OPINIONS of THE ATTORNEY GENERAL 1939-1941 ELLIS G. ARNALL Attorney General MARSHALL L. ALLISON, Compiler Printed by CURTISS PRINTING CO., INC. ATLANTA REGISTER OF DEPARTMENT OF LAW 1939-1941 ELLIS G 0 ARNALL Attorney General MARSHALL L. ALLISON EMIL J 0 CLOWER DuKE DAVIS LAMAR MURDAUGH HERSCHEL E. SMITH BROADUS B. ZELLARS Assistant Attorneys General c. E. GREGORY, JR. CLAUDE SHAW ATTORNEYS GENERAL IIenry P. Farrer__________________________________________________________ 1868-1872 N. J. Hammond _________________________________________________________ 1872-1877 Robert N. Ely ________________________________________ .. ___________________ 1877-1880 Clifford L. Anderson _____________________________________________________ 188G-1890 George N. Lester_ _______________________________________________________ 189(}-1891 VV. A. Little ______________________________________________________________ 1891-1892 J. M. TerrelL ____________________________________________ -------------- _1892-1902 Boykin VVright_ ____________________________________ . _____________________ 1902-1902 John C. IIart_ ___________________________________________________________ 1902-1910 IIewlett A. IIalL ____________________________ . ____________________________ 191(}-1911 Thos. S. Felder __________________________________________________________ 1911-1914 VVarren Grice_____________________________________________________________ 1914-1915 Clifford VValker __________________________________________________________ 1915-1920 R. A. Denny _____________________________________________________________ 192(}-1921 George M. Napier ________________________________________________________ 1921-1932 Lawrence S. Camp _______________________________________________________ l932-1932 M. J. 1reomans __________________________________________________________ 1933-1939 Ellis G. ArnalL _____________________________________________ . ____________ 1939-1941 The opinions and index in this volume are arranged in conformity with the alphabetical arrangement and subject titles used in the Georgia Code of 1933 and Georgia Code Annotated. PART I. Opinions of the Attorney General and index.......... . 5-696 PART II. Opinions of Marshall L. Allison and index............ A-1-A-56 PART III. Opinions of Emil J. Clower and index .............. B-1-B-14 PART IV. Opinions of Duke Davis and index ................. C-1-C-19 PART V. Opinions of Herschel E. Smith and index............. D-1-D-13 PART VI. Opinions of Broadus B. Zellars and index ............ E-1-E-46 PART VII. List of appellate court cases...................... F-1-F-6 Compiler's Note: During the year 1939 the Attorney General and the Department of Law rendered 1380 opinions. In 1940, 2130 opinions were rendered. For the two year period 3510 opinions were rendered. Of this total, 679 opinions have been selected as comprising those which are possibly of the most general interest and which might prove most useful for reference and for the guidance of public officials of the State and its political subdivisions. In the back of this volume is a list of cases in the appellate courts in which the Attorney General and the Department of Law appeared. The list of 136 cases does not include the large number of cases handled by the Attorney General's office in the trial and lower courts during the two year period ending January 1, 1941. 5 AGRICULTURE-Commissioner's term ends December 31st. December 11, 1940 Honorable E. D. Rivers Governor I have the letter of December 9, 1940, signed by HonorableS. Marvin Griffin, Secretary Executive Department, as follows: "Honorable Columbus Roberts, Commissioner of Agriculture, State of Georgia, desires a ruling from your office as to when his term of office expires so that he may surrender same to his successor at the proper time as prescribed by law. The Governor will appreciate this information as early as possible so that he may let Mr. Roberts hear from him. " The office of Commissioner of Agriculture is not an office provided by the Constitution, but it is one of statutory origin. By an Act of the General Assembly of Georgia approved February 28, 1874 (Ga. Laws of 1874, pp. 1-8) the Governor was authorized to establish a Department of Agriculture. That Act provided that the Commissioner of Agriculture should be appointed by the Governor, by and with the advice and consent of the Senate. The term of office of said Commissioner was fixed at four years from the date of his appointment. The next Act of the General Assembly relating to the Commissioner of Agriculture was the Act approved September 17, 1889 (Ga. Laws of 1889, pp. 63-64), which struck the provisions of the Act of 1874 and certain sections of the Code of 1882 relating to the four year term and to the appointment by the Governor. Said Act of 1889 amended the said law and code sections, and among other things provided: "Said Commissioner of Agriculture shall be a practical farmer, and shall be elected by persons qualified to vote for members of the General Assembly, at the same time, in the same manner and under the same rules and regulations as the Governor and State House officers are elected, and shall hold his office for two years and until his successor is elected and qualified, unless removed in the manner now prescribed by law for the removal of officers of the State government. . . . The first election under this Act shall occur at the next election for Governor and State House officers, and the term of office of the person so elected shall begin when the term of the present Governor of this State expires, at which time the term of the present Commissioner of Agriculture shall expire. " The next Act of the General Assembly relating to the Commissioner of Agriculture was the Act approved August 20, 1927 (Ga. Laws of 1927, p. 207), which was: "An Act to fix the time of the present Commissioner of Agriculture and of succeeding Commissioners of Agriculture, and for other purposes. "Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, that the term of office of the Commissioner of Agriculture shall expire at midnight on December 31, 1928. "Be it further enacted that beginning .January 1, 1929, the term of office of the Commissioner of Agriculture shall be for a period of two years, or until his successor is elected and qualified. "All laws or parts of Jaws in conflict with this Act be and the same are hereby repealed. " 6 f f The next Act relating to the Commissioner of Agriculture was that approved February 5, 1935 (Ga. Laws of 1935, pp. 98-99), which amended Section 5-103 of the 1933 Georgia Code so that when amended said section should read as follows: r "The term of office of the Commissioner of Agriculture shall be for four years or until his successor is elected and qualified, unless removed in man- I ner now prescribed by law for the removal of officers of the State Govern- ment. In case of a vacancy in the office of the Commissioner of Agriculture, such vacancy shall be filled by appointment by the Governor, which ap- pointee shall hold the office until his successor is elected and qualified." The said 1935 Act further provides in Section 2 thereof: "This Act shall not affect the present term of the present Commissioner of Agriculture but his successor elected at the general election of 1936 shall hold office for four years as provided by said section of the Code as herein amended." The Book of Records of Commissions in the office of the Secretary of State sets forth the commissions of Honorable Eugene Talmadge, Commissioner of Agriculture for two terms. The first of the commissions there shown is dated January 1, 1929 and recites that: "This commission continues in force from Jan- uary 1, 1929 to January 1, 1931." The second commission of Honorable Eugene Talmadge, Commissioner of Agriculture, is dated December 15, 1930, and re- cites: "This commission continues in force from January 1, 1931 to January 1, 1933." (pp. 52 and 60 of the Records of Commissions in the office of Secretary of State.) The commission of Honorable Columbus Roberts, present Commissioner of Agriculture, is also recorded at page 88 of the Book of Records of Commissions in the office of Secretary of State. It shows that the commisswn was dated January 12, 1937. It recites: "That this commission continues in force from December 31, 1936 to December 31, 1940." The Book of Records of Official Oaths in the office of the Governor at page 45 thereof shows that Honorable Columbus Roberts on December 31, 1936 signed the oath as said Commissioner before Honorable Eugene Talmadge, Governor. Thus, it will be seen that the aforesaid Act of the General Assembly of 1927 fixed the term of office of the then Commissioner of Agriculture and succeed- ing Commissioners of Agriculture so that their terms should expire at midnight on December 31st of the year in which their terms ended. The records above referred to in the office of the Secretary of State and the Governor show that in fact and practice the term of the office of Commissioner of Agriculture ends on December 31st of the last year of his term. I am not unaware of the provisions of Sections 34-1303 and 34-2201 of the 1933 Georgia Code, which provide that the returns of the election for Governor, Secretary of State, State Treasurer, and Comptroller General, shall be sealed up by the managers, separately from the other returns, and directed to the President of the Senate and the Speaker of the House of Representatives, and shall be transmitted to the Secretary of State, who shall, without opening the same, cause the same to be laid before the Senate on the day after the two houses shall be organized, and at the same time the returns of the election for Governor are laid before the Senate, and they shall be transmitted by the Senate to the House of Representatives. It will be noted that these code sections refer only to the Governor, the Secretary of State, State Treasurer and Comptroller General. They do not name or specify the Commissioner of Agriculture. Neither does Code Section 34-2101 name the Commissioner of Agriculture. 7 Section 34-2202 of the 1933 Georgia Code reads as follows: "The returns of the elections of every other Statehouse officer required to be commissioned by the Governor shall be sealed up in a separate package and transmitted to the Secretary of State, whose duty it shall be to open the returns, consolidate the vote and declare the result and certify to the Governor the names of persons elected, and the Governor shall issue commissions to such officers as shall appear from the certificate of the Secretary of State to have been elected." It is my opinion that there is no provision of law requiring the returns of an election of the Commissioner of Agriculture to be transmitted to the General Assembly for canvass and consolidation. Therefore, it follows as my opinion that the term of the Honorable Columbus Roberts, present Commissioner of Agriculture of the State of Georgia expires on December 31, 1940. AGRICULTURE-Director of Markets, salary. July 26, 1940 Judge Gordon Knox Hazlehurst, Georgia Reference is made to the alleged claim of Hon. W. L. Stone for deficiency in salary. As I understand it, Mr. Stone contends that he was Director of Markets under Hon. Tom Linder's administration of the Department of Agriculture and, accordingly, is entitled to the difference between the salary he received and the salary fixed by the statute for the Director. If Mr. Stone was properly appointed, qualified, and if he served as Director of Markets, he was entitled to the statutory salary attendant to the office. However, the records in the Department of Agriculture and the State Auditor's office show that Mr. Stone was never Director of Markets but that he merely served under the alleged designation of "Acting Director" and was paid a salary less than that fixed by the statute for the Director of Markets. If Mr. Stone was not actually Director of Markets under the conditions and provisions of the statute, he would not be entitled to the statutory salary fixed for the Director. Code Section 5-202 not only provides for the appointment of a Director of Markets and fixes the salary for his services, but it also further provides as follows: "The Commissioner of Agriculture is hereby authorized to appoint such competent and experienced persons to assist the Director and such clerical and other assistants as may be necessary to carry out the intent of this Chapter who shall serve at the pleasure of the Commissioner of Agriculture and shall receive such compensation for their services as he and the Director shall determine: Provided, that all expenditures under this section shall be accompanied by proper vouchers and upon itemized statements approved by the Director. (Acts 1917, p. 78.)" If Mr. Stone can furnish the proper State administrative authorities satisfactory evidence of his appointment, qualification and service as "Director of Markets" and further show that he was paid less than the statutory salary, then ln that event I feel that his claim would be put in line for prompt payment. Nevertheless, it is fully within the power of the present Commissioner of Agriculture to determine from the facts and evidence available as to whether or not Mr. Stone was Director of Markets under the conditions prescribed by statute. If the Commissioner of Agriculture determines as a matter of fact that Mr. Stone was never Director, but that he was only an employee and received a 8 I salary which was fixed by the Commissioner of Agriculture, then in that event t he would not be authorized to cause payment to be made to Mr. Stone of the claimed deficiency in salary. The matter is simply one of truth and fact, as to ! I whether or not Mr. Stone was Director of Markets. I AGRICULTURE-Market Bulletin, subject-matter of. May 18, 1939 Committee on Economy and Efficiency This will acknowledge receipt of your letter of May 15th in which you inquire if there is any restriction under the law upon what matter or material can be published in the Market Bulletin and if so what prohibitions there are. The Market Bulletin is published under the authority of Section 3 of the Act of 1917 (Acts of 1917, pages 77-81), which now appears as Section 5-204 of the Georgia Code of 1933. That Code Section reads in part as follows: "The Director shall be the chief executive officer of the Bureau of Mar- kets and it shall be his duty to organize said Bureau and in cooperation with the Commissioner of Agriculture to plan and formulate the work to be done and carry out the provisions of this Chapter; and he shall - - - " (a) Investigate methods and practices in connection with the produc- tion, handling, standardizing, grading, classifying, sorting, weighing, packing, transportation, storage, inspection and sale of agricultural prod- ucts of all kinds within this State and all matters relevant thereto. "(b) Gather, formulate, and disseminate information in such form and at such time as he shall deem advisable relating to matters mentioned in subsection (a) hereof in all their phases, and by correspondence, publica- tion, advice, experimentation or by any other practical means shall keep producers, purchasers, and consumers informed of the supply and demand of all such products and of the markets at which the same can be best and most efficiently and most economically sold or procured. "(c) Publish periodical bulletins setting forth the current market prices for all such products in the several places of principal market therefor with- in the State and elsewhere, and so far as practicable data regarding the available supplies thereof and the demand therefor in said places. " (d) Ascertain sources of supply of all such products and prepare and publish from time to time lists of the names and addresses of producers and consignors thereof and furnish the same without charge to persons applying therefor. " (1) Take such other measures as shall be proper for carrying out the purposes of this Chapter: ... " In my opinion any subject-matter within the scope of the foregoing provi- sions may properly be included in the Market Bulletin. I do not find any subse- quent Act now in effect which restricts the matter or material that may be pub- lished in the Market Bulletin. The General Appropriations A"ct for 1931-1933 (Acts of 1931, pages 50-89) con- tained the following provision in Section 2 thereof: "Provided, however, that no more than $25, 000. 00 be allocated to the publication and distribution of the Market Bulletin; and provided further that nothing except Market Bulletin quotations and bona fide listings of market products offered for sale shall be published in the Market Bulle- tin . . . And provided further that if at any time the Market Bulletin is used for printing and publishing any matter, whether editorially or other- 9 wise, save and except strictly advertisements for sale or exchange for the farmers of the State for farm products, the Governor is hereby authorized and directed to refuse to sign any warrant for the payment of the publication or circulation of said Market Bulletin, and the same shall thereupon and thereafter cease to be published or circulated." The General Appropriations Act for 1931 to 1933 in which the above quoted provision appeared was limited in its scope to the years named therein. It was superseded by the General Appropriations Act of 1933 (Acts of 1933, page 13) . I do not find in the General Appropriations Act of 1933 or any subsequent Act a provision similar to the one quoted from the Appropriations Act of 1931. It is my opinion, therefore, that under the authority of the ruling of the Supreme Court in the case of City of Atlanta v. Goodman, 183 Ga. 834, and the cases cited therein, a repeal by implication will result where a statute is manifestly intended to cover the subject-matter of a former statute and to act as a substitute for it, notwithstanding the express provisions of the acts are not repugnant. The General Appropriations Act of 1931 was repealed by implication by the General Appropriations Act of 1933 and the only law now in effect which defines the subject-matter that may be included in the Market Bulletin is Code Section 5-204 hereinabove quoted. AGRICULTURE-Market sites, how sold and proceeds applied. July 13, 1940 Hon. Columbus Roberts Commissioner of Agriculture I am pleased to acknowledge receipt of your inquiry of June 25, 1940, in which you inquire under what conditions the market site property on Murphy Avenue, Atlanta, Georgia, can be sold and what disposition can be made of the money. This market site is owned in fee simple by the State. The Legislature can authorize the sale of this property. The title could not be conveyed except by virtue of an authorization from the Legislature. At the 1939 session of the General Assembly (Georgia Laws 1939, p. 1450) the Legislature, by joint resolution, authorized the sale of this market site provided it was sold for a sum not less than the actual amount of money that the State had invested in this property. This Act provides that in order for the property to be sold, the Governor shall advertise it in at least two of the larger papers of the City of Atlanta for at least sixty days, asking for bids, and is bound to accept the highest bid. These are, briefly, the conditions under which this property can be sold. Section 3 of the resolution hereinbefore mentioned reads as follows: "That upon the sale of such property, the Governor, acting with the Commissioner of Agriculture, is authorized to use the proceeds or whatever part of the same is necessary for the purchase of other property in the City of Atlanta to be used for the establishment of a farmers market." It will be observed that the Legislature has expressly restricted the use of the proceeds from any sale of this property to the purchase of other property "in the City of Atlanta" and for a farmers market. There is a serious question, however, as to the power of the Legislature to prescribe even this restricted use of the proceeds in the light of Article VII, Section XIII, Paragraph I of the Constitution which reads: "The proceeds of the sale of the Western and Atlantic, Macon and Brunswick or other railroads held by the State, and any other property owned by 10 the State, whenever the General Assembly may authorize the sale of the whole or any part thereof, shall be applied to the payment of the bonded debt of the State, and shall not be used for any other purpose whatever so long as the State has any existing bonded debt." (Emphasis supplied) The nature of your inquiry makes it unnecessary for me to pass upon the constitutionality of Section 3 of the joint resolution first referred to above. You ask "If we sell it, can we use the money on markets outside the City of Atlanta, " and if Section 3 of the resolution is constitutional the answer is that it directs that the proceeds can only be used to purchase property for a farmers market "in the City of Atlanta." If Section 3 is unconstitutional, then the paragraph of the Constitution quoted above controls the use of the proceeds and makes it mandatory that they be applied "to the payment of the bonded debt of the State." In either event, therefore, the answer to your question is in the negative. AGRICULTURE-Fertilizers, inspection fee not collectible on sales by United States Government. October 18, 1940 Hon. C. A. Gillespie Chief Fertilizer Inspector Department of Agriculture I have your letter of October 9th stating that the United States Government is selling acid phosphate to farmers in this State (to be used on cover crops) and collecting the purchase price thereof by deducting it from rental checks or other payments due to the farmers by the Federal Government. You state that the Federal Government is buying this phosphate at Charleston, South Carolina, from the Merchants Fertilizer Company, and that the fertilizer company, at the direction of the United States Government, ships it to the various county agricultural conservation associations, and that the county agricultural agents make the actual deliveries to the farmers. Presumably these fertilizer sales by the Federal Government are under the authority of the "Soil Conservation and Domestic Allotment Act", 16 U. S. C. A., Sections 590a-590q. You ask if the Federal Government or the fertilizer manufacturer can be required to pay the 30c per ton State tax called for by Section 5-1118 of the 1933 Code. Section 5-1118 of the 1933 Code provides as follows: "5-1118. Tax tags. Payments to Department of Agriculture. -All manu- facturers and manipulators, or agents representing them, who have registered their brands in compliance with this Chapter, shall forward to the Commissioner of Agriculture a request for tax tags, stating that said tags are to be used upon brands of fertilizers or fertilizer materials registered in accordance with this Chapter, and said request shall be accompanied with the sum of 30 cents per ton as an inspection fee; whereupon it shall be the duty of the Commissioner of Agriculture to issue tags to parties applying, who shall attach a tag to each bag, barrel or package thereof, which, when attached to said package, shall be prima facie evidence that the seller has complied with the requirements of this Chapter. Any tags left in the possession of the manufacturer may be used for another season and shall not be redeemed by the Department of Agriculture. The entire amount arising from the fee of 30 cents a ton shall be paid into the State treasury as rapidly as collected. " Under the decisions of the Court of Appeals of Georgia the foregoing Code section has been held to be purely a revenue measure. See Hillis v. Comer and 11 Company, 13 Ga. App. 214, 217; Ritchey et al v. Armour Fertilizer Works, 18 Ga. App. 124 (2). And a State cannot tax the Federal Government or an instrumentality or agency thereof without the consent of the United States. This immunity from taxation is based upon the sound proposition that the functions of government must not be unduly impeded. See VanBrocklin v. And~rson, 117 U. S. 151, 6 S. Ct. 670, 29 L. Ed. 845; McCulloch v. Maryland, 4 Wheaton 316, 4 L. Ed. 579; Weston v. Charleston, 2 Peters (27 U. S. 449, 7 L. Ed. 481. See, also, Penick v. Foster, 129 Ga. 217; Williamson v. Housing Authority of Augusta, 186 Ga. 673. So far as I have been able to ascertain there is no provision in the Federal "Soil Conservation and Domestic Allotment Act" or in any other Federal statute which authorizes a State to assess or collect taxes from the Federal Government or any instrumentality thereof on account of the sale, possession, or use of acid phosphate or other fertilizer or fertilizer material. It is my opinion, therefore, that no tax can be collected from the Federal Government on account of the aforesaid fertilizer sales. Nor do I think that the tax in question can be collected out of the manufacturer at Charleston, South Carolina. The fertilizer company does not i.n any way participate in the transaction between the Federal Government and the Georgia farmers. All that the fertilizer company does is to manufacture and sell its product inside of the State of South Carolina. The shipments into Georgia are for the benefit of and at the direction of the United States Government. The United States Government, not the fertilizer company, is the vendor to the Georgia farmers. AGRICULTURE-Fertilizers, inspection fee not collectible on out of state sales by manufacturer to United States Government. June 24, 1940 Honorable