal benefit society................................................ 178 Burial association issuing certificates for stated sum is insurance business_.................................................................................................. 198 Commissione~ mus~ ~pprove secu~ities deposit~d with State treasurer by compames wntmg workmen s compensatiOn.................................. 169 Companies may not invest in city script....------ 179 Contract issued by Georgia Protective Association is contract of insurance........................................................................................................ 166 Definition of insurance_.............................................................................. 166 Deposits under certain code sections_........................................................ 182 Deposit of Chicago Lloyds.......................................................................... 175 Deputy insurance commissioner, back salary_...................................... 151 Five-year commutation plan._.................................................................... 176 Fo_reign .~utual companies not required to insert Emergency Clause
m policies:;---.;;------;----- 168 Group Hosp1tahzatwn plan 1s msurance busmess.....-------------------- 190 Group insurance covering personal loans.................................................. 186 H. 0. L. C. bonds may be used as deposit under Code Section 56-317 174 Indemnities paid by foreign companies not qualified to do business
in Georgia subject to penalty.......................... ----- 187 Independent Fraternal Union doing insurance business and subject to
supervision....................----------------------------- 170 Investment of capital stock of fire insurance companies........................ 185 Jeweler guaranteeing to repair watches for a certain time not in-
surance........................................................................................................ 184 Liability on school buses.............................................................................. 49

818 INSURANCE (Con'd)

Mutual companies, qualification to underwrite officers bonds____________ 143,145 Mutual fire companies, new qualifications, etc. where business en-

larged--------------------------------------------------------------------------------------------------------- 189 Organization of a co-operative or mutual insurance company________________ 19~ Payment of gross premium taxes required of insurance companies________ 169 Plate glass insurance written by mutual insurance companies is limited 196
Publication of semi-annual statement by companies.. ---------------------------- 150 Qualification to do casualty business_______________________________________________________ 146

Qualification of fraternal benefit society--------------------------------------------------- 179 Qualification of company to do workmen's compensation business in

Georgia------------------------------------------------------------------------------------------------------- 177 Reciprocal insurance companies, qualifications________________________________________ 191 Southeastern Cash Night Indemnity Company doing insurance busi-

ness...----------------------------------------------------------------------------------------------------------- 195 Similar names not matter under jurisdiction of Insurance Commis-
sioner------------------------------------------------------------------------------------------------------- 186 Trust_f.und of .su.bscription price divided among subscribers who die
durmg year ts msurance----------------------------------------------------------------------- 166 JURY SCRIPT
Acceptability for payment of taxes.. --------------------------------------------------------- 48 JUSTICES OF PEACE
Constable, powers and duties.------------------------------------------------------------------ 13~ Election, Governor does not furnish supplies, duty of the ordinary______ 155 Election, when held, and time for qualifying___________________________________________ 198

How removed from office-------------------------------------------------------------------------- 134 JUVENILE COURTS
GeneraL.------------------------------------------------------------------------------------------------------- ~7 Organization, construction of law dealing with________________________________________ 311
LABOR Commissioner of Commerce and Labor and Chairman of Department of Industrial Relations, powers and duties...----------------------------- 16~ Records of department of Industrial Relations not open to inspection

by public.........---------------------------------------------------------------------------------------- 164 Validity of criminal provision in Act not included in code___________________ 16~

Workmen's Compensation Insurance............------------------------------------------- 164 LUMBER DEALER
Defined under Act taxing____________________________ --------------------------------------------- ~85

Occupation tax on dealers and brokers____________ ----------------------------------------- ~86

LUNACY COMMISSION

Expenses, how paid___________________________________________________________________

46

MARGARIN

Sale oL.-------------------------------------------------------------------------------------------

~3

MARKETING ACT OF 1920

Co-operative marketing act unconstitutionaL--------------------------------------- 303

MALT BEVERAGES Act of 1935-------------------------------------------------------------------------------------------- ~5 Collection of taxes, duty of State Revenue Commission________________________ 1~5

Definition of "governing authority" as used in AcL.----------------------------- ~50

Punishment for violation of Act-------------------------------------------------------------- 261 Revenue Commission without authority to recognize license issued by

county authority for sale of beer within city limits.--------------------------- 255

MILEAGE TAX How computed ______________________________ -------------------------------------------------------------- 4\!

MONUMENTS

Occupation tax on dealers iiL_____ ------- ----------------------------------------------------- 286 MOTOR CARRIERS
Issuance of stocks and bonds______________________________ ------- ---------------------------- 241

MOTOR FUEL TAX State agency using Federal funds must paY----------------------------------------- 43