C. A. Gillespie Chief Fertilizer Inspector Department of Agriculture I am pleased to acknowledge yours of the 15th instant inclosing the letter of Mr. L. L. Oliveros, Secretary of the Merchants Ferti.Iizer Company of Charleston, South Carolina, relating to the sale of some Superphosphate sold by said company to the United States Government f. o. b. Charleston. You have requested me to advise you whether or not this company would be permitted under the law to ship fertilizer or fertilizer material to any one without first registering their product with the Department of Agriculture, as required under the fertilizer laws of Georgia and also whether they would be relieved of the State tax on said shipments. Section 5-1101 of the Code requires every manufacturer and mixer selling or offering for sale any fertilizer or fertilizer material in this State to register each brand of such which is to be sold or offered for sale, etc. Section 5-1102 of the Code requires every person offering fertilizer or fertilizer material for sale or exchange in this State to procure a license from the Commissioner of Agriculture. Whether or not the Merchants Fertilizer Company of Charleston, South Carolina, would have to register their brands and obtain a license to sell the same in this State would depend upon whether they manufactured or mixed their fertilizer in this State and whether or not they sell or offer for sale their fertilizer or fertilizer material in this State. If they do then they would have to 12 comply with the statutes. If they do not then they would not be subject to the terms of the statutes. It appears from Mr. Oliveros' letter that the sale in question took place in the State of South Carolina, and not in this State. There is nothing in the statutes which would prevent the Agricultural Adjustment Administration from purchasing their fertilizer in South Carolina and then shipping the same to this State, and in such cases I do not think that the A. A. A. would be subject to the 30c per ton inspection fee. Also, if the manufacture and sale of this fertilizer or fertilizer material was not consummated in the State of Georgia, the manufacturer or mixer would not be subject to the payment of the 30c per ton inspection fee. You might make a further investigation of the facts for the purpose of determining whether or not the sale of this fertilizer was consummated in the State of South Carolina or in the State of Georgia. AGRICULTURE-Fertilizers, must contain 14 per cent. plant food. February 21, 1940 Hon. C. A. Gillespie Chief Fertilizer Inspector You have asked my opinion as to whether the Plant Food Company of Charlotte, North Carolina, can purchase sludge from the City Water Works of Atlanta and, by adding thereto some other material so as to raise the nitrogen content of the sludge up to 3%, sell the resulting mixture in this State as a complete fertilizer. In my opinion, the mixture in question could not be sold as a complete fertilizer. This is true because under an Act approved February 12, 1938 (Georgia Laws 1937-1938, Extra Session, pages 205, 211, Section 3) , no complete fertilizer can be offered for sale in this State which contains less than 14% of total plant food, namely, available phosphoric acid, nitrogen, and potash. The resulting mixture in question would contain the required portion of nitrogen, but would be lacking in the required percentage of phosphoric acid and potash. It would not, therefore, be a complete fertilizer within the meaning of the aforesaid statutory provision. AGRICULTURE-Fertilizers, penalty for deficiency in analysis, how collected. November 15, 1940 Hon. Columbus Roberts Commissioner of Agriculture I am pleased to acknowledge receipt of your letter in reference to The Producers Cooperative Exchange, Inc., of Atlanta, Georgia, which is due various farmers in this State $152. 48 on deficiencies in analysis of fertilizer sold during the year 1940, and its failure to pay this within the time required by law. You desire to be advised the necessary steps to be taken in order to force the payment of these claims. Section 5-1115 of the Code of 1933, as amended by the Act of the Extraordinary Session of 1937-38 (Acts 1937-38, Extra Session, pp. 205, 212, 213), provides in part as follows: 13 "Whenever any fertilizer or fertilizer material, upon analysis by the State Chemist, is found subject to a penalty under the provisions of Jaw, the Commissioner of Agriculture is empowered and it is hereby made mandatory upon him to proceed by attachment or other legal means to collect such penalty from the party or parties subject thereto, and pay the same to the person or persons entitled to receive it. " In the event this fertilizer company fails or refuses to pay the amounts de- termined to be due, it is mandatory upon you as Commissioner to proceed in court to enforce collection thereof. Your attention is also called to Section 5-1116 of the Code of 1933, which pro- vides as follows: "If any manufacturer or mixer shall be subject to a penalty under the terms of this Jaw and shall fail or refuse to pay the same upon demand as provided in the preceding section, the Commissioner of Agriculture is au- thorized to cancel the registration or registrations of such manufacturer or mixer and forbid the sale by such manufacturer or mixer of any fertilizer or fertilizer materials until such penalty or penalties have been paid or final judgment has been obtained." It seems to me that this probably would be your most effective remedy in enforcing the collection of these claims. I would suggest that you proceed under this latter section. AGRICULTURE-Fertilizers, registration of materials sold to manufacturers or mixers. June 5, 1939 Ron. C. A. Gillespie Chief Fertilizer Inspector Department of Agriculture I have your letter of May 30, 1939, in which you state that: "The Synthetic Nitrogen Corporation, of New York City, have registered with this department their 16% Cal-Nitro, which is sold in this State. This material is put up in bags and carries their guarantee of 16% nitrogen. They also sell in this State their 20. 5 Cal-Nitro. This grade is sold in bulk to the manufacturers and mixers only. They do not have their 20. 5 grade registered with this department and when we called on them for their registration, they advised that since it was sold to the manufacturers and mixers only to be used by them in mixing fertilizers, they did not believe they should be required to register It. We wiJI thank you to advise us at your earliest convenience if under the law they would be required to register this material. " Section 5-1101 of the 1933 Code provides in part as follows: "Every manufacturer and mixer selling or offering for sale any fertilizer or fertilizer material shall first file annually with the Commissioner of Agriculture, upon forms supplied by the Commissioner for that purpose, a registration of each brand of fertilizer or fertilizer n:aterial to be offered for sale, giving the name and address of the manufacturer or mixer, togeth.: er with the name of each place at which they may desire to do business in this State, the guaranteed analysis thereof, stating the sources from which the phosphoric acid, nitrogen and potash are derived and giving the percentage of organic nitrogen, the percentage of inorganic nitrogen and the percentage of the total amount of nitrogen, and stating what proportion of the potash is sulphate, if any . . . The application shall be accompanied 14 by a fee of $5 for each brand of fertilizer or fertilizer material which they may desire to sell." (Emphasis supplied.) Section 5-1104 of the 1933 Code provides that it shall not be lawful for any manufacturer or company, either by themselves or their agents, to offer for sale any fertilizer or fertilizer material that has not been registered with the Commissioner of Agriculture as required by Chapter 5-11 of the 1933 Code. (Emphasis supplied. ) It will be noticed that both the Code sections quoted above specifically apply to any and all fertilizer material, and no distinction is made between sales made to the consumer and sales made to a manufacturer or mixer. It is, therefore, my opinion that the Synthetic Nitrogen Corporation must register its 20. 5 CalNitro with your Department before offering it for sale in this State, whether the sale is to a manufacturer or mixer or to the public. AGRICULTURE-Fertilizers, registration of materials sold to manufacturers or mixers. August 9, 1939 Ron. C. A. Gillespie Chief Fertilizer Inspector Department of Agriculture You have asked my opinion as to the applicability of Section 5-1005 of the 1933 Code to the registration of fertilizer material sold only to manufacturers for use in the manufacture of their mixed fertilizers, which mixed fertilizers are duly registered in this State. You refer specifically to my letter of June 5, 1939 relating to the registration of the 20. 5 Cal-Nitro of the Synthetic Nitrogen Products Corporation. The Code Section referred to was taken from the Act of 1901, page 65 at 70 (13) and provides as follows: "5-1105. (1784) Manufacturers and manipulators. -Nothing in this Chapter shall be construed to restrict or avoid sales of acid phosphate or any other fertilizer material to each other by importers, manufacturers, or manipulators, who mix fertilizer materials for sale, or as preventing the free and unrestricted shipments of material to manufacturers or manipulators who have registered their brands as required by the provisions of this Chapter. (Acts 1901, pp. 65, 70.) " Prior to January 1, 1930 the above quoted Code Section made it unnecessary to register any brand of fertilizer material sold only to manufacturers or manipulators who had registered their brand. As heretofore pointed out to you, however, on August 24, 1929, a supplemental statute was approved (Georgia Laws 1929, page 228) , effective January l, 1930, wherein it was provided as follows (page 228) : "Section 1. That on and after the passage of this Act every manufacturer and mixer selling or offering for sale within the State any fertilizer or fertilizer material shall first file annually with the Commissioner of Agriculture, upon forms supplied by the Commissioner for that purpose, a registration of each brand of fertilizer or fertilizer material to be offered for sale, giving the name and address of the manufacturer or mixer, together with the name of each place at which they may desire to do business in this State, the guaranteed analysis thereof, stating the sources from which the phosphoric acid, nitrogen and potash are derived and giving the percentage of organic nitrogen, the percentage of inorganic nitrogen and the percentage 15 of the total amount of nitrogen, and stating what proportion of the potash is sulphate, if any, and that for the purpose of this Act, organic nitrogen shall be that derived from animal or vegetable matter, and all other nitrogen shall be classed as inorganic. Such application to be accompanied by a fee of five dollars for each brand of fertilizer or fertilizer material which they may desire to sell. " The above quoted portion of the Act of 1929 was also codified. Section 5-1101 of the 1933 Code. While the 1929 Act, supra, expressly stipulated that it was in addition to and supplemental to all laws then governing the sale, manufacture and distribution of fertilizer and fertilizer materials, Section 15 thereof (page 232) expressly repealed all laws and parts of laws in conflict therewith. It will be noticed that the Act of 1929 contained no provision whatever to permit the unrestricted sale of fertilizer material by one manufacturer to another manufacturer or mixer. Whereas the Act of 1901 did. The Act of 1929 applied to all sales of fertilizer material by a manufacturer or mixer, without reference to whether such sales were made to the consumer or to another man- ufacturer or mixer. The two Acts are, therefore, in direct conflict. (Emphasis supplied.) As heretofore stated, the quoted portions of both Acts have been codified. But where two sections of the Code are derived from Acts of the Legislature, and are in direct conflict with each other, the section which is taken from the later Act will prevail, as being the last expression of the lawmaking power on the subject. Williams v. W. & A. RR. Co., 142 Ga. 696; U.S. F. & G. Co. v. Toombs County, 187 Ga. 544 at 551 (5) ; Atlanta Finance Co. v. Brown, 187 Ga. 729, at 731. For the above reasons, it is my opinion that you must be governed by the provisions of Section 5-1101 of the 1933 Code rather than by those of Section 5- 1005. Under Code Section 5-1101 the Synthetic Nitrogen Products Corporation must register its 20. 5 Cal-Nitro with your Department before offering it for sale in this State, whether the sale is to a manufacturer or mixer or to the con- sumer. AGRICULTURE-Fertilizers, report on bulk sales, how compelled. August 11, 1939 Honorable C. A. Gillespie Chief Fertilizer Inspector Department of Agriculture I have your letter of August 9, asking what procedure may be followed to compel fertilizer companies to report all bulk sales of fertilizer materials sold to farmers in this State and to pay the fee of 30 per ton due on account of such sales. You further ask if your Department has a right to check the records of such companies in order to ascertain the number of tons sold and the amount due. Under Sections 5-108 and 5-1402 of the 1933 Code the Commissioner of Agriculture has the power to establish such rules and regulations as may be reasonable and necessary to carry out the provisions of law relative to the sale of fertilizer in bulk. Rule No. 3 of the Commissioner of Agriculture provides as follows: "Three. Each company, manufacturer or manipulator in commercial fertilizer or fertilizer material shall, when making sale or shipment, furnish 16 to the Commissioner of Agriculture, a statement or copy of the invoice of each shipment or sale of fertilizer or fertilizer material, giving the name of the shipper actually making the shipment, or sale, whether such seller is subsidiary to another manufacturing company or not. Such statement or copy of invoice to give the name of the shipper, or seller, the name of the consignee, the number of tons whether sacked or bulk. If sacked, the size of the sack in pounds and the analysis of the fertilizer, and the name of the ; fertilizer or fertilizer material and the brand. " Rules and Regulations, Department of Agriculture, July 1, 1938, page 19. Rule 5 of the Commissioner of Agriculture provides that whenever a fertilizer manufacturer, mixer or manipulator shall ship bulk material to any person I other than a registered mixer, remittance of tax on such shipments shall be made direct to the Department of Agriculture by the seller on the date of ship- i ment. The aforesaid rules and regulations of the Commissioner of Agriculture fur- ther provide (page 23) that all manufacturers, mixers or manipulators of fer- tilizers or fertilizer materials must send to the Department of Agriculture de- tailed information about all shipments of fertilizers or fertilizer materials, which information must distinctly name the consignee and give the destination, date of sale, brand name of the fertilizers, or name of the chemical or fertilizer material, tonnage or fraction thereof, guaranteed analysis, and if sold in bulk it must be so stated in the report. Sections 5-1404 and 5-9936 of the 1933 Code provide that any violation of the provisions of Code Chapter 5-14, relating to the sale of fertilizers in bulk, shall be deemed a misdemeanor, and that it shall be the duty of the Commissioner of Agriculture to prosecute each and every offender for such violation. Except for the criminal prosecution of the offender of the law relating to the sale of fertilizer in bulk, I know of no other way in which to compel fertilizer companies to report bulk sales of fertilizer and fertilizer materials sold to farmers. I do not think that your Department would have a right to inspect the records or files of any of these companies unless such companies consent thereto. AGRICULTURE-Insecticides and fungicides, Commissioner may refuse to register unapproved preparations. March 16, 1940 Ron. c. A. Gillespie Chief Fertilizer Inspector I have your letter of March 12th with further reference to the product known as "KNO-MOLD", manufactured by the Johnston Chemical Manufacturing Company, Smithfield, North Carolina, and asking if the Commissioner of Agriculture has the authority to refuse the manufacturer's request for registration of said product, and if so if the Commissioner of Agriculture would have a legal right to prevent the sale of said product in this State. You state that registration of the product in question has been refused because the State Entomologist, the Federal Department in Washington and the agronomist at the Coastal Plains Experiment Station, Tifton, Georgia, have all determined that "KNO-MOLD" is practically worthless for the purpose for which it is made, -for use on tobacco plants in the treatment or prevention of Blue Mold. There is nothing in the law relating to insecticides and fungicides which deals directly with the questions propounded, unless the provisions of Section 17 5-1507 of the 1933 Code are applicable. Under that Section the State Entomologist is authorized and required to fix a standard for insecticides and fungicides and to make such rules and regulations as in his judgment are necessary for the protection of the people. Rule One of the former Georgia State Board of Entomology provides that no fungicide or insecticide shall be sold or offered for sale in this State for use on agricultural or horticultural crops unless it has been tested and approved for the purpose for which it is sold by a United States governmental agency or some State agency approved by the Georgia State Board of Entomology. I am informed that the present State Entomologist has adopted and promulgated the rulings of the former Georgia State Board of Entomology, included in which is the aforesaid Rule One, which may be found in Bulletin No. 116, dated May, 1930. It is my opinion that Code Section 5-1507, supra, together with the aforesaid Rule One adopted and promulgated by the State Entomologist, are sufficient authority for the Commissioner of Agriculture to refuse to register "KNOMOLD". There is no provision in the law which would authorize the seizure of the product in question. Under Section 5-9937 of the 1933 Code, however, criminal prosecution may be had against any person who may be found within the boundaries of the State of Georgia selling or attempting to sell the aforesaid product. The manufacturer of "KNO-MOLD" might contend that Section 19 of the Act approved March 25, 1937 (Georgia Laws 1937, pages 659, 671) repeals and supersedes Code Section 5-1507, supra. I do not think that the 1937 Act has any such effect, because the 1937 Act does not relate to insecticides and fungicides. AGRICULTURE-Insecticides and fungicides, manufacturers or jobbers required to register. October 28, 1939 Honorable C. A. Gillespie Chief Fertilizer Inspector Department of Agriculture I have your letter of October 23rd inclosing your file in the matter of the product known as "Beetle Dust", made by the J. W. Woolfolk Company, Fort Valley, Georgia. From the file it appears that this product has been sold over the State for the past two years, although it has never been registered with the Department of Agriculture. I notice also that one Mr. S. A. Lockey, of Clarkesville, Georgia, has suffered considerable damage from using "Beetle Dust" on his beans. You ask my advice as to the proper action your Department should take against J. W. Woolfolk Company. Section 5-1501 of the 1933 Code requires all manufacturers and jobbers of and dealers in insecticides and fungicides commonly used on cotton, field crops, and fruits, who may desire to offer for sale and sell such products, to first file with the Commissioner of Agriculture the name of each brand of any such preparation which they may wish to sell either directly or through agents, together with the name and business address of such manufacturers, jobbers, or dealers. Section 5-1504 of the 1933 Code provides for the payment of 25 cents per ton, as an inspection fee, to be paid on such products, as evidence of which tags, to be furnished by the Commissioner of Agriculture, shall be attached to each package of such preparations. 18 Section 5-1507 of the 1933 Code authorizes and directs the State Entomologist to fix standards for insecticides and fungicides commonly used on cotton, field crops and fruit, and to make such rules and regulations as, in his judgement, shall be necessary for the protection of the people, and make thoroughly effective the provisions of the Act relating to insecticides and fungicides, which regulations have the force and effect of law. Section 5-1508 of the 1933 Code makes it the duty of the Commissioner of Agriculture to prosecute each and every violator of the Act relating to insecticides and fungicides. Under Section 5-9937 of the 1933 Code, any violation of the Act in question is deemed a misdemeanor, and all fines arising therefrom are paid into the State Treasury and become a part of the State educational fund. Any violation of the law relating to insecticides and fungicides should be referred to the Solicitor of the county where the violation took place. AGRICULTURE-Insecticides and fungicides, penalty for offering unregistered preparations for sale. February 21, 1940 Hon. C. A. Gillespie Chief Fertilizer Inspector I have your letter of February 20th in which you ask if the unregistered insecticide produced by the Johnston Chemical Manufacturing Company of Smithfield, North Carolina, known as "KNO-MOLD" can be seized if found in the possession of any agent or farmer in this State, said seizure being based upon the fact that said insecticide is not registered as required by Section 5-1501 of the 1933 Code of Georgia, and because the manufacturer has also failed to comply with Section 5-1504 of the 1933 Code of Georgia requiring inspection fee tags to be attached to each package of the insecticide. There is no provision in the law which would authorize the seizure of the insecticide in question. Under Section 5-9937 of the 1933 Code, however, it is provided that any person who shall violate any of the provisions of Chapter 5-15, relating to insecticides and fungicides, shall be guilty of a misdemeanor; and under Section 5-1508 of the 1933 Code it is made the duty of the Commissioner of Agriculture to prosecute each and every violator of any of the provisions of said Chapter of the Code relating to insecticides and fungicides. Such criminal prosecution can be made in any county of this State in which said unregistered and unstamped insecticide is sold. The criminal prosecution of violators of Chapter 5-15, relating to insecticides and fungicides, is the only remedy which can be followed 'in the case under consideration. I notice from your letter that a salesman of the Johnston Chemical Manufacturing Company has intimated to you that his company might attempt to deliver "KNO-MOLD" to the Georgia trade through the mail. There is, of course, no way for the State to prevent such shipments. All the State can do is to institute criminal prosecutions against any person who may be found within the boundaries of the State of Georgia selling or attempting to sell the aforesaid insecticide. 19 AGRICULTURE-Naval stores, inspector's fee, how collected. June 6, 1939 Hon. J. E. Register Assistant State Supervising Inspector of Naval Stores Savannah, Georgia This will acknowledge receipt of your Jetter of May 31st in which you make the following inquiry: "Would it be possible for the State Supervising Inspector of Naval Stores to get his fee (1/4 cent on each barrel inspected in the State) directly from the American Turpentine Farmers Association in Valdosta on rosin and turpentine coming under the government loan?" In your letter you do not give me sufficient information to allow a specific answer to your question. Section 5-1614 of the Georgia Code of 1933 provides in part as follows: "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; ... Said fee shall be paid equally by the buyer and seller of such naval stores ... " In my opinion, the provision of that Code Section which requires the fee to be paid equally by the buyer and the seller is controlling. Since you do not inform me whether the American Turpentine Farmers Association is the buyer or seller of the rosin and turpentine or just what their interest in such naval stores is, I am unable to advise you on this question. You next ask for an interpretation of Section 5-1615 of the Code of Georgia of 1933 which defines the powers and duties of the supervising inspector. Here again I am unable to answer your question until you inform me what particular provision of that Code Section you have in mind. If you wish to determine whether some particular action or contemplated action on the part of the supervising inspector comes within the scope of his powers and duties as set out in Section 5-1615 of the Code, it will be necessary to know what particular action or contemplated action you have in mind. You also request an opinion "on whether or not Section 5-1614, entitled 'Compensation of Supervising Inspector' ... can be interpreted to mean that, if payment of a fee due the supervising inspector, is refused, or for any reason held up indefinitely, a lien could not be taken by the supervising inspector on all naval stores in this State until the fee was paid. " In my opinion Section 5-1614 of the Georgia Code of 1933 does not by its terms give the supervising inspector a lien upon the naval stores inspected for the collection of his fee. Under the specific provisions of that Code Section his right to recover from any person or corporation the fees allowed him is "in appropriate proceedings in any court having jurisdiction thereof". When this has been done, he comes under the provisions of Section 67-1701 (2) of the Code of 1933 which is as follows: "The following liens are established in this State: (2) Liens in favor of creditors by judgment and decree." When such judgment has been secured, then under the provisions of Section 110-507 of the Code, it binds all the property of the defendant, both real and personal, from the date of the judgment, except as otherwise provided in the Code. If you will write me giving more specific information with reference to the first two inquiries of your letter, I shall be only too glad to advise you in that regard. 20 AGRICULTURE-Naval stores, inspector's fee, when due. June 23, 1939 Ron. John E. Register Assistant State Supervising Inspector of Naval Stores Room 8, Commercial Building Savannah, Georgia This will acknowledge your letter of June 21st to which you attach a printed form of the agreement entered into between the producers of naval stores and the American Turpentine Farmers Association Cooperative, Valdosta, Georgia. You refer to my opinion of June 19th wherein I held that the supervising inspec- tor's fee is due and payable when there is a sale of the naval stores. You call my attention to certain portions of the agreement and ask my further opinion as to whether or not there is a sale and purchase of naval stores under the said agreement at the time the producer delivers the naval stores and the same are accepted by the American Turpentine Farmers Association Cooperative. so as to make the supervising inspector's fee then immediately due and payable. In determining your question, I think certain portions of the agreement are applicable, especially the following: "The producer hereby agrees that absolute title will be conveyed to the Association of all gum turpentine and gum rosin delivered to and accepted and held by the Association under the terms of this agreement, and such conveyance shall constitute a sale by the Producer and a purchase by the Association of such gum turpentine and gum rosin. The Producer agrees that all gum turpentine and gum rosin sold, delivered by him as aforesaid, shall immediately be pooled and commingled by the Association with the gum turpentine and gum rosin of other producers under generally similar agreements . . . " (Emphasis supplied.) Following the above quoted portion of the agreement, there is a provision that after April!, 1939, upon written request of the producer, to make advances on eligible gum turpentine and eligible gum rosin delivered by producers and represented by warehouse receipts in the amounts therein set forth. There is a further provision that the producer agrees that the Association or the Com- modity Credit Corporation may deduct and withhold from the advances, 65 per 50 gallons of gum turpentine and 65 per round wood barrel or metal drum of gum rosin for purposes of providing funds to pay carrying, operating and mar- keting expenses on the gum turpentine and rum rosin. The agreement further provides that the payment of the advances to the producer and other producers shall be made without recourse or right on the part of the Association to recover any part of said advances from the producer, at any time except for fraud or misrepresentation in connection with the gum turpentine and gum rosin sold and delivered to the Association. It is important to note that the aforesaid em- phasized word "sold" is used in the agreement which fortifies the conclusion that under the terms of the contract itself there is a sale and purchase of the naval stores at the time the producer delivers the naval stores and the same are ac- cepted by the American Turpentine Farmers Association Cooperative under the agreement. ' Section 4 of the agreement contains the following provision: "The Producer agrees that the Association or Commodity may re-sell for the best prices obtainable under market conditions all gum turpentine and gum rosin delivered by the Producer, together with gum turpentine and gum rosin delivered by other producers under similar agreements. " (Emphasis supplied. ) 21 The use of the word "re-sell" indicates that there has already been a sale of the naval stores to the Association at the time the same are delivered by the producer and accepted by the Association. It is true that under Section 4 of the agreement the producer may stand to benefit for an additional payment over the advance made to him if on a re-sale of the naval stores by the Association a sufficient price is brought to pay the advance and certain charges and expenses enumerated in the contract~ and allow and afford an excess over the said advance, charges and expenses. In my opinion this fact alone does not keep the agreement from making it such a sale and purchase of the naval stores at the time the producer delivers the naval stores and the same are accepted by the Association under the contract. Therefore, it is my opinion that when a producer delivers naval stores under a form of agreement as submitted in your letter and the naval stores are accepted by the Association, the supervising inspector's fee then and there becomes immediately due and payable for the reason that under the very terms of the agreement it is provided that such "shall constitute a sale by the producer and a purchase by the Association. " ATTORNEYS AT LAW-A judge whose office prohibits his practice of law is not subject to lawyer's professional tax. February 10, 1940 Honorable Robert Carpenter, Jr. Judge of Civil Court of Fulton County Atlanta, Georgia I am pleased to acknowledge yours of the 9th instant requesting my opinion as to whether you are subject to the payment of the professional tax upon lawyers as levied under the General Tax Act of 1935, where the statute creating your office prohibits you from engaging in the practice of law. I know that you are familiar with the provisions of the General Tax Act of 1935levying a tax upon professions. Said section is now codified as Section 92-1909 in the Code of Georgia Annotated, and I will not quote its provisions in toto here. Suffice it to say that it levies an annual tax of $15. 00 on "each and every practitioner of law". Under the plain terms of the statute, any person who is not a "practitioner" of law would not be subject to the tax. I think that it is axiomatic that a judge who holds an office created by statute, under the terms of which he is forbidden to engage in the practice of law, could not be said to be a "practitioner" of law, and consequently would not be subject to the t"ax. Of course you realize that this opinion is purely unofficial and is binding upon no one. However, I am of the firm opinion that it states the true rule and that under the statute and the facts and circumstances in your case, you would not be subject to this tax. ATTORNEYS AT LAW-Reinstatement to the bar does not follow automatically from the grant of a pardon. July 24, 1940 Honorable R. L. Evans 24 Broad Street S. W. Atlanta, Georgia I have carefully read the brief submitted by you in support of the contention that a full pardon received from the Governor pardoning a lawyer of a crime 22 alleged to have been committed which involved moral turpitude has the effect of restoring to him the right to practice law. Unfortunately I am unable to concur in the conclusion reached by you in your brief, as I find that the great weight of authority in this country is to the effect that a pardon does not extend to disbarment proceedings or require a court to reinstate an attorney, but does no more than open the door to an inquiry that would otherwise be barred. See 7 CJS Attorney and Client, Section 41; Payne v. The State, 52 Ga. App. 425; Branch v. The State, 163 Sou. 48, ex parte Stephenson, 187 Sou. 461; in re Finn, 10 NYS (2d) 29. Our appellate courts, as is shown by the decision in the Payne case, supra, follow the general rule. In said case it was held: "Under the facts in the case, while the pardon granted by the governor had the effect of relieving the plaintiff in error from the punishment imposed upon his conviction of being intoxicated on a public highway and making him eligible to apply for readmission to the bar, such readmission was nevertheless a matter within the discretion of the court. 6 OJ 587, section 45; Gibson v. Lee, 51 Ga. App. 594; State v. Gowlland, 174 La. 351. A reinstatement to the bar did not follow automatically from the grant of the pardon." Of course, you realize that what is said in this letter i.s purely unofficial and binding upon no one, for the reason that, under the law prescribing the duties of the Attorney General, I have nothing whatsoever to do with matters of this kind. They are wholly beyond my jurisdiction, and I refer you to the above stated cases so that you may familiarize yourself with them and better know how to proceed. I am convinced from these decisions that it will be necessary to apply to the court in which the lawyer was disbarred for reinstatement. BANKS-Business license on banks by municipalities. August 30, 1939 Honorable R. W. Durden Cashier Durden Banking Company Summit, Georgia I have your letter of August 23rd referring to the quotation on page 103 of "The Banking Law of Georgia" with reference to the exemptions of banks from occupation tax, and asking if banks are exempt, under such law, from a business license levied by a municipality. The provision referred to on page 103 of "The Banking Law of Georgia" is a quotation from Section 2, Paragraph 43 (k) of the General Tax Act of 1935 (Georgia Laws 1935, pages 11-72, at page 18) . The quoted provision of the General Tax Act provides that State banks are exempt from the payment of the annual license or occupation tax due the State of Georgia, so long as national banking associations are exempt from the payment of such tax. The exemption of State banks from the payment of an annual license or occupation tax due the State of Georgia has no application to business licenses required of a bank by a municipality. While I am not permitted to express an official opinion on the right of a municipality to require a business license from a bank, I can find no provision of law which would prohibit a municipality from requiring such licenses where the charter of the municipality so permits. 23 BANKS-Double liability of stockholders abolished by renewal of bank charter under banking act. August 21, 1940 Hon. C. B. Golsan Acting Superintendent of Banks I have your letter of August 19 stating that the Bank of Grantville was .char- tered in 1901; that its charter was renewed in 1931; and that the Bank closed in 1936. You ask if the 1935 Act, abolishing the statutory double liability on stock- holders of banks incorporated under the Act of 1919, relieves the stockholders of the Bank of Grantville from such liability. In the case of Gormley v. Searcy, 182 Ga. 675, the Supreme Court held that a bank renewing its charter under the 1919 Act makes itself amenable to the general law of force at that time as to the liability of stockholders in banks. In that case the charter of the Griffin Banking Company was granted by special legislative act in 1870 for thirty years; the charter was renewed in March, 1900. for thirty years, as provided by the Act of 1893; the charter was again renewed in 1930, under the Act of 1919. It was held that the Griffin Banking Company, by so renewing its charter in 1930, adopted the provisions of the Banking Act of 1919 as to the liability of stockholders. In the case of Dobbs v. Federal Deposit Insurance Corporation, 61 Ga. App. 502, it was held that the Act of 1935 abolished the statutory double liability of stockholders of banks incorporated under the Act of 1919, but that stockholders in banks created under the Act of 1893 were not so relieved. In that case, how- ever, the charter of the Merchants and Farmers Bank, granted in 1911 under the Act of 1893, had not been renewed. Under the foregoing decisions, it is my opinion that, because the charter of the Bank of Grantville was renewed in 1931 (under the Act of 1919), the Bank adopted the provisions of the Act of 1919 and thus, at the time of its closing, held its charter under and by virtue of the Act of 1919, and not under the Act of 1893. In other words, when the Bank of Grantville renewed its charter in 1931 the renewal was equivalent to the grant of a new charter and was not merely an extension of the original charter. It follows, therefore, that since the renewed charter took its life from the Act of 1919 and not from the Act of 1893, the stat- utory double liability on its stockholders was abolished by the Act of 1935. BANKS-Right of chartered bank to require evidence of final payment for checks on private bank. September 14, 1940 Hon. C. B. Golsan Acting Superintendent of Banks I have your letter of September 12th asking if a chartered bank holding checks drawn upon a private bank is required to surrender such checks to the Private bank and accept the private bank's check drawn on its approved reserve agent without first requiring such private bank to give satisfactory evidence that the check drawn on its reserve agent is good and will be paid by the reserve agent. Under an Act approved March 24, 1939 (Georgia Laws 1939, pages 360-361) Private banks have the right to pay checks drawn upon them when presented by any bank, banker, trust company, or any agent thereof, either in money or in exchange drawn on their approved reserve agents. 24 Inasmuch as the 1939 Act authorizes a private bank to make payment either in money or exchange, it is logical to say that the private bank has the right to choose between the two methods of payment. If it has such a choice, then it occurs to me that the private bank could compel the c::Jllecting bank to accept payment in exchange rather than cash. This presupposes, of course, that the exchange drawn on the reserve agent would be paid; and I should think that there would ordinarily be a presumption that the exchange would be paid. If, however, the collecting bank desires "satisfactory evidence" as to whether the exchange drawn by the private bank would be paid, then I think the expense of procuring such evidence should be borne by the collecting bank and not by the private drawee bank, inasmuch as the private drawee bank, and not the collecting bank, has the right to choose between the two methods of payment. Apparently, however, the appellate courts of Georgia have taken a different view. The provision of the 1939 Act, supra, authorizing private banks to pay checks drawn upon them when presented by any bank, banker, trust company, or any agent thereof, either in money or in exchange drawn on their approved reserve agents, is identical with the Act of 1920 applying to chartered banks, wherein a chartered bank has the right to pay checks drawn upon it when presented by any bank, banker, trust company, or any agent thereof, either in money or in exchange drawn on its approved reserve agents. (The 1920 Act is codified as the last part of Section 13-2027 of the 1933 Code.) Since the passage of the 1920 Act authorizing a chartered bank to make payment in exchange as well as in money, both the Court of Appeals of Georgia and the Supreme Court of Georgia have held that when a bank receives a check from a depositor for collection, it must return to him either the check or the money; that if the collecting bank surrenders the check to the bank on which it is drawn, and accepts a cashier's check or other obligation in lieu thereof, its liability to its depositor is fixed, as if it had received the cash; and that it has no right, unless specially authorized to do so, to accept anything in lieu of money. See Foster v. Peoples Bank, 47 Ga. App. 447; Peoples Bank v. Foster, 180 Ga. 1. Under the above decisions it would appear that the drawee bank could be required to make payment in cash, inasmuch as the collecting bank acts at its own risk in accepting anything other than cash. It would follow, therefore, that under those decisions the collecting bank, if it chose to accept exchange in lieu of cash, could require the drawee bank to furnish, at the expense of the drawee bank, satisfactory evidence that the exchange drawn on its approved reserve agent would be paid. It strikes me that the above decisions are in direct conflict with Code Section 13-2027, because the court decisions hold that a collecting bank acts at its own peril in accepting payment in anything other than money, whereas the Code section specifically provides that the drawee bank may make payment in exchange drawn on its approved agents. It may be that both the Court of Appeals and the Supreme Court completely overlooked Code Section 13-2027 in rendering the above decisions, because in neither opinion is the Code section referred to. I hesitate to say just what course should be followed in view of the apparent conflict of law. It occurs to me, however, that the matter is one to be settled by the banks involved, inasmuch as the Attorney General's office has no jurisdiction over the controversy. 25 BANKS-State banks exercising trust powers must secure uninvested trust funds with bonds. November 26, 1940 Hon. C. B. Golsan Acting Superintendent of Banks I have your letter of November 20th asking if State banks having a,nd exercising trust powers must secure with bonds uninvested trust funds in accounts of $5, 000. 00 or under. In cases of banks carrying F. D. I. C. insurance, I fail to see the practical necessity for securing such accounts with bonds. The plain language of the Act approved March 26, 1935 (Georgia Laws 1935, page 484), however, permits no exceptions to the requirement that uninvested trust funds in banks having and exercising trust powers must be secured with a sufficient amount of bonds of the United States or of the State of Georgia. The relevant portions of the 1935 Act provide as follows: ~section 1. That all banks in this State having and exercising trust powers and privileges, and trust companies, savings banks and security or guarantee companies and corporations doing a trust business, or exercising the rights, powers and privileges of trust companies, and having on hand uninvested trust funds shall secure them by setting aside with or pledging to their trust departments a sufficient amount of bonds of the United States of America or of the State of Georgia, at their par value, the same to be held and kept as pledged security for the payment from time to time of all uninvested trust funds, the par value of such bonds being at all times equal to the amount of such funds. "Section 2. That the beneficial owners or depositors of all uninvested trust funds in the possession of any bank having and exercising trust powers, trust company, savings bank or security or guarantee company or corporation doing a trust business shall have at all times a first and prior lien on all bonds set aside or pledged to the trust department of any depository coming under the provisions of this Act. " It is my opinion, therefore, that such trust accounts must be secured with bonds. CORONERS-Appointment by Ordinary to fill vacancy pending election. August 5, 1939 Bon. C. L. Peterson R. F. D. :113 Blakely, Georgia This will acknowledge yours of recent date stating that the Coroner of Early County died about three months ago, and requesting my opinion as to who can appoint his successor. Section 21-101 of the Code of Georgia provides: "Coroners are elected, commissioned, qualified and removed as clerks of the superior courts are, and hold their office for four years." Code Section 24-2704, in dealing with how vacancies in the office of the clerk Of the superior court is filled, provides: "If a vacancy occurs (or will shortly), the ordinary of the county where it happens shall give notice in one or more of the public newspapers of said county (if any) and at the courthouse, and at three or more of the most 26 public places of said county, 20 days previous to the day o! the election, which shall be. appointed by him. " Section 24-2707 of the Code provides that as soon as a vacancy occurs the ordinary can appoint some qualified person to discharge the duties of clerk until the vacancy is filled. So when a vacancy occurs in the office of coroner, it seems that the ordinary of the county has the authority to appoint some person to fill the vacancy until an election can be held to elect a successor for the unexpired term in the office. see. Code section 23-701 (5) . Of course, you must realize that this opinion is not official. I am giving you this information in an effort to be helpful to you. The matter about which you write properly addresses itself to the county attorney of your county. CORONERS-Inquests, when held. March 20, 1940 Hon. R. S. Medlin Coroner .Jackson County .Jefferson, Georgia l I am pleased to acknowledge yours of the 19th inst., in which you state 1. that you held an inquest on February 29, 1940, over a dead body, the jury return- ing a verdict that the deceased died from natural causes. Your letter further 1 i states that there were no eye witnesses as to how the deceased met his death, ~ he having left early in the morning to go to the woods to cut cord wood and, ~ upon failure tti return, a search was made for him and he was found dead in the woods. You request my opinion as to your right to hold an inquest over all dead bodies found where there are no eye witnesses. While I am not authorized to render you an official opinion upon this sub- ject, I am glad to quote you the statute which controls such matters. " Section 21-201 of the Code provides: "It shall be the duty of the coroner to take inquests as is hereinafter provided. " Section 21-202 provides: "When inquests shall be held. -Coroners shall take inquest over dead bodies in their respective counties as follows: 1. Of all violent, sudden, or : casual deaths, when there are no eyewitnesses to the killing or cause of the death, and such death occurs under suspicious circumstances. 2. Of all sudden deaths in prison, without an attending physician. 3. Of all dead bod- ies found, whether of persons known or unknown, when it is apparent from the body that violence caused the death, or when the person died or disappeared under suspicious circumstances. 4. Whenever ordered by a court having criminal jurisdiction. It shall be the duty of said court, when- ever an affidavit is made and filed with the court that a dead body is found and that the person came to his death by violence or foul play, to inter- rogate and examine other witnesses, if any, as to the necessity for an in- quest; and should the court then decide that an inquest is essential to the ends of justice, an inquest shall be ordered." COUNTIES-Militia districts, how created and numbered. Honorable E. D. Rivers Governor This wUI acknowledge yours of the 6th instant inclosing Jetter of r. W. W. Garmony, Chairman of the Board of Commissioners of Roads and Revenues of Walker County, together with attached certified copy of the resolution adopted by the Board of Commissioners of Roads and Revenues of. Walker County at its regular meeting on May 2, 1939, relative to the creation of a new Militia District. You request a ruling from me as to whether or not the Executive Department is authorized to give this new Militia District a number, and whether or not the same is to be recorded in the office of the Executive Department. Chapter 23-2 of the Code prescribes the procedure for the laying out, changing, survey, etc. of Militia Districts. After a new Militia District has been created or laid out as provided in said Chapter, it is made the duty of the Ordinary of the county to "have all proceedings in the matter entered on his minutes, after which the district laid out, or line changed or defined, shall be known and regarded accordingly." Section 23-206. Section 23-207 then provides: "It is the duty of such ordinary, if a new district is laid out, to transmit instanter to the Governor such proceedings from his minutes, duly certified, and to publish them for 30 days at the door of the courthouse and in the newspaper where he does his official advertising. " There is no express provision made in the law for the assignment of anumber of the new district. No authority is expressly given to the Governor, or duty imposed upon him, to number the new district as laid out, or to record the certified copy of the proceedings transmitted to him by the Ordinary of the county. I think, however, that a copy of the proceedings as transmitted by the Ordinary should be either recorded or kept on file in the office of the Governor. Although there is no duty expressly imposed upon the Governor to do so, I am of the opinion that if the Governor has information as to the correct number by which said Militia District newly created should be known, he may furnish the same to the Ordinary of the county, or to the Commissioners appointed by the Ordinary to Jay out the new district, so that said Commissioners may include said number in their report as made to the Ordinary. After this is done, and if the Ordinary approves the report of the Commissioners. designating said district by the number furnished by the Governor, said district "shall be known and regarded accordingly. " Section 23-206. COUNTIES-County lines, how changed. July 5, 1940 Hon. W. B. Bostwick, Mayor City of Arlington Arlington, Georgia I am delighted to acknowledge receipt of your Jetter of June 26th in reference to changing the county line of Early or Calhoun Counties so that the City of Arlington may be placed entirely in one county. Paragraph 3 of Section 1 of Article 11 of the Constitution of Georgia (Code Section 2-8204 of the Georgia Code of 1933) provides: "County lines shall not be changed, unless under the operation of a general law for that purpose. " '2s Chapter 23-3 of the Georgia Code of 1933 sets out the general law relating to the change of county lines. These provisions of law follow: "23-301. When ever a citizen or any number of citizens of any county shall desire to have the boundary line of the county of his or their residence changed, they shall file in the office of the ordinaries of the counties to be affected, at least 90 days before the first day of the next term of the superior :;.! court of the counties whose boundaries are to be affected, a petition in writing,. setting forth the exact character of the change to be made, specifying particularly the situation, direction, and existing marks and monuments, if any, of the original line, and describing particularly the direction, location, and length of the proposed new line, and setting forth the reasons for such change. The person or persons applying for such change shall also give'notice of the intention to apply for such change, by publishing the ''same fbi at least 30 days next preceding the term of the superior court to be 'heid:in'the counties to be affected, which term shall bethat occurring next after tlie filing of the petition with the ordinaries, by publishing such notice in a public newspaper having general circulation in each of the counties to be affected by the change, and by posting at the door of the courthouse in each of such counties, and at three public places in every militia district adjacent to the line to be changed, a like notice of the intention to apply for such change, and such posting shall be for a period of at least 30 days next preceding the term of the superior court to be held in the counties next after the posting of the notice aforesaid. 