319
MOTOR VEHICLES Where classification changed, new license tag necessary........................ 268
Kind of license tag necessary.. -------- !l53 Registration, interpretation of laws governing__----- !l58 MUNICIPALITIES
Bonds, registration of_------------------- 299 NAVAL STORES
Fees of inspectors appointed by municipalities and ordinaries.............. !l12
Fees of Supervising Inspector___-------------------- 212 Supervising Inspector not required to pay fees collected by him into
State Treasury----------------------------------' 213 NULLA BONA ENTRIES
Fees for, how paid__.................................................................................. 32 OATH OF ALLEGIANCE ACT
Duties of State Superintendent of Schools under.................................... 60 OFFICERS
Bonds, qualification of mutual companies to underwrite........................ 148,145 OPTOMETRY
License, who subject to................................................................................ 201 ORDINARY
Authority of Governor to release surety on bond.................................... 129 Fees in counties of less than 40,000_.......................------------------ 46 Lunacy commission, expenses, how paid__.............................................. 46 Not authorized to exempt indigent peddlers from State occupation tax 287
Registration of businesses with_---------------------- 289 OYSTER BOTTOMS
Rights of lessee......... -------------------- 92 PARDONS
Governor without authority to pardon a person before conviction........ 152 PENSIONS
Commissioner without authority to make approval of pension ret-
roactive......------------------------------------------ 2!l9 Disposition of pension accrued at time of pensioner's death................ 230 Funeral expenses where pensioner left estate.............................................. 227 Funeral expenses where pensioner out of State at time of death............ 228 Pensioner not entitled to pension accrued before admission to State
HospitaL ...........,........................................................................................ 228 Pensioner not entitled to pension while confined in State HospitaL...... 227
Widow of veteran entitled to pension....-------------------- -------- 227 PLUMBER
Taxed in county of residence....................----------------------- 288 PRINTING
Contract for, exceeding $500.00 must be advertised................................ 226 'State Supervisor of Purchases must let contract for printing exceed-
ing $500.00................................................................................................. 226 PRISON COMMISSION
Authority of Governor to examine prisoners for insanity.................... 220 Computation of sentences............................................................................ 215 Computatiqn of concurent sentences.......................................................... 216 Construction of contract.............................................................................. 217 Fees of clerks for recording paroles, not liable for___............................ 219 Indeterminate sentence law construed__................................................ 224 Time off for good behavior by prisoner, how computed........................ 224 Without authority to purchase additional lands for penal use.............. 220 PUBLIC DEBT Payment of interest on................................................................................ 309 PUBLIC PROPERTY
No person can acquire a lien against_------- 246 State has no reversionary interest in certain property in Augusta........ 110 PUBLIC SERVICE COMMISSION Certificate of convenience and necessity, rights under, upon death of
holder.......................................................................................................... 239

SflO

PUBLIC SERVICE COMMISSION (Con'd)

Is~uance <_>f stocks and bonds by motor carriers, power and authority

m relation to.............................................................................................. 241

Terminal and wharfage charges at ports, authority to fix.................... 232

Without authority to make advanced investigation and approve or

disapprove extension of line of railroad ........ ------------------------------------ 237 Without authority to disclose information contained in accident

reports_-~--. 23() Without authority_ to re9p.i_re union bus station to permit another

operator to use Its facihbes.................................................................... 235

Without authority to require establishment of farm crossings by

railroads...................................................................................................... 231

PURCHASES

Supervisor must let contracts for printing exceeding $500.00________________ 226

RADIOS

Occupation tax on dealers in__.................................................................. 273

REGENTS

Authority to convey real estate.................................................................. 244

Disposition of insurance money where building destroyed by fire........ 244

Public property, no person can acquire lien against................................ 24G

Rights of parties under contract with teacher.......................................... 245

Without authority to pay hospital bill of student injured in accident.... 243

SECRETARY OF STATE

Chartering banks, duties in connection with............................................ 300

Registration of bonds.................................................................................... 299

SENATORS

Widows entitled to accrued mileage and per diem, when Senator dies

during session__................................................................................'...... 308

SENTENCES

Computation oL............................................................................................ 215

Computation of concurrenL........................................................................ 21G

Indeterminate sentence law construed._................................................ 224

SHRIMP OR OYSTER PACKING OR SHIPPING

Occupation tax on__.................................................................................... 283

STATE DEPOSITS

Bonds guaranteeing...................................................................................... 310

STATE HOSPITAL FOR INSANE

Absentees from HospitaL.........................................................................

30

STATE PROPERTY

Disposition of fund derived from sale of.................................................. 308

STATE REVENUE COMMISSION

Duty to collect beer taxes...................................................,........................ 125

Without authority to recognize license issued by county authority for

sale of beer within city limits.................................................................. 255

STREET CARNIVALS

Occupation tax where operated at agricultural fairs................................ 149

SUPREME COURT

Clerk required to give bond........................................................................ 306

TAXATION

Ad valorem, five-year exemption, who entitled to.___............................ 291

Ad valorem, what concerns entitled to five-year exemption.................. 293

Baby bonds of cities taxable by State_.................................................... 30

Beer taxes, collection, duty of State Revenue Commission..................... 125

Certain Code sections not repealed by General Tax Act........................ 84

Collection and division of past due taxes.................................................. 57

Collector not authorized to accept county warrant in payment of taxes 297

Collector not authorized to accept county warrants in payment of

taxes but may accept jury script............................................................ 48

Commissions of collector for collection of delinquent special or oc-

cupation taxes............................................................................................ 251,289