23-302. It shall be the duty of the ordinaries of the counties whose dividing line is sought to be changed, to lay before the grand juries of their respective counties, on the first day of the term of the superior courts to be held next after the publication of the notice and the filing of the petition provided for in the preceding section, the original petition, together with all maps, plats, and other papers that may have been filed therewith, and if such grand juries shall, by a two-thirds vote of their respective bodies, approve the change applied for, they shall so declare in their general presentments, and this action of the grand juries shall be certified at once by the clerks of such superior courts to the ordinaries, board of commissioners of roads revenues, or other officer having the control of county business in the counties to be affected, who shall, within 30 days from the date of such certification, approve or disapprove the application, and certify their action to the ordinaries of their respective counties. When said ordinaries shall have satisfactory evidence of the concurrent approval of the grand juries, and of the officer or officers charged with the control of county business in the counties to be affected, they shall cause to be published for at least 30 days, in a public newspaper having general circulation in their respective counties, an official notice of such concurrent approval and a description of the line approved. 23-303. When all the proceedings shall have been had in the manner prescribed in the preceding sections, and when the same shall have been fairly recorded by said ordinaries on the minutes of their respective courts, the new line or lines shall be held to have been established in lieu of the original line or lines. 23-304. The entire costs of advertising and recording the petition, descriptions, and all other papers and proceedings relating to the proposed change, shall be paid by the person or persons applying therefor. " 29 I know of no way in which a county line can be changed other than by resorting to the foregoing provisions. Of course, it will be possible for the next session of the Legislature to pass a general law dealing with the subject and it could set up some different method for changing county lines. COUNTIES-County Commissioners, uniformity not required. April 25, 1939 Hon. W. T. Standard Rochelle, Georgia This will acknowledge receipt of your inquiry of April 18th in which you request an opinion as to whether the Act of the recent legislature with reference to the election of county commissioners of Wilcox County is constitutional. The Attorney General is authorized to render an official opinion only when so requested by the Governor or by one of the officials of the Executive Department of this State. Therefore, anything which I might say with reference to your question must be regarded as merely my personal views on the subject and not binding upon anyone. The Act approved March 24, 1939, to which you refer, provides that Wllcox County shall be divided into five commissioners districts and each district shall be entitled to one commissioner. After describing the said districts and further providing who shall be commissioner from each district to hold until their successors are elected and qualified, it further provides that on the day the general election is held in Wilcox County for the election of statehouse officers beginning with the year 1940, there shall be held an election to elect five commissioners from the districts as provided in the Act, the three receiving the highest number of votes to hold office for four years, and the two receiving the lowest number of votes to hold office for two years, and their successors to be elected at the general election to be held for the election of statehouse officers in 1942 and to hold their office for a term of four years or until their successors are elected and qualified, and each of said commissioners to serve thereafter for a term of four years. The Act further provides that all of said commissioners shall be elected by the voters from the county as a whole. In my opinion the Act is constitutional. Article 6, Section 19, Paragraph 1 of the Constitution of this State provides as follows: "The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties. " In the case of Bradford vs. Hammond, 179 Ga. p. 40, the Supreme Court after quoting the above provisions of the Constitution stated as follows: "This portion of the constitution has been frequently construed by this court; and there has been no variation, so far as we are aware, from the fixed rule which, most briefly stated, may be said to be that there is no requirement as to uniformity in the creation of boards or commissioners of roads and revenues. Smith v. Duggan, 153 Ga. 463 (112 S. E. 458) ; Rhodes v. Jernigan, 155, Ga. 523 (117 S. E. 432) . " While Paragraph 1, section 3, Article XI of the Constitution provides in part as follows: "Whatever tribunal, or officers, may hereafter be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, 30 except that the General Assembly may provide for the appointment of Commissioners of roads and revenues in any county, and may abolish the office of county treasurer in any county, or fix the compensation of county treasurers, and such compensation may be fixed without regard to uniformity of such compensation in the various counties . . . " it was held in Wilson vs. Harris, 170 Ga. p. 800, that this provision of the Constitution did not deprive the legislature of the power to pass separate and distinct acts for any counties which require county commissioners, and it is not necessary that these acts shalJ be uniform in their operation in all such counties. I do not know of any constitutional provision which would prohibit the legislature from dividing a county into commissioners districts and providing that the commissioners shall be elected from the districts by the voters of the county. COUNTIES-County Treasurer, commission on bonds and highway certificates, when entitled. April 4, 1939 Orville E. Johnson and Associates Certified Public Accountants Chattanooga, Tennessee Your letter of March 29, 1939, inquiring as to commissions to be allowed the Treasurer of Dade County in reference to funds derived from the sale of State Highway Department certificates and payment of bonds, is acknowledged. Section 23-1013 of the Code of 1933 provides that county treasurers in the several counties are entitled to receive commissions for receiving and paying out county funds. The question then arises as to what constitutes county funds. In the case of Hill v. Holmes, 179 Ga. 528, the court held that Highway Department certificates were property of the county and the commissioners were entitled to the possession of these certificates and not the county treasurer. On page 532 of this decision, the court said: "To say that when money has been realized from these negotiable evidences of debt on the part of the State Highway Department to the county it must be returned to the county treasurer, and by him paid out upon warrants, would at least seem to be a useless encroachment upon the funds derived from the sale of the certificates by the commissioners of the county as to debts which can be discharged by the mere delivery of these certificates, and certainly in so far as that may be accomplished. " Therefore, it seems that the county authorities would have the authority to convert these certificates into money and pay over the money so secured upon such debts as are provided that these certificates shall be used in paying. However, if the money realized from the sale of the certificates is actually turned over to the treasurer, and by him disbursed, I am of the opinion that he would be entitled to the commissions provided for by law. But, if the funds are not paid into his hands and disbursed by him, he would not be entitled to any commission thereon. As to the payment of commissions to the treasurer on the payment of bonds, I am of the opinion that he would be entitled to the commissions provided for by law for doing this. In the case of Chattooga County v. Megginson, 139 Ga. p. 509, the court held: 31 "Moneys received from the sale of bonds lawfully issued by a county for the erection of a courthouse are county funds within the meaning of the Civil Code (Section 23-1013) . It follows that for receiving and paying out funds thus acquired by the county, the county treasurer is entitled, within the limits therein specified, to the commissions allowed him by that section. He is also, for making disbursement of county funds in paying accrued interest on the bonds, entitled to commissions under the same section." Since the payment of bonds is made from county funds, it follows that the payment of these bonds is a disbursement of county funds and the treasurer would be entitled to the commissions allowed by law for disbursement. This is not an official ruling since the Attorney General is not authorized under the law to advise in an official way anyone except the Executive Department and the branches, bureaus and departments of the State government, and the committees of the Legislature. However, I am glad to give you the benefit of the above for your convenience, but not officially. COUNTIES-County Surveyors, eligibility. Deputy not exempt from registration. September 5, 1940 Hon. R. C. Coleman Joint-Secretary State Examining Boards This will acknowledge receipt of your letter of August 28th in which you inquire: "1. Is anyone not registered as a Surveyor eligible for appointment as County Surveyor to fill a vacancy created since the present registration law became effective? "2. Would it be necessary for deputies appointed by the County Surveyor to be registered in order to be eligible to do county surveying?" The Act approved March 31, 1937 (Acts of 1937, pages 294-310) regulating the practice of professional engineering and surveying, provides in Section 20 thereof: "The following persons shall be exempt from the provisions of this Act, to-wit: (e) All elective officers of the political subdivision of the State while in the practice of professional engineering or surveying in the performance of their official duties. " In my opinion, the General Assembly used the phrase "elective officers" in this Section of the statute in a sense opposed to "appointive officers, " and in referring to those officers belonging to a class or group holding offices which the law provides shall be filled by an election. The suffix "ive" is defined by Webster as "an adjective suffix signifying, relating or belonging to, of the nature or, tending to. " County surveyors are elective officers of the political subdiVision of the State, (Code of 1933, Section 23-1101) , and therefore come within the classification which are specifically exempt under the provisions of Section 20 (e) of the Act of 1937. I do not believe that the mere fact that a person has been appointed to fill an unexpired term of a county surveyor would remove him from the class of officers exempted under the Act of 1937 and make it incumbent for him to secure a license in order to engage in the practice of professional surVeying in the performance of his official duties. If the General Assembly had intended to refer to the specific officer, rather than to a class of officers, they could very easily have used the phrase "elected officers. " If the person ap- 32 pointed for the unexpired term desires to continue in office after the expiration of that term, he must submit his candidacy to the people and he cannot continue in office unless he is elected. Thus, he has not been removed from the class of "elective officers" by the mere accident of a vacancy in office having occurred and his appointment to fill the unexpired term. It is scarcely to be believed that the General Assembly intended to impose an additional qualification upon a person who serves only a part of a term as county surveyor above that imposed upon a person who is elected for the full term. It is my opinion, therefore, that anyone not registered as a surveyor is eligible for appointment as county surveyor to fill an unel!pired term provided he meets any other requirements imposed by law. In response to your second question, I am quoting from a letter of date April17, 1940, to Honorable G. E. King of Lake Park, Georgia, which was written by me in response to an inquiry by Mr. King as to whether the deputy of the county surveyor was exempt from registering with the State Board of Registration for Professional Engineers and Surveyors. "The act creating the above stated Board is now codified as Chapter 84-21 of the Georgia Code Annotated, and Section 84-2101 of said chapter requires all persons practicing or offering to practice the professions of engineering or of surveying to register as hereinafter provided. Section 842147 of said chapter sets out the persons who shall be exempt from registering, and subsection (e) of said section reads: " 'The following persons shall be exempt from the provisions of this chapter, to-wit: (e) all elective officers of the political subdivision of the State while in the practice of professional engineering or surveying in the performance of their official duties'." "It will be noted that the only exemption afforded under this subsection is to persons who are 'elective' officers, and I am of the opinion that the General Assembly used the word 'elective' in this section of statute in a sense opposed to 'appointive. 'It is necessary, then, to determine whether a deputy county surveyor is an elective or an appointive officer. "Section 23-1105 of the Code provides: "There must be one surveyor for each county, and he is empowered to appoint one or more assistants or deputies, for whose conduct he is responsible. " Other sections require that any such assistant or deputy, when appointed, shall take the same oath as the county surveyor, etc. Clearly, then, a deputy or assistant county surveyor is an appointive, rather than an elective, officer. Therefore, a deputy county surveyor is not exempt from the provisions of the act requiring professional engineers and surveyors to register. COUNTIES-Warrants, how paid. February 12, 1940 Hon. J. W. Hallman, Clerk Commissioners of Roads and Revenues Turner County Ashburn, Georgia I am pleased to acknowledge receipt of your letter of February 6th in which you state: "We have a question up on which local attorneys disagree. Turner County has some outstanding warrants for the years 1935-36, we also have certain 33 funds collected from taxes due for both years. Our Auditor suggested that we combine these funds for both years into one General fund and as far as they go pay all outstanding warrants beginning with those of oldest date. The particular point in question is can we combine these General funds." Code Section 92-3708 provides the following: "Taxes raised for educational purposes, support of the poor, or any specific purpose shall be used for such purposes respectively and none other." In the case of Butts County, et al., v. Jackson Banking Company, et al., 136 Ga. 719, our Supreme Court held: "County authorities levying taxes must by order specify the percentage levied for each specific purpose. Taxes raised for any specific purpose must be used for such purpose and none other. " The court further held in this case: "Where there is in the hands of the treasurer at the end of the year a fund raised by taxes levied for that year for a particular purpose and the fund is insufficient to pay warrants duly drawn thereon to pay the legiti- mate current expenses of the county for that year the fund does not after that year become a general fund but must be used toward the payment of such warrants. Warrants entitled to participate equally in the distribution of such fund in the custody of the court for distribution should be paid therefrom ratably in such proportion as the amount of each bears to the amount of the fund in hand. " The court further held: "When out of a fund raised for taxation for a specific purpose all the demands and indebtedness properly chargeable against that particular fund have been paid, or deducted and there remains a surplus of such fund in the hands of the treasurer the same becomes a general fund, which may be lawfully applied to the balances due on warrants drawn against other specific funds not sufficient for their payment or to other legitimate liability of the county. " It appears from the Code Section and the case above cited that warrants issued for the year 1935 are to be paid from taxes levied and collected for the year 1935 and warrants issued for the year 1936 are to be paid from taxes levied and collected for the year 1936. The payment of these warrants is of course governed by the law as laid down in the Code and the decision of our Supreme Court. . You understand that under the law the Attorney General can not render an official opinion to county authorities. However, I am always glad to be of any assistance that I can to the county officers in the discharge of their duties. This letter is written as a matter of information and is not an official opinion. Therefore, it is not binding on your board. I would suggest that you take this matter up with your county attorney and be governed by his opinion in the matter. I hope that the Code Section and the case from which I have quoted in this letter will be of some assistance to him in determining the question propounded in your letter. COUNTIES-Fiscal authority cannot purchase from himself except on specified conditions. July 6, 1940 Honorable W. T. Rustin County School Superintendent Taylor County Butler, Georgia I am pleased to acknowledge yours of the 3d instant in which you state that you have a member of the County Board of Education who has a Ford agency in your county and that the County Board would like to know whether it would be legal for said Board to purchase from said member seven trucks to be used by the Board to transport school children. Your letter states further that the purchase of the trucks is to be made upon a strict competitive basis. Section 23-1713 of the Code provides: "No ordinary, county commissioner, board of county commissioners, or any other county officer authorized or empowered by law to use public or county funds for the purchase of goods or property of any kind forpublic or county purposes, shall purchase said goods or property from any store in which he is an employee, or in which he i.s directly or indirectly interested, or from any person or partnership of which he is a member, or by whom he is employed, unless by sanction of the majority of the board of county commissioners of the county, or unless it shall be made clearly to appear that the said individual, partnership or owner of the store offers and will sell the goods or property as cheap as or cheaper than it can be bought elsewhere." You will note that this section does not make illegal purchases by a county officer from a store in which he is directly or indirectly interested, or is an employee, etc., if such purchases are authorized by a "majority of the board" or if it clearly appears that the goods purchased from the Board member, or from a store in which he is an employee or is directly or indirectly interested were obtained at a price which is as cheap or cheaper as they could be bought elsewhere. Certainly, if the Board member submits a bid for the sale of these trucks to the County Board at a figure which is as cheap or cheaper than that submitted in any other bid there would be no violation of this statute. Of course, you realize that what is said here i.s purely unofficial and binding ,upon no one, for the reason that under the law prescribing the duties of the Attorney General I have no authority or jurisdiction over matters of this kind. COUNTIES-County taxes, purposes and limits of levy. May 22, 1939 Committee on Economy and Efficiency Replying to your communication of the 17th instant concerning the question of county taxes, I beg to advise that the purposes for which a county may levy taxes are set forth in detail in Section 92-3701 of the Code of Georgia. These purposes I now repeat as follows: "1. To pay the legal indebtedness of the county, due or to become due during the year, or past due. "2. To build or repair courthouses, jails, bridges, ferries, or other public improvements, according to contract. "3. To pay sheriffs', jailers', or other officers' fees for which the county is liable. 35 "4. To pay coroners all fees due them by the county for holding inquests. "5. To pay the expenses of the county, for bailiffs at courts, nonresi- dent witnesses in criminal cases, fuel, employees' wages, stationery, and the like. "6. To pay jurors a per diem compensation. , "7. To pay expenses incurred in supporting the poor of the county. "8. To pay charges for educational purposes, to be levied only ih strict compliance with the law. "9. To pay any other lawful charge against the county. "10. To pay the expenses of working public roads in those counties which have adopted the alternative road law. "11. To pay the expenses of quarantine and necessary sanitation. "12. To pay the county police. "13. To pay for the collection and preservation of records of birth, death, disease, and health. " In addition to the thirteen purposes set forth in the Code above quoted, the Legislature has passed enabling Acts in accordance with constitutional amendments previously adopted adding four additional purposes which are as' follows: "14. To pay county agricultural and/or home demonstration agents, a tax not in excess of one dollar and one-half ($1. 50) per thousand dollars of taxable property." (Georgia Laws, Extra Session 1937-38, page 144.) "15. To provide for payment of old-age assistance to aged persons in need and for the payment of assistance to the needy blind, and to dependent children, and other welfare benefits: Provided, no person shall be entitled to the assistance herein authorized who does not qualify for such assistance in every respect in accordance with enactments of the General Assembly which may be in force and effect prescribing the qualifications for bene- ficiaries hereunder: Provided, the taxes authorized hereby shall not exceed three mills in any one year. " (Acts 1937-38, Extra Session, pages 292-293.) "16. To pay for the conservation of natural resources and fire protection of forest lands. " (This provision of law was enacted by the regular session of the General Assembly of 1939. ) "17. To provide medical or other care and hospitalization for the indi-' gent sick people of the county, not exceeding one niill. " (This provision of law was enacted by the 1939 regular session of the General Assembly. As to the limitation for each particular purpose: Item one, "to pay tbe legal indebtedness of the county, due or to become due during the year, or past due, " was intended originally, as I understand it, to apply to bonded indebtedness, However, under certain decisions of our Su- preme Court this purpose has been construed to authorize levies for past due or accumulated debts by virtue of the language contained in Section 92-3702, as follows: "92-3702. (507) Tax for current expenses and accumulated debts.- The ordinary or other county authority empowered to levy taxes is hereby authorized to levy a tax not exceeding five mills to pay current expenses or accumulated debts of the county, or both, without a recommendation by the grand jury." See in this connection Wright vs. Southern Railway Company, 146 Ga. 581. 582; 91 S. E. 681; Blalock et al., vs. Adams, et al154 Ga. 326; 114 S. E. 345; Southern Railway Company vs. Wright 154 Ga. 334; 114 S. E. 359; 36 Central of Georgia R. Company vs. Wright 156 Ga. 13, 15; 118 S. E. 709; Central of Georgia R. Company vs. Wright, 165 Ga. 631; 142 S. E. 292; Southern Railway Company vs. Gordon County et al., 173 Ga. 907; 161 S. E. 824; Georgia Laws 1937, page 444. Taking Section 92-3702 in connection with Section 92-3706, as follows: "92-3706. (508) Tax for county purposes. -The ordinary or other county authority empowered to levy taxes is hereby authorized to levy a tax for county purposes over and above other taxes authorized by law, not to exceed two and one-half mills, provided two-thirds of the grand jury at the first or spring term recommend such tax;" and in connection with the above decisions, I take it that for county purposes or current expenses, so-called, plus the levy to pay legal indebtedness, the limit may not. exceed $7. 50 on the thousand dollars of taxable property. These decisions, however, refer to a percentage of the state tax instead of to a definite figure, but under the 1937 Act (Georgia Laws 1937, page 444) the language of the Code which formerly referred to 100% and 50% of the State tax has been amended to show five mills in Section 92-3702 and 2! mills in Section 92-3706. Item two "to build or repair courthouses, jails, bridges, ferries, or other public improvements, according to contract" is without limitation except by the necessities of the case within the confines of the contracts. Items three, four, five, six and nine, as follows: "3. To pay sheriffs', jailers', or other officers' fees for which the county is liable; "4. To pay coroners all fees due them by the county for holding inquests; "5. To pay the expenses of the county, for bailiffs at courts, nonresident witnesses in criminal cases, fuel, employees' wages, stationery, and the like; "6. To pay jurors a per diem compensation; "9. To pay any other lawful charge against the county;" are classified as current expenses or general county purposes and should be confined to the limit of five mills under Section 92-3702. However, under Section 923702, construed in connection with Section 92-3706, the levy for current expenses or general county purposes and to pay accumulated debts must not exceed $7. 50 on the thousand dollars of taxable property. The case of Alabama Great Southern R. Company vs. Harrison, 54 Ga. App. 368, 188 S. E. 49, in effect holds this to be true although at the time that decision was rendered the two sections of the Code above referred to carried the words relating to percentages of the state tax rather than the fixed sum now shown in the sections quoted above. Item seven, "to pay expenses incurred in supporting the poor of the county, " is limited to one and a quarter mills or $1. 25 on the thousand dollars of taxable property. See Section 92-3715, as follows: "92-3715. (506) Tax for the support of paupers. -The ordinary or other authority empowered to levy taxes is authorized to levy for the support of the paupers of the county a tax not in excess of three mills; provided, that said tax shall not exceed li mills except upon recommendation of two suc- cessive grand juries of the county made by a two-thirds vote of said grand juries." (The provision authorizing a levy of three mills upon recommendation of two successive grand juries made by a two-thirds vote of said grand 37 juries was added to Section 92-3715 by an Act of the General Assembly during the 1939 session. ) Prior to the Act of 1937 (Georgia Laws 1937, page 444) , this section also car- ried the provision that the levy should be limited to one-fourth of the state tax, but this is cleared up by the Act referred to. Item eight, "to pay charges for educational purposes, to be levied only in strict compliance with the law," is limited to five mills or $5. 00 on the thousand dollars of taxable property. This is a county-wide tax, excluding the territory in certain municipalities having independent local school systems. See Con- stitution, Article VIII, Section 4, Par. I, Chapter 32-11, Code 2-6901. However, this five mills for county-wide educational purposes does not in- clude whatever levy may necessarily be made for interest and sinking fund on school bonds. Item ten, "to pay the expenses of working public roads in those counties which. have adopted the alternative road law, " is limited to four mills or $4. 00 on the thousand dollars of taxable property. In this connection see Section 95- 803 of the Code, which reads as follows: "95-803. (696) County tax for roads. -The Commissioners of roads and revenues, or the ordinary, as the case may be, shall levy a tax, additional to any other authorized by law, of not more than four-tenths of one per centum on all of the taxable property in the county, and the funds so raised by said taxation, together with the commutation heretofore provided for, shall be used and expended for the purpose of paying the salaries and wages and for working, improving, and repairing the public roads, as set forth in this chapter. (Acts 1890-91, p. 135; 1911, p. 56.)" See also in this connection notes under this section in Book 27 of the An- notated Code at the bottom of page 202 and top of page 203 and cases cited there- under, among them Wright v. Alabama Great Southern Railroad Company, 150 Ga. 140, 102 S. E. 821; Central of Georgia Ry. Company v. Meriwether Count~, 148 Ga. 423, 96 S. E. 884; and others. Certain counties undertook to have special legislation passed increasing the amount which might be levied for roads, but objection to the payment of such additional levies has always been made upon the theory that such acts would violate Article I, Section IV, Paragraph I, Section 2-401 of the Code, pro- hibiting the enactment of a special law in any case for which provision has been made by an existing general law. See the Editorial Notes under Paragraph 13 of Section 92-3701 and under Section 95-803 of the Code. Item eleven, "to pay the expenses of quarantine and necessary sanitation, " provides for a special tax which would be unlimited except by the necessities of the case, it having been authorized under a special enactment and cannot be classified as a general county purpose or as a current expense. Item twelve, "to pay the county police, " authorizes a tax which is unlimited except by the necessities of the case, the law authorizing the employment of county police by a county having been enacted subsequent to the enactment of the provisions of law limiting the taxes for current expenses or general county purposes. Item thirteen, "to pay for the collection and preservation of records of birth, death, disease and health," authorizes a tax which is unlimited except 38 tiy the necessities of the base, not being incorporated in or a part of the general county purposes or current expense limitation. The additional Item '14, ''to pay county agricultural and/or home demonstration agents," is provided for by a constitutional amendment passed and ratified in 1937, Georgia Laws 1937, page 1128, and authorized as a special levy with i!. liniitationof one and orie-half mills by an Act passed at the special session l937..:3s/G~otgia Laws 1937-38 Special Session, page 144. ''' The additional Item 15, "to pay old age assistance to aged persons in need, and for the payment of assistance to the needy blind, and to dependent chlldren,and other welfare benefits, "is provided for by a constitutional amendment a passed and ratified in 1937, Georgia Laws 1937, page 1124, and authorized as a special levy by counties with limitation of three mills by an Act passed at the extra session of 1937-38, Georgia Laws, Extra Session, 1937-38, page 292. The additional Item 16, "to pay for the conservation of natural resources, and fire protection of forest lands," authorized a tax which is unlimited except by the ne classification and certification of teachers. They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration of the common school fund . . . They shall have general supervision of the State Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for the efficient operation of the common school system. " These authorizations of law, in my opinion, are adequate and comprehensive enough to empower the State Board of Education, if it so desires, to act as an accrediting commission for the common and high schools of the State and to promulgate reasonable rules and regulations appertaining to the qualifications and conditions to be met by such schools in order to qualify as an accredited school. The powers conferred upon the State Board of Education to provide rules and regulations for the supervision of all public schools of the State, to provide a course of study for the schools receiving State aid, etc., are not mere ministerial powers. In exercising such powers the Board would be acting in a quasijudicial or quasi-legislative capacity and, this being true, it could not delegate the power and authority to set up standards for the accrediting of schools to some other person, officer or body. The matter of setting up standards for the accrediting of schools receiving State aid is a matter which involves a vast amount of discretion. The legislature itself, having conferred on the State Board this power, did so without prescribing any routine, straight-jacket statutory standards, limitations or requirements to guide the Board, or to indicate the exact manner in which the legislature desired that the power be exercised, Therefore, it is my clear opinion that the State Board of Education cannot delegate the powers conferred upon it to others and, accordingly, it cannot set up a commission to accredit schools since the State Board itself must act as such accrediting body if it undertakes to accredit schools. State ex. rel. School District No. 29, Flathead County v. Cooney, Governor, 59 Pac. (2nd) 48; Hoffsommer, County Supt. of Public Instruction v. Hayes, 217 Pac. 477; State ex rel. Wolyn v. Appalachocola Northern R. Co., et al, 88 So. 310; King v. Wooster, 208 Pac. 656; 46 C. J. 1034, Sec. 297. Having the power to provide a course of study and to prescribe standards of efficiency and qualifications and conditions under which schools may be given an accredited rating, it necessarily follows that the State Board of Education would have, as an incident of such power, the power to vary, in a uniform manner, or to change from time to time, the rules or regulations governing the accrediting of schools. For example, should an emergency arise which rendered those rules or regulations governing the accrediting of schools unreasonable and harsh in their operation, the Board would have the power, by amending such rules and regulations, to remedy the situation by appropriate amendments to the rules. For instance, if because of the inability of the State to supply promised school funds certain of the schools were unable to operate 80 175 days, or some like arbitrary number required as a condition of retaining accredited standing, the State Board of Education could, if it saw fit, vary the rules and regulations in a uniform manner by reducing the required number of school day operations so as to not penalize the pupils of these schools which were forced to cut short their terms because of the general acute financial crisis existing with respect to school finances. In passing, it is interesting to note that Section 7 of the State Board of Education Act, supra, even goes to the extent of authorizing the State Board of Education to prescribe standard requirements for universities, colleges, normal or professional schools conferring degrees or issuing diplomas in this State. While the State Board of Education has no jurisdiction with reference to an appeal from the decision of the voluntary accrediting commission to which you refer in your letter, since it operates without any authority or sanction of law, I know of no valid legal reason why such accrediting commission, if it saw fit, could not vary its rules so as not to work a hardship upon the schools whose terms were cut short because of lack of funds. Summarizing: it is my definite opinion that the State Board of Education itself has the authority to act as an accrediting commission; it cannot create an accrediting agency by the delegation of this authority; the present accrediting commission to which you refer in your communication is merely a 'volunteer' commission as distinguished from a legally authorized accrediting agency. EDUCATION, STATE BOARD OF-Authority to change or increase teacher load. May 24, 1939 Committee on Economy & Efficiency This will acknowledge yours of the 23d instant in which you quote the first full paragraph on page 6 of my opinion to your Committee under date of May 16, 1939, and request my further opinion upon the following question: Assuming that the State Board of Education, on account of financial conditions, is forced to change the number of teachers to be allotted to local units of administration in group 5 from 20 to 25 in the elementary grades (that is, an increase of 25% in the teacher load) , would the Board have to apply the same ratio of 25% in all groups, or would the State Board have the power to vary the ratio of increase between the different groupings under Section 5? In my opinion of May 16 it was held that under a proper construction of Section 5 of the Act of 1937 (Ga. L. 1937, p. 882), the State Board of Education, although vested with the power to vary the number of teachers to be employed in the various local units of administration throughout the State, could not change the basis prescribed by the statute for determining the number to be employed under the various groupings of the statute, said basis being "upon the basis of average daily attendance for the preceding school year" (See page 6, Opinion, May 16, 1939). Also, after quoting Section 1 of the statute, it was said: ". . . the language of Section 1 makes it mandatory upon the State Board of Education to equalize educational opportunities throughout the State, but only 'so far as possible'. Wherever and whenever it is possible to equalize educational opportunities throughout the State, the State Board 81 of Education is without discretion in the matter, and must equalize said opportunities." Keeping the fundamental and underlying purpose of the 1937 Act in mind- the equalizing of educational opportunities throughout the State- and further enlarging upon the construction of Section 5 of the Act given in my previous opinion, I am of the opinion that where it is found by the State Board of Education that upon applying the minimum salary schedule, as fixed by said Board, to the total number of teachers required to be employed by the various local units of administration throughout the State, there has been insufficient money appropriated or made available for use by the Board in making distribution to local units, the Board may: (1) Change the teacher loads for the school systems in any one, or in all five, of the groupings of Section 5; (2) Increase the teacher load in group (e) by 25% and at the same time leave the other groupings unchanged; (3) Increase the teacher load in group (a) by 25%, and at the same time reduce the teacher loads in groups (b), (c), (d) and (e); (4) Increase the teacher load in group (a) by 25%, and reduce the teache load in group (b) by 10%, in group (c) by 15%, in group (d) by 20%, and in group (e) by 25%, if, in doing so, educational opportunities are more nearly equalized. In other words, Section 5 vests the State Board of Education with a broad discretion in making variations in the number of teachers to be employed by the various local units of administration. This discretion, insofar as I am abl.e to determine, is limited only by three things, to wit: (1) The Board can make no variations when the same are unnecessary, as a matter of sound discretion; (2) The Board can make no variations which would tend to promote inequality rather than equality, in the educational opportunities afforded to the children of school age in this State; and (3) The Board cannot change the basis prescribed by the statute for making allotments of teachers, to wit, average daily attendance for the preceding school year. In connection with these three limitations upon the discretion of the Board, I might point out although the Board could, in the exercise of a sound discre- tion, change the number of teachers to which a local unit of administration is entitled by increasing the teacher load in the group into which the particular local unit of administration falls, the Board would not have the authority to change the teacher loads of teachers in school systems falling in the same group. For example, for all school systems falling in group (e) the Board could Prescribe a teacher load of 25 pupils and major fraction thereof in the elementary grades, but it could not prescribe that School X falling in said group should have 25 pupils to each teacher and School Y, falling in the same group, but located in another county, should have only one teacher to each 35 pupils in the elementary grades. EDUCATION, STATE BOARD OF-May qualify children at State institutions for federal aid in vocational training. May 19, 1939 Honorable E. D. Rivers, Governor . You ask my opinion as to how the administration of each of the following Institutions, namely: 82 1. Academy for the Blind at Macon, 2. Georgia School for the Deaf, 3. Georgia State Training School for Boys, 4. Georgia Training School for Girls (White Division, located in Fulton County), can be adjusted so as to qualify the children therein for vocational training and provide teachers for such training from Federal funds under the GeorgeDeen Act. In order to secure the benefits of Federal appropriations for vocational education, the State must, through the legislative authority thereof, designate or create a State Board, consisting of not less than three members and having all necessary powers to cooperate with the Federal Department of Interior in the administration of the provisions of the Vocational Education Act. It is expressly provided that the State Board of Education, or other board having charge of the administration of public education in the State, or any State board having charge of the administration of any kind of vocational education in the State, may, if the State so elect, be designated as the State Board, for the purposes of the vocational education acts. See 20 U.S. C. A., Sections 16 and 15m. Georgia Laws 1937, page 864 at 867 (Section 4) provides that the State Board of Education is authorized and empowered to accept, on behalf of the State of Georgia, any fund which may be now or hereafter provided for or appropriated by Congress for vocational education or for other educational purposes, and to use so much of the common school fund or other funds appropriated by the General Assembly as may be necessary to match any such Federal aid or meet the terms of any Federal grant to the State for any such educational purposes. It will be seen, therefore, that before children in the above named institutions can receive the benefits of vocational training from Federal funds, it will be necessary that the State Board of Education have supervision and control of such institutions. The State Department of Public Welfare is now charged with the control and supervision of each of the institutions in question, but under Section 6 (15) of the Public Welfare Department Act (Georgia Laws 1937, page 355 at 362) the State Department of Public Welfare is authorized and empowerEd to delegate in whole or in part the operation of any institution or other activity of such department to any other appropriate department or agency of the State. It is my opinion, therefore, that the State Department of Public Welfare may, with the approval of the Governor and with the consent of the State Board of Education transfer to the State Board of Education in whole or in part its functions, powers and duties relating to the four institutions under consideration. The question arises, however, as to how the Federal funds appropriated for vocational education can be matched by the State, as required by Chapter 2 of 20 U. S. C. A. Although Georgia Laws 1937, page 864 at 867, provides in Section 4 thereof that the State Board of Education may use common school funds or other funds appropriated by the General Assembly to match Federal aids or grants for educational purposes, it is my considered opinion that the common school funds or other funds appropriated to date to the Department of Education could not be used to match Federal funds for vocational education purposes in the above named institutions on account of the transfer of said institutions to the supervision of the State Board of Education. I think, however, that funds would be 83 available for such purposes from the appropriations made to the State Department of Public Welfare under the General Appropriations Act of 1937 for the support and maintenance and operating cost of these institutions. Under the General Appropriations Act of 1937, page 67, there is appropriated to the State Department of Public Welfare the sum of two million dollars for the support and maintenance of the State institutions under its control and management, and there is an additional sum of $382, 500. 