Commissions of collectors on professional taxes.................................... 36

8~1
TAXATION (Cont'd)

County purposes include erection of county hospitaL.......................... 45

Date taxes past due when December 20th falls on Sunday..- ................ 295

Dormant tax fi. fas., how revived.............................................................. 33

Disabled persons, who exempt........-c-- 266 Exemption, what veterans exempt from special taxes............................ 247

Fees for nulla bona entries, how paid........................................................ 32 Gasoline tax, State agency using Federal funds must pay State tax.... 43 Gross premium tax required of insurance companies............................ 169 Ice cream manufacturers, licensing............................................................ 20

Income What banks subject..............................:. 263 How collected............................................................................................ 269 Refund........................................................................................................ 156 Nonresident steamship company doing business in Georgia subject 265

Records of State not available to city officials.................................-- 252

Records not subject to inspection by city tax officials....................._. 129

Salary of Federal Reserve Agent not subject.--- 246 Trust fund income taxable...................................................-- 255 Lien of special taxes...................................................................................... !47

Lien of State and county taxes for prior year not divested by sale under tax fi. fa., for later year----- 290
Malt Beverages, definition of governing authority.................................. 250 1\fileage tax, how computed_..........................................................- 42

Motor vehicles Classification changed, new tag necessary......_.................................... 268

~!~~t~~~i~~~-~~-:-~-~--~~~~-~~-~-~:-~-~~::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

253 258

Occupation

Building and loan association presidents---- 27'1. Building and loan association presidents, not subject when............ 146

Corporations subject................................................................- '1.80 Dealers in monuments.............................................................................. 286 Domesticated foreign corporations, who subject...........- '1.8'1.

Foreign corporation engaged exclusively in interstate commerce

not subject.............................................................................................. 281

Georgia Rural Rehabilitation Corporation subject to corporation tax.....................................- 279
Hospitals conducted for charitable purposes not subject.................... 288

Lumber dealers and brokers.................................................................... 286

Lumber dealer defined.............................................................................. 285

Ice cream dealer........................................................................................ 284

No refund where tax paid and then goes out of business...........--- 41

Ordinary not authorized to exempt indigent peddlers...................- ..- '1.87

Packing or shipping shrimp or oysters.................................................. 283 Plumber pays tax in county of residence.............................................. 288

Radio dealers, automobile accessories, etc._........................................ 273

Street Carnivals operated at agricultural fairs...._ .............................. 140

The RFC Mortgage Company subject to State tax on foreign

corporations............................................................................................ '1.77

Veterans exemption from certain taxes_................................................ !i-75

Personal property of soldiers stationed at fort_ ................................... 40

Poll taxes due by women_....................................................................- U7

Procedure for reimbursement of certain taxpayers.................................. 155

Preferred stock of banks held by RFC................- .................................... 27

Professional tax on doctors and accountants, who subject................._. 89

Professional, interpretation of law taxing accountants, what ac-

countants subject.. ...........--- 271 Professional tax on chiropodists................................................................ '1.08

Professional taxes of employees and officials of Health Department.... 158

TAXATION (Con'd)
Professional taxes, issuance of fi. fas., .and who subject thereto............ ~49 Professional taxes, persons subject to, even though on salary............ 270 Professional men not required to register with ordinary........................ 35 Professional taxes, who subject______...................................................... 35 Professional taxes, who subject and who exempt.................................... 37 Professional taxes, where payable.............................................................. 40 Registration of businesses with ordinary............................................,..... 289 Refu!ld, va~idity of resol!ltion au!horizing.;.............................................. 148 Receiver Without author1ty to ra1se valuaboiL........................................ 37 Sale of property under city tax fi. fa......................................................... 296 Veterans exemptions, construction of act.................................................. 259 TREASURER Acceptability of certain bonds guaranteeing State deposits in banks.... 310 Disposition of funds derived from sale of property................................ 308 Fees of Supervising Inspector of Naval Stores not required to be paid
into.............................................................................................................. 213 Public debt, paying of interest on.............................................................. 309 Widows of Senators who die during session, or if no widow, children,
authorized to pay...................................................................................... 308 VETERINARIAN
Authority of Commissioner of Agriculture to pay salary of................ 22 VETERANS
Constru~tion of acts ~xempting .veterans from taxation........................ 259 ExemptiOn from certam occupation taxes................................................ 275 Not exempt from license fees on barbers and real estate agents_...... 199 What veterans exempt from special taxes................................................ 247 VETERINARY EXAMINERS Who constitutes boarL.............................................................................. 209 WALBURG ISLAND Title to............................................................................................................ 105 WELFARE County without authority to levy tax to build and maintain district
hospitaL...................................................................................................... 310 Juvenile courts, construction of law dealing with organization.......... 311 WESTERN & ATLANTIC RAILROAD Construction of Lease Act_........................................................................ 117 Rights of lessee under Lease Contract...................................................... 118 WHARFAGE AND TERMINAL CHARGES Authority of Public Service Commission to fix........................................ 1!32 WINE Summary of Act............................................................................................ 17