00 appropriated to that department for operating costs, etc. Section 31 (page 72) of the General Appropriations Act of 1937 provides as follows: "In the event any duties, purposes and objects for which appropriations are made in this Act, shall be transferred under authority of law to a State agency other than that to which appropriated, the appropriations for such duties, purposes and objects shall follow to such State agency to which the duties are transferred; and, in case the appropriation to be so transferred is not a separate item, the Governor, State Auditor, and the head of the State agency to which the appropriation is made in this Act, are authorized to determine the amount to be transferred and set up to the transferee State agency. Nothing in this section shall be construed to increase any appropriation for the duties, purposes and objects named in this Act." The General Appropriations Act of 1937 is still in effect under and by virtue of Section 30 thereof (Georgia Laws 1937, page 72) , no new Appropriation Act having been enacted. I see no reason why part of the transferred appropriation could not be used to match Federal funds for the purpose of vocational education in these institutions. EDUCATION, STATE BOARD OF-May prescribe different salary basis of teachers for additional period operated by local unit. March 23, 1939 Hon. M. D. Collins State Superintendent of Schools I have your letter of March 15th in which you ask whether or not the salary schedules for teachers must be maintained at not less than the minimum salary Prescribed by the State Board of Education where a school is operated by a local unit of administration beyond the term during which the State is able to provide funds for the payment of such teachers or beyond the seven months' school term. The applicable sections of the Equalizing Opportunities School Act of 1937 (Ga. Laws 1937, pages 882-892) , are Sections 8 and 10 of said Act which read as follows: "Section 8. The State Board of Education shall annually fix a schedule of the minimum salaries which shall be paid to the teachers of the various classes prescribed by them out of the public school funds of the State, which salary schedule shall be uniform for each of the classes of teachers fixed by the State Board of Education; Provided, however, that the State Board of Education, in its discretion, may authorize or provide for variations from such schedules whenever, in its discretion, such variations may be necessary. " "Section 10. The board of education of any local unit of administration, as defined by this Act, or the board of trustees of any local school district, may operate the schools of such county, or city, or school district, for a 84 longer period than seven months during any school year, or may, in its discretion, supplement the State schedule of salaries, and employ additional teachers not provided for in this Act; Provided, however, that teachers in such schools shall receive not less than the minimum salary prescribed by the State Board of Education on the State schedule for any period during which the school term may be extended, unless the State Board of Education, in its discretion, shall otherwise direct. Provided, further, that any such local unit as herein defined may operate kindergartens or grades above the eleventh solely from local funds." I assume that the State Board of Education has fixed a schedule of minimum salaries for teachers for the seven months' period of the 1938-1939 school year. For such period of seven months or less as the State is able to pay the salaries of school teachers, the minimum salary prescribed by the State Board of Education must be paid. Evidently, when the State Board of Education fixed the minimum salary schedule it anticipated that the State would be able to pay such salaries for the full seven months' term. Provision was made in Section 10, supra, of the said Act whereby local units of administration were given the privilege of operating the schools under its jurisdiction for a period longer than seven months during any school year. That section contains the following provision: "Provided, however, that teachers in such schools shall receive not less than the minimum salary prescribed by the State Board of Education on the State schedule for any period during which the school term may be extended, unless the State Board of Education, in its discretion, shall otherwise direct. " It is my opinion that the State Board of Education may in its discretion, if it desires to do so, prescribe a different salary basis for teachers' salaries from that fixed by it for the period in which the State has funds to pay the teachers' salaries for the additional period of any school year where the local unit of administration operates the schools and pays the teachers' salaries. EDUCATION, STATE BOARD OF-Authority over budgets of local units. Allotment of teachers as between white and colored races. May 16, 1939 Committee on Economy and Efficiency This will acknowledge yours of the 11th instant requesting my opinion upon certain questions with reference to the power and authority of the State Board of Education over budgets submitted by the local units of administration, and over the allotment of teachers as between white and colored races. Question 1. Under a proper construction of the phrase "subject to such variations as in its discretion may be necessary" as used in Section 5 of the Act approved February 10, 1937 (Ga. L. 1937, p. 882, 884), relating to the determination by the State Board of the number of teachers which may be employed by the local units of administration- (a) Does the State Board of Education have the authority to either approve or disapprove in its entirety the budget submitted by a local unit of administration; (b) Does the State Board of Education have the authority to approve or disapprove, or make variations in any portion of the budget submitted by a local unit of administration, making such financial adjustments as in its discretion are necessary; 85 (c) Does the State Board of Education have the authority to accept or reject the budget of a local unit of administration, unless it appears that the teacher load for each respective school in the county covered by the budget complies with the minimum pupil load as provided in Section 5-if in the discretion of the State Board such action may be deemed necessary. For the sake of brevity, each subdivision of the question will be discussed without restating the question, but under appropriate corresponding subhead letters. Answer (a). Section 5 of the Act provides in part: "The State Board of Education shall annually determine, subject to such variations as in its discretion may be necessary, the number of teachers to be employed for the minimum term prescribed by Section 1 of this Act, upon the basis of average daily attendance for the preceding school year, as follows:" (Then follows the teacher scale prescribed by the statute for determining the pupil load of each teacher in the various five groups as classified by Section 4 of the Act). (Emphasis supplied.) The reference to Section 1 makes it necessary to also quote said section which reads: "It is hereby declared to .be the public policy of the State of Georgia that educational opportunities for all of the children of school age in this State shall be equalized throughout the State by the State Board of Education, so far as possible. " In passing, it should be noted that the language of Section 1 makes it mandatory upon the State Board of Education to equalize educational opportunities throughout the State, but only "so far as possible". Wherever and whenever it is possible to equalize educational opportunities throughout the State, the State Board of Education is without discretion in the matter,. and must equalize said opportunities. (Emphasis Supplied.) In determining the question propounded, consideration must also be given to Section 8 of the Act which provides: "The State Board of Education shall annually fix a schedule of the minimum salaries which shall be paid to the teachers of the various classes prescribed by them out of the public funds of the State, which salary schedule shall be uniform for each of the classes of teachers fixed by the State Board of Education; Provided, however, that the State Board of Education, in its discretion, may authorize or provide for variations from such schedules whenever, in its discretion, such variations may be necessary. " (EmPhasis supplied. ) Other cognate sections bearing upon the question of budgetary control by the State Board are Sections 11, 12 and 13. Section 11 is quite similar to Sec- tion 8, except that Section 8 deals with minimum salaries, whereas Section u deals with both minimum teachers' salaries and authorizes the Board "to fix the minimum number of teachers which may be employed by each local unit of administration under the classification of local units prescribed by this Act. " Section 12 provides, in part, that within the period prescribed by the statute, When the Board of Education of each local unit shall have received the information as to minimum teachers' salaries and the minimum number of teachers Which may be employed by each local unit of administration, they shall file with the State Superintendent of Schools upon forms prescribed by the State Board of Education and prepared and furnished by the State Superintendent of Schools, a budget, containing such information as may be required by the State Board of Education, and showing proposed expenditures for the ensuing school Year, the purposes for which it is proposed such expenditures shall be made, and the sources from which such funds will be derived." (Emphasis supplied.) 86 Section 12 further provides that when the proposed budget of any local unit of administration has been approved by the State Board of Education or by the State Superintendent, "the same shall become operative and shall be followed in all expenditures made by such local unit of administration during the ensuing school year. " Then follows a proviso which divests the State Board of Education or the State Superintendent of Schools of any authority to approve any budget which does not provide "for expenditures for teachers' salaries of at least three-fourths of the total amount available to such local unit for expenditure during the ensUing school year, exclusive of the principle and interest of any bonded indebtedness of such local unit. " Section 13, which deals with the power of the State Board or State Superintendent to approve or disapprove budgets, provides, in part: "All budgets submitted in accordance with the foregoing section shall be passed upon by the State Board of Education, or the State Superintendent of Schools, within 30 days after they are received. If any item or items in the proposed budget shall be disapproved, the board of education of tne local unit shall be entitled to notice thereof and a hearing thereon. If the budget submitted shall comply with the provisions of this Act, and of the laws of this State, and shall reqUire the disbursement of no more than tne equitable proportion of State funds to which such local unit may be entitled, the same shall be approved by the State Board of Education, or the State Superintendent of Schools in the event such duty shall be delegated to him by the State Board of Education, and shall become the operating budget for the public schools of the local unit for the ensuing school year. " (Emphasis supplied.) Summarizing these provisions with reference to the approval or disapproval of a budget submitted by a local unit of administration, we find that the State Board, or the State Superintendent, as the case may be, is reqUired-in fact, it is mandatory-to approve all budgets- (1) Which shall comply with the provisions of the 1937 Act; and (2) Which shall comply with the provisions of the laws of this state; and (3) Which shall require the disbursement of not more than the equitable proportion of State funds to which such local unit may be entitled. (Section 13). The State Board or Superintendent, must disapprove any budget submitted which does not provide(1) For expenditure for teachers' salaries of at least three-fourths of the total amount available to such local unit for expenditure during the ensuing school year, exclusive of principal and interest of any bonded indebtedness of such local unit (Section 12) . About the matters just listed, the Board or Superintendent cannot exercise any discretion as to approval or disapproval. So the authority to either approve or disapprove a budget submitted by a local unit of administration depends upon whether such budget complies with the provisions of the 1937 Act, with the laws of the State and reqUires the disbursement of not more than the eqUitable proportion of State funds to which such local unit may be entitled, which, of course would involve a determination of whether the budget provides for the expenditure for teachers' salaries of at least three-fourths of the total amount available to such local units for expenditure during the ensuing school year, exclusive of principal and interest on bonded indebtedness. There are certain other details with reference to the compilation of budgets over which the State Board may exercise considerable discretion and control. For instance, under Section 12 the State Board is authorized to require that the 87 budgets submitted by the local units shall contain such information as the State Board requires. A budget submitted by a local unit which does not contain the information required by the State Board is subject to disapproval by the Board. Likewise a budget which does not properly show the sources from which school funds covered by the budget are to be derived, or how and for what purposes expenditures of school funds are to be made would merit the disapproval of the Board (Section 12). Section 13 clearly vests the State Board with the authority to approve or disapprove "any item or items in the proposed budget"; that is, if the proposed budget does not meet the requirements as aforesaid, the Board may disapprove it as to that item or items not complying with the law or with the requirements of the State Board. I do not think that the Board would have authority to disapprove the entire budget if only one or two items thereof were defective, whereas all of the other listed expenditures were in strict accordance with the Act and with the law. In other words, the Board could not act arbitrarily in the matter. However, if all items of the budget as a whole were not in compliance with the law and the requirements of the Board, the Board could disapprove the entire budget. Your Committee has specifically requested my construction of the phrase "Subject to such variations as in its discretion may be necessary" as embodied in Section 5 above quoted, as it relates to the power of the State Board to modify or vary, either by reduction or addition, the number of teachers to be employed by the various local units for a minimum term of seven months. The phrase "subject to such variations as in its discretion may be necessary", necessarily relates to "the number of teachers", rather than to the words "upon the basis of average daily attendance for the preceding school year", in other words, the Board may change the number of teachers to be employed, but it cannot change the basis prescribed by the statute for determining the number to be employed. For example, if a local unit in group 5 had an average daily attendance of children for the preceding school year of 500 made up of 400 elementary and 100 high school pupils, under Section 5(e) it would be entitled to at least 20 elementary teachers and 7 high school teachers, that is, the local unit is entitled to one teacher for each 15 pupils in the high school (or a total of 6), plus one teacher for the major fraction represented by the 10 additional pupils. After this computation is made, it is then the duty of the State Board of Education to notify the local unit of administration as to the total number of teachers it is entitled to employ, both in the elementary grades and the high school and to advise the minimum salary schedule to be paid such teachers (section 11). If, however, it i.s found by the State Board of Education that upon applying the minimum salary schedule to the number of teachers to be employed by the various local units of administration throughout the State there has been inSUfficient money appropriated or available for use by the State Board for distribution to the local units, the Board, exercising its discretion under Section 5 might change the teachers load groupings of the statute so as to increase the teachers load. For instance, the State Board could provide that in school systems in group 5 only one teacher shall be allowed for each 30 pupils and major fraction thereof in the elementary grades, and one teacher for each 20 pupils and major fraction in the high school grade, figured upon the basis of average daily attendance for the preceding year; and could thus change the number of teachers employed by the local units of administration. Answer (b). What is said in answer to subsection (a) of the question substantially answers the question as to whether the State Board of Education has 88 the authority to approve or disapprove, or make varlations in any portion of the budget submitted by a local unit of administration. Answer (c). As referred to above, Section 11 of the Act authorizes the State Board of Education to fix the minimum schedule of teachers' salaries and to determine the minimum number of teachers which may be employed by each local unit of administration. Neither this section of the statute nor any other section attempts to vest the State Board with the authority to assign any individual teacher to any particular grade, this power apparently being left with the local units of administration. The Legislature apparently left these powers to the administrative discretion of the officials of the local units of administration. The problem which is presented when an effort is made by the administrative officials to make assignments of teachers so that each teacher will have a minimum pupil load is one which ls very difficult, if not impossible of a solution. That is, so long as there are graded schools and a teacher is assigned to each grade, and no one can control the number of children who may be in any particular grade, it is quite unlikely that teachers may be assigned in such a manner that each one may have a minimum teacher's load. Yet, under section 13 of the Act, the State Board is authorized to disapprove any item of the budget which does not meet its approval. If, therefore, the budget of a local unit of administration showed that one of the items of proposed expenditures for the ensuing school year, out of State funds, was the payment of a teacher's salary in a high school of a school system under group 5, and it was shown that said teacher had in her classes only seven pupils, the State Board of Education would be authorized to disapprove of this item of the budget, provided such disapproval were based upon reasonable grounds and such action was not arbitrary and capricious. Question 2. Construing the proviso of Section 12 of the Act which reads: "Provided that no budget shall be approved by the State Board of Edu- cation or by the State Superintendent of Schools unless there be provided for expenditures for teachers' salaries of at least three-fourths of the total amount available to such local unit for expenditure during the ensuing school year, exclusive of the principal and interest of any bonded indebtedness of such local unit, " is it not the law that the only exceptions that a budget approved by the State Board of Education or by the State Superintendent of Schools can carry are the following: (a) Principal and interest on any bonded indebtedness of each local unlt; (b) Providing for not more than one-fourth of the expenditures of said budget for purposes other than teachers' salaries. You desire also that in answering the question I deal with the proposition of whether or not, in view of Section 15 of the Act, the Equalizatlor Fund provided in Code Section 32-948 must be included in the budgets of the local units of administration and taken into account in computing whether or not "threefourths of the total amount available" to local units of administration is being expended for teachers' salaries. You also desire that I address myself to the proposition of whether the vocational education fund is required to be included in the budget submitted, and taken into account in determining whether three-fourths of the total amount available to the local units is being used to pay teachers' salaries. The budgets of the local units of administration, generally speaking, are made up in accordance with the provisions of Sections 8, 9, 11, 12 and 13 of the Act. The substance of these sections has been previously quoted or summarized, 89 and will not be repeated. The proviso of Section 12 quoted above must necessarily be construed in pari materia with Sections 14 and 15. Dealing with these sections in their inverse order, Section 15 provides: "Nothing in this act shall be construed to affect or modify Section 32-948 (of the Code of Georgia of 1933, relating to creating an equalization fund for the public schools, and providing for its distribution), but said section shall remain of full force and effect. " (Parenthesis supplied.) We have supplied the parenthesis in quoting the section in order to point out that the language contained in parenthesis is merely descriptive of the Code Section. In other words, stripped of this descriptive language Section 15 merely provides that "nothing in this act shall be construed to affect or modify Section 32-948, but said Section shall remain of full force and effect. " One of the statutory rules of construction is that "the ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter." Code Section 102-102 (1). Applying this rule, what, then, is the ordinary signification of the words "affect" and "modify". Webster's New International Dictionary defines the word affect as follows: "To lay hold on; to act upon; to produce an effect upon; to touch." This same dictionary defines the word modify as follows: "To limit or reduce to an extent or degree; to moderate; to qualify; lower; to change somewhat the form or quality of; to alter somewhat." Thus we find that the Legislature in Section 15 has not only declared that Section 32-948 of the Code of 1933 should remain in full force and effect; but also that no construction should be placed upon the Act of 1937 (Ga. L. 1937, p. 880, 892), which would lay hold on, act upon, produce an effect upon or touch Section 32-948 of the Code of 1933 or which would limit or reduce in extent or degree, moderate, qualify or lower, or change somewhat the form or quality of or alter the provisions of Section 32-948. (Emphasis supplied. ) Section 32-948 provides: "Extra appropriation to common school fund. Equalization fund proVided. -In addition to the regular appropriation for the support of the public schools, the General Assembly shall provide an equalization fund, which shall be disbursed by the State Board of Education for the purpose of more nearly equalizing the educational opportunities of the children of the several counties. The State Board of Education, in its distribution of said equalization fund to county boards of education, shall take into consideration the possible returns from taxable values for school purposes, the extent to which local tax aid has been utilized, the educational needs, and the local inequalities existing in the several counties. No county or independent system shall share in the qualization fund for any year unless it leVies at least five mills for a local tax for its public schools for that year. " It will be observed that the State Board of Education must take into conSideration five factors in determining how and to whom equalization funds shall be disbursed, to wit: (1) Possible returns from taxable values for school purposes; (2) The extent to which local tax aid has been utilized; (3) The educational needs; (4) The local inequalities existing in the several counties; and (5) Whether or not the county seeking to share in the equalization fund leVies at least five mills for a local tax for its public schools for that year. 90 It is significant that this statute does not prescribe, as one of the factors to be considered by the State Board in determining what distribution of equalization funds shall be made, that the Board shall determine whether three-fourths of such funds shall be used by the units receiVing it to pay teachers' salaries, and, in fact, no limitations or restrictions are placed upon the use of these funds for any particular school purpose. In other words, prior to the enactment of the 1937 School Act the several counties or independent school districts receiVing equalization funds could use the entire amount of such funds for the payment of school teachers, or use the entire amount for the payment of bus drivers and other costs of transportation, or could use it for any other proper school purpose. Therefore, if it were held that eaualization funds must be included in the budgets of the local units of administration and are subject to the proviso of Section 12 above quoted, such a construction would be antagonistic to the plain language of Section 15 which declares that the equalization funds shall not be affected by the 1937 Act. It can not be said that the mere act of including equalization funds in a budget submitted to the State Board of Education for approval does not affect such funds for the reason that the Act of 1937 specifically exempts from its proVisions Section 32-948 of the Georgia Code of 1933 which relates to equalization funds and their distribution. If the Act of 1937 is not to be construed as affecting equalization funds, (and this is the construction that Section 15 requires us to place upon it) then the local unit of administration is not required to include equalization funds in its budget. Moreover even had Section 15 of the statute not prescribed in very plain and unambiguous terms a very definite rule of construction to be followed in construing the Act of 1937, and were there a conflict between Section 15 of the Act and the proViso of Section 12 of the Act, the rule of construction that when there is a conflict between two parts of a single act, the latest in position will be declared to be the law, as from its position it is presumed to be the last expression of the legislative will, must be applied, with the result that the same conclusion as that announced above must be reached. Lamar v. Allen, 108 Ga. 158, 164; Board of Drainage v. Carey, 30 Ga. App. 378 (1). I am of the very definite opinion, therefore, that a local unit of administration, in making up its budget and in calculating whether three-fourths of the funds available to it are to be spent for the payment of teachers' salaries does not have to take into account amounts received or anticipated from equalization funds. It seems quite fundamental to me that if the Legislature had intended that the Act of 1937 apply to or affect the equalization fund, it would have been wholly unnecessary for that body to have written into the Act Section 15, for in the absence from the Act of Section 15, or any similar proVision, the Act of 1937, being the last expression of the legislative will upon the subject of distribution of common school funds by the State Board would have governed the disbursement of equalization funds. The fact that the Legislature, apparently realizing that unless some express proVision were written into the statute clearly expressing its intent that the equalization fund not be affected or modified by the Act, or that the Act itself should not be construed as affecting equalization funds, deliberately wrote into the statute the language contained in Section 15 insulating, so to speak, Section 32-948 of the Code against the Act of 1937, clearly manifests, to my mind, the legislative intent that no part of the Act of 1937 affects or modifies either the distribution or expenditure of equalization funds. With reference to the vocational funds, the proVisions of Section 14 are controlling. The language of Section 14 is somewhat different from that of Section, 91 15, for wh~reas Section 15 broadly declares that nothing in the Act of 1937 shall be construed to affect or modify the equalization fund in any respect, Section 14 merely provides that nothing in the Act of 1937 shall affect the distribution of "Federal funds allotted to Georgia under the Smith-Hughes Vocational Education Act, or other Acts of Congress appropriating Federal funds for vocational education purposes, or the distribution of State funds appropriated or allotted for such purposes. "It might be argued that Section 14 operates only to prevent "the distribution", as distinguished from the expenditure, budgeting, etc., of the funds referred to from being affected by the Act of 1937. But even adopting this view, I do n,ot think that such vocational funds are subject to the proviso of Section 12 and do not think that such funds must be considered in determining whether a budget submitted by a local unit of administration provides for the expenditure of at least three-fourths of the total amount available for teachers' salaries (exclusive of the principal and interest of any bonded indebtedness of such local unit). I am forced to this conclusion because, even if the view is adopted that the Act of 1937 does apply to vocational education funds in all respects except as to "distribution"the later part of Section 14 itself prescribes how such funds shall be dealt with by the State Board of Education, as follows: "But all such funds shall be apportioned by the State Board of Education to the various local units as additional aid for use in maintaining vocational classes or departments, subject to such reasonable rules and regulations as may be prescribed by the State Board of Education and in accordance with the State plan of vocational education. " (Emphasis supplied. ) In other words as to vocational education funds the State Board of Education shall apportion them, not according to any budget which may have been submitted to it by the local units of administration and approved or disapproved by the State Board, but (1) Subject to such rules and regulations as may have been prescribed by the Board itself; and (2) In accordance with the State plan of vocational education. What the rules and regulations of the State Board of Education are with reference to the apportionment of vocational education funds I do not know, but there is nothing in the statute requiring the board in its rules and regulations to prescribe that any certain amount or proportion of the vocational funds be applied by the units receiving them to the payment of teachers' salaries. Nor are we familiar with the "State plan of vocational education". However, there is nothing in the statute of 1937 which reqUires that the plan adopted or promulgated by the State Board of Education shall require the expenditure of vocational funds in any amount or proportion for the payment of teachers' salaries. I am therefore of the opinion that vocational education funds received or anticipated by local units of administration are not required to be included in the budget submitted to the State Board of Education for approval. The expenditures, excepted from the proviso of Section 12, are "principal and interest of any bonded indebtedness" of the local unit submitting the budget. But, as pointed out above, vocational funds and equalization funds do not have to be included in the budget for the purpose of determining whether threefourths of the amount available to the local unit is to be spent for teachers' salaries. Question 3. Under the school law, and all other laws on the question, does the State Board of Education now have the authority to make allotments of 92 teachers based on average daily attendance for both the white races and the colored races separately? Answer. Article 8, Section 1, Paragraph 1 of the Constitution (Code Section 2-6601) 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, but separate schools shall be provided for the white and colored races. (Emphasis supplied. ) In order to maintain the status of separation as reqUired by the Constitution, and at the same time provide each local unit with all the teachers to which the 1937 Act entitles it, both for the white and colored schools, I think that the State Board of Education has the authority to make allotments of teachers based on average daily attendance for both white and colored races separately although it is not mandatory on the Board to do so. EDUCATION, STATE BOARD OF-Authority to take text books off the approved list. November 16, 1940 Ron. M. D. Collins State Superintendent of Schools This will acknowledge receipt of your letter of November 14th with reference to the books written by Rugg and Rugg-Kruger and published by Ginn and Company. You point out that in March 1940 the State Board of Education entered into a contract with Ginn and Company for the listing of these textboolrs to be supplied by the State Board of Education under the free textbook law upon requisition from superintendents of local school systems. A copy of that contract is attached to your letter. You further point out that since entering into the contract with Ginn and Company, charges were made by certain individuals and groups that these particular books were subversive and un-American in their content. Action was taken to prevent any further shipment of the books until the State Board of Education had ample opportunity to go into the whole matter, and on September 18th the State Board of Education held a public hearing relative to the matter, and following the hearing referred the books back to the professional committee with a request for more intensive study, and a recommendation to the State Board of Education. On October 22nd, the State Board of Education received a report from the professional committee, a copy of which is attached to your letter. The professional committee reported that it found nothing in the books which tended to undermine our form of government or our way of life, and in the absence of any specific charges against the books made in writing by any individual or organization, the committee reached the conclusion that the books should not be prohibited on this basis for use in the public schools. You state that since the report of the professional committee there have been additional objections to the use of the books in the public schools coming from individuals and groups including the American Legion and Daughters of the American Revolution. You further state: "However, it is clearly evident that many of the citizens of Georgia are definitely opposed to the use of these books in the public schools. Further, 93 these books are not absolutely essential in the curriculum of the pUblic schools. Therefore, the State Board of Education in the interest of public policy and harmonious operation of the schools may desire to take these books off the list of free textbooks available as free textbooks upon requisition by superintendents of the local school systems. "The question which I would like for you, as Attorney General, to answer is whether or not the State Board of Education can legally take such action." The answer to your question involves both a consideration of the contract entered into between Ginn and Company and the Georgia State Board of Education, and also the Acts of the General Assembly of this State defining the powers and duties of the State Board of Education. It will be noted that the contract of date March 19, 1940, entered into between Ginn and Company and the Georgia State Board of Education, does not obligate the State of Georgia or any of its officers or agencies to purchase any specific quantity of the books set out in Exhibit "A" attached to that contract. The second paragraph on page 1 of the contract provides as follows: "NOW, THEREFORE, in consideration of the premises and of the covenants and agreements of the parties hereto to be kept and performed, as are herein undertaken; it is agreed that: "The publisher will for a period of Five Years beginning March 19, 1940, and ending March 19, 1945, sell, supply and furnish to the State of Georgia for use in the public schools of said State at and for the prices stipulated in Exhibit "A" the books described in said Exhibit "A" which is made a part of this contract. " The first paragraph on page 2 of the contract provides in part: "The said books will be delivered to the State of Georgia upon written order from the State School Superintendent in such quantities and at such times as he may order, and such books will be shipped promptly by freight, parcel post, express, or United States mail and so routed as the State School Superintendent may direct in his requisition, and such shipments of books shall be, by the publisher, delivered f. o. b. Atlanta, Georgia, wrapped and addressed to such school authorities as the State School Superintendent may direct and delivered to the freight, express, parcel post or other transportation company as the Board of Education may direct. " Paragraph 2 on page 2 provides in part that after the purchases for 1940 the Board of Education will in each year during the life of the contract give the publisher ninety days notice of the estimated requirements for that year. Paragraph 2 of page 3 provides in part: "This contract is made and executed pursuant to the laws of Georgia and particularly the free textboo]; law of Georgia approved March 4, 1937, and is to be construed with reference thereto and is performable in Georgia. The publisher expressly agrees, covenants, and binds itself to perform all of the obligations and to submit to all of the conditions imposed upon it by the laws of Georgia, and the enumerations herein of such obligations and conditions of this contract are not to be taken as exclusive, but all other requirements, obligations and stipulations as imposed upon it by the said laws are made a part of this agreement and are accepted by the publisher as binding upon it. " Since the contract entered into is executed pursuant to the laws of Georgia and particularly to the free textbook law of Georgia, it becomes necessary to examine the laws of this State with reference to the powers and duties of the 94 State Board of Education. Section 3 of the Act approved February 10, 1937, (Acts of 1937, pp. 864 to 869), creating the State Board of Education, provides in part as follows: "The State Board of Education shall provide rules and regulations for the supervision of all public schools of this State; they shall provide a course of study for all common and high schools receiving State aid and may, in their discretion, approve additional courses of study set up by the local units of administration; provide for curriculum revisions and for the classification and certification of teachers. They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration of the common school fund." Section 1 of the Act approved March 4, 1937, (Acts of 1937, pp. 896 to 901) -provides: "The State Board of Education is authorized and empowered to prescribe by regulation the textbooks to be used in the various grades in the public schools of this State, including the elementary grades and high school grades. The Board may provide, by regulation, for multiple listings of books for use in the various grades, and may, in its discretion, authorize the county school superintendent or the superintendent of independent school systems, to exercise a choice as between books so listed or adopted for any particular grade. The State Board of Education may provide for the selection and purchase of free textbooks either by multiple listings or uniform adoption or by any other method that will enable the acquiring of acceptable boos at tbe lowest possible cost; Provided, such adoption or multiple listings shall in no event constitute a binding contract until ratified in writing by the Board of Education. None of said books so purchased shall contain anything of a partisan or sectarian nature." Section 2 of the Act authori:z;es the Board to select committees to examine textbooks and make recommendations thereon to the Board. Section 7 provides: "In addition to the powers hereinbefore granted to the State Board of Education to provide free school books to the pupils of the public schools of the State, the State Board of Education is authorized and empowered to do whatever may be necessary for the general welfare of the free school book system, and in order to acquire school books at the lowest possible cost: Such powers hereinbefore set out being cumulative and not restrictive." Thus, it appears from Section 7 of the Act of 1937 that the State Board of Education is authorized and empowered to do whatever may be necessary for the general welfare of the free school book system. The phrase "general welfare" is a very broad one. Standard Oil Company vs. City of Bowling Green, 50S. W. 2nd. 960. 244 Ky. 362; the phrase "general welfare" is ;ncapable of exact definition but takes on new definitions when new conditions arise. West Bros. Brick Company vs. City of Alexandria, 192 S. E. 881; 169 Va. 271. It appears therefore that the power given the State Board of Education under the provisions of Section 7 of the free textbook Act is a very broad one. While Section 1 by implication asserts that an adoption or multiple listing ratified in writing by the Board of Education would constitute a binding contract, it could not have been the intention of the General Assembly to validate the contract if it violated the laws of this State. The last sentence of Section 1 provides: "None of said books so purchased shall contain anything of a partisan or sectarian nature. " 95 It is my opinion therefore, that even after the contract was entered into between the Georgia State Board of Education and Ginn and Company, if it appears to the Georgia State Board of Education upon satisfactory proof that the books listed in the contract contain anything of a partisan or sectarian nature or the purchase of such books would not be consistent with the general welfare of the free school book system, the State Board of Education would be authorized to take these books off the list of free textbool's available, as free textbooks upon requisition by superintendents of local school systems; and this is especially true since, under the contract, the books are to be furnished only upon written order from the State School Superintendent and in such quantities and at such times as he may order, and it does not obligate the State Board of Education or the State School Superintendent to purchase any specific quantity of the books listed. EDUCATION, STATE BOARD OF-Not obligated for unremitted collections by County School Superintendents on text book sales. June 23, 1939 Ron. M. D. Collins State Superintendent of Schools I have your letter of June 19th to which you attach a letter addressed to you under date of May 24th, from Haas, Gambrell and Gardner, Attorneys at Law, Atlanta, Georgia, concerning an alleged claim of the Georgia School Book Depository, Inc., against the State Board of Education for certain unremitted items from various county school superintendents for sales of textbooks made under the Textbook Law of 1931 (Ga. Laws 1931, page 136 et seq.) . You ask an opinion as to whether or not the State Board of Education is legally obligated to pay the alleged claims. Contracts between the Georgia Textbook Commission and the Textbook Publishing houses contain the following provision to-wit: "Said second party (the textbook publishing house) further convenants and agrees that they will make, guarantee and assume responsibility for all collections necessary to be made from county school superintendents as a result of the sale and distribution of said books. " In practice it seems that certain textbook publishing houses which did not have a local warehouse or distributing office in this State chose to engage the services of the Georgia School Book Depository, Inc., for the distribution of its books and pay the said depository a commission for such services. It appears that the textbook companies pursued the further practice of having remittances from county school/superintendents made to the Geor,gia School Book Depository, Inc., which said depository in turn remitted to the textbook company. It seems that the State Board of Education did not in any case receive remittances from county school superintendents or make remittances to the textbook companies. In view of the above quoted provision of the contract between the Georgia Textbook Commission and the textbook companies it is my opinion that the Georgia Textbook Commission, or the State Board of Education is not legally liable for any remittances which county school superintendents may have failed to make to the Georgia School Book Depository. Therefore, I am of the opinion that the State Board of Education is not legallyliable for the alleged claims made by the Georgia School Book Depository, Inc. 96 EDUCATION, STATE BOARD OF-Has no authority to furnish text books to inmates of State prison. November 21, 1939 Honorable M. D. Collins State Superintendent of Schools In your letter of November 15 you asked an opinion as to whether or not the State Board of Education has authority to furnish books provided for under the Georgia Text Book Act of 1937 to inmates of the Georgia State Prison. The Georgia Text Book Act (Acts of 1937, pages 896-901) authorizes the State Board of Education to prescribe by regulations the text books to be used in the various grades in the public schools of this State, including elementary grades and high school grades. The act defines the elementary grades as those grades embracing one to seven inclusive and no others; and the high school grades as embracing grades eight to eleven inclusive and no others. It is further proVided in Section 4 of the said act: "The State Board of Education may, in its discretion, extend the proVisions of this section, under such rUles and regulations as it may adopt, to the Georgia Training School for Boys, the Georgia Training School for Girls, the Academy for the Blind, the Training School for the Deaf and the other public eleemosynary institutions operated by this State, where text books prescribed by the State Board of Education in conformity with this Act are used. " The School Book Act is specific in naming the public schools of this State, the certain listed eleemosynary institutions, "and other public eleemosynary institutions operated by this State, where text books prescribed by the State Board of Education in conformity with this Act are used" as being the schools or institutions for whom the State Board of Education may furnish books. A state prison does not come within the definition of an eleemosynary institution. According to Webster's Unabridged Dictionary the word eleemosynary is defined as "Devoted to charity, alms, charity". State prisons do not come within such a definition. It is known that the inmates of state prisons are usually adUlts beyond the school age and it cannot be reasonably deduced that the Legislature had such an institution in mind when it vested discretion in the State Board of Education to provide books for other eleemosynary institutions. Therefore, it is my opinion that the State Board of Education has no power or authority to furnish text books proVided for in the Georgia Text Book Act to inmates of State prisons.. EDUCATION, STATE BOARD OF-Per diem and transportation allowance. May 18, 1940 Dr. M. D. Collins State Superintendent of Schools I have your letter of May 15 in which you state that the three lady members of the State Board of Education are members of the Library Committee. You further state that the American Library Association is to meet in Cincinnati within the next few days and that, if the State Board of Education could legally do so, it desires to pay the railroad fare and per diem of these three members to the said meeting in Cincinnati. You ask whether or not the State Board of Education would be authorized to pay transportation and per diem under the above circumstances. 97 An act of the General Assembly of 1937 (Ga. Laws 1937, pp. 864 et seq.) created the State Board of Education and fixed their powers and duties. Under said act it is provided: "They (the members of the State Board of Education) shall meet at the State Capitol in the Department of Education, or at such place in the Capitol as may be designated by the Governor for that purpose". (Parenthesis supplied.) Another section of the aforesaid act provides: "The members of the board shall receive the sum of seven dollars for each day of actual attendance at the meetings of the board, and as actual transportation to and from the place of meeting and their respective homes by the nearest practicable route, the mileage allowed by law to State officers and employees. Such per diem and mileage shall be paid by the State Department of Education. " The above quoted provisions of said act seem to be exhaustive of the provisions for payment of per diem and mileage. There is no provision for payment of transportation or per diem except "for each day of actual attendance at the meetings of the board, and as actual cost of transportation to and from the place of meeting and their respective homes by the nearest practicable route, the mileage allowed by law to State officers and employees". The proposed trip of the three members to Cincinnati would not be a meeting of the Board of Education and it would not be at the State Capitol of the State of Georgia, which is fixed as the place of said meetings. For the abo:ve reasons it is my opinion that the State Board of Education has no authority to pay the transportation of and per diem to three members of said Board who may attend the meeting of the American Library Association in Cincinnati, Ohio. I regret that I can find no law which would authorize transportation and per diem for attendance upon this worthy meeting. EDUCATION, STATE BOARD OF-Has no authority to use State school funds to assist in building school house. .July 25, 1939 Honorable M. D. Collins State Superintendent of Schools This will acknowledge yours of the 15th instant requesting my opinion as to the authority of the State Board of Education to use school funds for the a purpose of helping school districts erect school buildings in local school dis- tricts, and especially whether or not the Board could make grant to Abbeville and Wilcox County for this purpose, where it appears that the school building there recently burned; that the insurance carried is inadequate to rebuild necessary buildings; and that the bond limit of seven percent in the district has practically been reached already. Section 9 of the Act approved February 10, 1937 (Ga. L. 1937, p. 882) , known as the Seven Months Minimum School Act, prescribes the purposes for which the common school fund and such appropriations as may have been, or may hereafter be made by the General Assembly for common school purposes shall be used by the State Board of Education, as follows: "(I) To pay all teachers in the public schools of the State except county superintendents, salaries for not less than seven months in each school Year, in accordance with the salary schedules prescribed by the State Board 98 of Education; Provided, that no teacher shall receive less than the minimum salary prescribed by the State Board of Education for the class to which such teacher belongs, unless the State Board of Education, in the exercise of its discretion, shall otherwise direct. " (2) To pay the salaries of county school superintendents as now provided by law. "(3) To pay to each local unit of administration, as hereinbefore defined, for the purpose of meeting local administrative expenses, the cost of operating and maintaining school plants, meeting fixed charges, the expense of auxiliary agencies, the expenses of transportation, and other administrative expenses, a sum sufficient, when added to the total amount which may be raised by such local unit of administration, by a local tax levy of five mills, to equal one-third of the amount allotted to such local unit of administration for salaries. " (4) To pay the administrative expenses of the State Department of Education, the compensation and expenses of the State Board of Education, and the State Superintendent of Schools, and such other salaries and administrative expense of the Department of Education as may be authorized by the State Board of Education and approved by the State Superintendent of Schools; ... and for the purpose of carrying out the provisions of said act. " It will be noted that this statute confers no authority or power upon the State Board of Education to use any of said funds for the purpose of building school houses in local school districts, and I am aware of no other statute which confers power and authority upon the State Board of Education to use any of its funds for the purpose of making a grant to any local district with which to build a school house. Provision has already been made by statute for the building of school houses, and the power and authority with respect to such matters is vested in the various county boards of education. Section 32-909 of the Code provides in part: "In respect to the building of schoolhouses, the said board of education may provide for the same, either by labor on the part of the citizens of the subdistricts, or by a tax on their property. " If the county board decides that school houses shall be built by tax upon the property of the school district, the provisions of Chapter 32-14 are controlling in the matter where bonds are to be issued. EDUCATION-Bible reading in State public schools. October 14, 1940 Mrs. A. B. Hardy 138 Daugherty Street Athens, Georgia I appreciate your letter of October 13th in which you inquire as to the reading of the Bible in State Schools. Section 32-705 of the Georgia Code of 1933 provides as follows: "Addition to the State course of study. Bible reading. -Health and hy- giene, the nature of alcoholic drinks and narcotics, the elements and principles of agriculture, and the elements of civil government shall be taught in the common or public schools as thoroughly and in the same manner as other like required branches, and the board of education of each county 99 and local system shall adopt proper rules to carry the provisions of law into effect: Provided, however, that the Bible, including the Old and the New Testaments, shall be read in all the schools receiving State funds, and that not less than one chapter shall be read at some appropriate time during each school day. Upon the parent or guardian of any pupil filing with the teacher in charge of said pupil in the public schools, a written statement requesting that said pupil be excused from hearing the said Bible read as required by this section, such teacher shall permit such pupil to withdraw while the reading of the Bible is in progress. Such request in writing shall be sufficient to cover the entire school year in which said request is filed. " EDUCATION-Teaching denominationalism. June 18, 1940 Honorable J. 0. Allen, Superintendent Albany Public Schools Albany, Georgia I am pleased to acknowledge yours of the 6th instant requesting my opinion as to whether it is permissible under the law to teach denominationalism in the public schools of this State. I understand that the Albany Public Schools are operated as an independent school system. The question of what subjects shall or shall not be taught in the public schools is an administrative matter about which I cannot advise you. While your letter doesn't set out the proposed plan of operation or give any details as to how denominationalism would be taught in the public schools I would like to call your attention to Article I, Section I, Paragraph XIV of our State constitution which provides: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religionist, or of any sectarian institution." It would seem, therefore, that if the plan or program teaching denominationalism contemplates the expenditure of State school funds it would be antagonistic to the letter and spirit of this constitutional provision. Section 32-408 of the Georgia Code Annotated vests the State Board of Education with the power to provide "a course of study for all common and high schools receiving State aid and may, in their discretion, approve additional courses of study set up by the local units of administration. "Under this section I do not see how any question could arise as to a matter of this kind about which I could render an official opinion until the State Board of Education had approved some denominational course as a subject to be taught in the public schools, and the authority of the Board to grant such approval was questioned. Since the matter about which you write is one of a local nature, my only suggestion is that you refer this inquiry to your splendid City Attorney for his opinion. Any opinion which I might give you, being unofficial, would not be binding either upon the Board of Education, or upon you, or any citizen of the community. EDUCATION, COUNTY BOARDS OF-Term of members. April 10, 1939 Hon. M. D. Collins State Superintendent of Schools . This will acknowledge receipt of your letter of March 31st in which you mquire as to whether or not you should initiate the commission for Mr. Z. T. 100 Houser as a member of the Johnson County Board of Education under the following facts: 1. H. C. Williams was commissioned for the four year term ending September 30, 1938. Mr. Williams resigned JUly 20, 1937. 2. The Clerk of the Superior Court certifies the following as an excerpt from the minutes of the grand jury, March Term, 1939: "Mr. Z. T. Houser was recommended for member of board of education to be commissioned as the successor of Dr. J. R. Rogers whose term has expired and who was filling the unexpired term of H. C. Williams. " 3. This is the first notice you have received of the successor to Mr. Williams. It is my opinion that you shoUld initiate the commission for Mr. Z. T. Houser as a member of the Johnson County Board of Education for the term expiring September 30, 1942. It will be noticed that Section 32-902 of the Code of 1933, which provides for the election of members of the County Board of Education by the grand jury, provides in part as follows: "Said members shall be elected for the term of four years and shall hold their offices until their successors are elected and qualified . . . " The case of Talmadge v. Cordell, 167 Ga. 594, held that even in the absence of legislation fixing the beginning of the term, the appointing power is clothed with the power to fix the beginning of the term of the first appointee; and thereafter all subsequent terms are to conform to the beginning of the term of the first appointee. See also Throop on Public Officers, Paragraph 318. Your letter states that Mr. H. C. Williams was commissioned for the four year term ending September 30, 1938. The subsequent term woUld begin with the expiration of Mr. William's term and continue for a period of four years. It will be noted further that the minutes of the grand jury, which were certified by the Clerk of the Superior Court, state that Dr. J. R. Rogers was filling the unexpired term of H. C. Williams. It does not state whether he was elected by the grand jury or appointed by the Judge of the Superior Court but it is my opinion that the term of any person appointed to fill any vacancy of a member of said Board would end at the expiration of the legal term of the member whom such person succeeded. This woUld also be true as to the election of members of the Board to fill the unexpired term of a former member. Since you state that you had had no previous notice of the successor to Mr. Williams, I presume that he was never commissioned. However, whether he was serving without color of title or as de facto or de jure officer, in my opinion, woUld make no difference since he was only filling the unexpired term of Mr. Williams which terminated on September 30, 1938, or when his successor was elected and quali- fied. EDUCATION, COUNTY BOARDS OF-Election of members by the people au- thorized by special law contrary to general law of selection by grand jury is unconstitutional. May 5, 1939 Hon. W. L. Bowen County Superintendent of Schools Dodge County Eastman, Georgia This will acknowledge receipt of your letter of May 2nd in which you inquire as to the constitutionality of the Act passed at the last Legislature requiring that members of the Dodge County Board of Education must be elected by popUlar vote at the June general election. 101 The Attorney General is authorized to render an official opinion only when so requested by the Governor or by one of the officials of the Executive Depart- ment of this State. Therefore, anything which I might say with reference to your inquiry must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. The Act to which you have reference was the Act approved March 3, 1939, amending Section 32-902 of the Code of 1933 by adding the following: "Provided, however, that in counties having a population of 21, 599 and less than 21, 609, according to the United States census of the year 1930, members of the County Board of Education shall be elected by the qualified voters of the county every two years at the general election, being held in June as now provided by law, and in the same manner and under the same laws, rules and regulations governing said election. " There are other provisions of the Act providing for the term of office of said members, and the election of their successors, defining their duties and powers, and the persons eligible to vote for said members. In my opinion, the Act is clearly unconstitutional. Article I, Section 4, Para- graph 1, of the Constitution of this State (Code Section 2-401) provides in part as follows: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provi- sion has been made by an existing general law . . . " Section 32-902 of the Code of 1933, which the Act in question purported to amend, is clearly a general law and provides that the grand jury of each county shall select from the citizens of their respective counties five freeholders who shall constitute the County Board of Education. In the case of Medders vs. Stewart, 172 Ga. 507, the question was raised as to the constitutionality of an Act of the General Assembly which empowered tax collectors to act as deputy sheriffs in stated instances for the collection of county taxes. It was alleged that the Act violated the foregoing provision of the Constitution since there was already a general law upon the subject, and the Act in question was a special law in that its operation was limited to counties haVing a population of not more than 6, 462 and not less than 6, 458 under the United States census of 1920. The court held that the Act was a local or special Act and not a general Act and therefore violated the constitutional provision hereinabove quoted. The court said: "The classification by population is limited to the United Statescensus of 1920 and cannot be affected by future census enumerations, and only a county having not less than 6, 458 and not more than 6, 462, under the census of 1920, falls within the classification. " It will be noticed that in the Act to which you refer, the classification is not only limited according to the United States census of the year 1930 and does not include any future census, but it is further limited to counties havinga POPUlation of 21, 599 according to that census. In the case of Gibson v. Hood, 185 Ga. 426, the court had before it for con- sideration an Act providing that in "all counties of this State having a popUla- tion of not more than 4, 350 nor less than 4, 340 according to the official census 0.f the United States of 1930 or any future census, the County Board of Educa- tion shall be appointed by the Superior Court Judge of the county". The court held that this was a special Act conflicting with a general law since, according to the United States census at the time of the adoption of the Act, only the county of Towns had such population as would render the Act applicable to it. 102 and the possibility of other counties having such population by any subsequent census was too remote to form a basis for a reasonable classification on the subject of territorial generality of the Act. It will be noted that the Act under consideration in that case was more general than the Act to which you refer, since that Act classified the counties to which the Act should be applicable not only by the census of 1930 or any future census but it was provided that it should apply to all counties having a population "of not more than 4, 350 nor less than 4, 340. " (Emphasis supplied. ) EDUCATION, COUNTY BOARDS OF-Grand jury cannot select one of their own number in session. A local school district trustee may be a member. Maximum levy for maintenance in local school district is five mills. January 9, 1940 Hon. A. A. Jameson Wiley, Georgia I am pleased to acknowledge yours of the 4th instant requesting information on the following questions: 1. Is it legal for a man serving on a County Grand Jury to be elected by the said Grand Jury to become a member of the County Board of Education? ANSWER: The grand jury in selecting the members of the county board of education shall not select one of their own number then in session." (Code Section 32-903) 2. Is it legal for a man who is a member of a Board of Trustees of a local school district to be elected as a member of the County Board of Education? ANSWER: In an opinion dated October 21, 1935, to Hon. M. D. Collins, State School Superintendent, my distinguished predecessor, Hon. M. J. Yeomans, held: "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. " I find myself in perfect agreement with the views expressed in this opinion which is printed in "OPINIONS OF THE ATTORNEY GENERAL OF GEORGIA-JAN. 1, 1935 to DECEMBER 31, 1936, page 80. 3. What is the maximum number of mills a local Board of Trustees may levy for school maintenance? ANSWER: Under Section 32-1113 of the Code, the maximum amount which may be levied by a local school district for maintenance purposes is fixed at "one-half of one percent, " or five mills. Of course it requires an election as provided tn Code Section 32-1108 in order to authorize this additional levy, and it is reqUired by Section 32-1129 that in the call for said election the exact amount of the additional tax proposed to be levied shall be specified. Under Article 8, Section 4, Paragraph 1 of the Constitution, the county board of education is authorized to levy a county-wide school tax not exceeding five mills on the dollar of all taxable property of the county outside of independent local systems. 4. Can the County Board of Education levy another tax in addition to the tax levied by the School District Board of Trustees? ANSWER: This question was answered under Question 3. I might enlarge upon what is said above by saying that the county-wide school tax levied by the county board of education may be levied "on the recommendation of the board of education" and no election is required. Funds collected under this 103 county-wide tax are required to "be distributed eqUitably according to the school population, tax values, the number of teachers" of the county, other than the school located in independent districts. On the other hand, the tax of not exceeding five mills levied by a local board of trustees can only be levied after an election has been held in the manner provided by Code Section 32-1108 and two-thirds of those voting in said election shall have voted "for local taxation for public schools. " Of course you realize that what is said herein is purely unofficial, as the Attorney General is not authorized to render an official opinion upon the questions asked to any person other than the Governor. Being unofficial, it is binding upon no one. I am glad to furnish you this information as a friend, and in a desire to be helpful and cooperative. EDUCATION, COUNTY BOARDS OF-County tax assessor is ineligible. August 23, 1940 Honorable 0. C. Dellinger Superintendent, Arnoldsville High School Arnoldsville, Georgia I am pleased to acknowledge yours of the 20th instant in which you state that a vacancy has recently occurred in your County Board of Ed1,1.cation and that you have a man you would like to be appointed to fill this vacancy but that there is some question as to his eligibility, since he is a member of the County Board of Tax Equalizers and is also on the County Committee in charge of the AAA program. While I am not authorized to render you any official opinion as to the eligibility of this person for appointment as a member of your County Board of Education, I am glad to refer you to the Code Sections relating to such matters. What is said herein being unofficial, is binding upon no one and expresses only my personal views as based upon the statutes cited. Code Section 92-6907 relating to the eligibility of members of the County Board of Tax Assessors to hold other offices provides: "The members of the board, during the time they hold their offices and for one year thereafter, shall be ineligible to hold any State, county or municipal office, but they may be reappointed to succeed themselves as members of said board. " (Emphasis supplied. ) Since a member of a County Board of Education is a county officer, this statute Would render the person referred to in your letter ineligible for appointment to fill the vacancy on the County Board of Education. Moreover, there is another statute which would serve to disqualify this person from hoi ding another county office. Code Section 89-103 provides: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, etc. " Since a member of the County Board of Tax Assessors is a county officer and a member of the County Board of Education is a county officer, one person could not hold both of said offices at the same time under this code section. I do not think that the fact that the gentleman referred to in your letter ls on the County Committee ln charge of the AAA program would effect his eligibility to be appointed as a member of the County Board of Education, provided he was not ineligible under the above stated code sections. 104 EDUCATION, COUNTY BOARDS OF-Traveling expenses of members. Hon. H. A. Bacon February 14, 1940 Superintendent of Schools Liberty County Hinesville, Georgia This will acknowledge receipt of your letter of recent date in which you state: "The surety company that writes my surety bond is critical about the matter of our paying our County Board members a traveling expense. "We have done this for a member of years and this is the first time it has ever been criticized. "I will appreciate it if you will give me your interpretation or decision with reference to this matter." The Attorney General is authorized by law to render official opinions only when so requested by the Governor or by one of the officials of the Executive Department of this State, upon matters directly affecting the State's interest. Anything which might be said in response to your inquiry, therefore, must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. The Code section dealing with the compensation of members of the County Boards of Education is Section 32-904 of the Georgia Code of 1933, which pro- vides as follows: "The members of the Board of Education in each county shall be paid a per diem not to exceed $2. 00 for each day's actual service out of the school fund appropriated to the county; and their accounts for service shall be submitted for approval to the Ordinary or County Superintendent of Schools; and they shall not receive any other compensation, such as exemp- tion from road duty and jury duty." I find no provision of law specifically authorizing the payment of traveling expenses to members of the County Boards of Education. In the case of Twiggs v. Wingfield, 147 Ga. 790, the Supreme Court of this State said: "It is a well settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordi- nances his duties within the scope of the charter powers pertaining to the office are increased, and not his salary. " In the same connection, see Mitchell v. City of Thomasville, 50 Ga. App. 304; Price v. Cutts, 29 Ga. 142; 46 C. J. 1014, Section 233. While there may be many cases in which the $2. 00 per diem fixed by the Gen- eral Assembly is not sufficient to adequately compensate the members of the County Boards of Education for both their time and traveling expenses, yet, under the law, the $2. 00 per diem is all such members are entitled to receive for their services. 105 EDUCATION, COUNTY BOARDS OF-Compensation of members. December 10, 1940 Hon. H. J. Brewton, Chairman Board of Education Tattnall County Reidsville, Georgia I am glad to acknowledge receipt of your letter of December 7th, inquiring as to the compensation allowed by law to members of county boards of education. I wish that it were possible for me to tell you that the law authorized anallowance in excess of $2. 00 per diem for each day's actual service, but the General Assembly having established the per diem at $2. 00 per day, I am powerless to change this legal provision. Section 32-904 of the Georgia Code provides as follows: "Compensation of members. -The members of the board of education in each county shall be paid a per diem not to exceed $2 for each day's actual service out of the school fund appropriated to the county; and their accounts for service shall be submitted for approval to the ordinary or county superintendent of schools; and they shall not receive any other compensation, such as exemption from road duty and jury duty." This Section of the Code was enacted by the General Assembly in 1919. EDUCATION, COUNTY BOARDS OF-Authority to sell school bUildings. August 4, 1939 Honorable J. H. McGiboney, Superintendent Carroll County Public Schools Carrollton, Georgia This will acknowledge yours of the 31st ult. stating that there are several school buildings in bonded school districts in your county which are no longer being used for school purposes, and requesting my opinion as to whether the County Board of Education may sell such bUildings before the bonded indebtedness of the school districts involved is paid. Section 32-909 of the Code defining the powers of the County Boards of Education provides in part: "The said boards 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; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. " Based upon this Code Section my unofficial opinion is that the County Board of Education has power to sell these buildings if, in their opinion, the same have become unnecessary or inconvenient and provided there were no reversionary clauses in the deeds of conveyance of said property to the County Board or the local districts. The fact that the bond issue has not been paid off WOUld not alter the power of the County Board with respect to the sale of these bUildings. Of course, after the bUildings are sold the property of the tax payers 106 of the districts would still be subject to taxation for the purpose of retiring the outstanding bond issue. You realize, of course, that this opinion is purely unofficial and is binding upon no one. The matter about which you write is one which addresses itself to the discretion of the County Board of Education, and about which I have no authority to advise them. I suggest that you refer your question to Boykin & Boykin your county attorneys, for their official advice. This letter is written in an effort to be helpful, but cannot be construed as an official opinion. EDUCATION, COUNTY BOARDS OF-Teacher's home. April 16, 1940 Hon. Robert D. Tisinger Attorney at Law Carrollton, Georgia I am pleased to acknowledge yours of the 13th inst., in which you state that the County Board of Education, in cooperation with the Rosenwald Fund, desires to improve certain school property of the Tallapoosa School District by building thereon a teachers' home, and that it will be necessary to borrow money and give as collateral a security deed on a part of the property in order to build said home, and that title to the property is vested in the Carroll County Board of Education. You request my opinion as to whether the County Board of Education would have authority to borrow money for the purpose of building this home and give as collateral a security deed on a part of the school property. While under the law prescribing my duties I am not authorized to render an official opinion upon the question asked, I am glad to give you my own personal views, which, being unofficial, are binding upon no one. Section 32-909 of the Code, which prescribes the powers and duties of the County Board of Education, vests "the title, care and custody of all schoolhouses or other property belonging to the subdistricts now or hereafter defined", in said Board, and they are authorized "to control the same in such manner as they think will best serve the interests of the common schools". No express powers are conferred upon the Board in this Act, however, with reference to the borrowing of any money. The General Assembly did, in another section of the school law, authorize the County Boards of Education to borrow money, but only for the purpose of operating the public schools of their County. (See Sections 32-921 through 32-927.) In this connection, also, the provisions of Section 32-928 are very significant. This section reads: "It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year. Any indebtedness created, contract made, or order or draft issued in violation thereof shall be void. " It occurs to me that any borrowing of funds for the purpose set out in your letter would be violative of this section of the law. In addition to what is said above, I am of the opinion that Sections 32-1401 and 32-1402 of the Code clearly manifest the legislative intent that, whenever it becomes necessary that school buildings of any nature shall be constructed in a school district, funds for such purpose must be raised by a bond issue authorized in the manner therein prescribed. This being true, I do not think that the County Board of Education could borrow money by pledging or conveying the title to school property vested in them. 107 Aside from what is said above, there is another practical difficulty which would perhaps stand in your way if an effort were made to obtain a loan from a bank or other responsible lending agency. I refer to Section 32-943 of the Code, which provides, in part: "Each and every lot or parcel of land which has been or may hereafter be obtained by any county board of education, etc., . . . for the use of the common schools, or common high schools, together with any buildings erected thereon for school purposes, and all school furniture, shall be exempt from levy and sale under any execution or other writ or order in the nature of an execution;" In view of this section of the Code, I doubt that anyone familiar with its terms would be willing to make a loan secured by school property, for, in the event that the loan became in default, the lender would have no recourse. There may be other legal obstacles to the plan outlined in your letter. Those pointed out above occur to me upon a cursory study of your problem, and, while I have endeavored to find some authority whereby your County Board would be authorized to carry through this project as outlined in your letter, my efforts in this regard have been wholly unavailing, and my own mind is free of all doubt that the building of the proposed teachers' home cannot be accomplished in this manner. EDUCATION, COUNTY BOARDS OF-Who entitled to insurance proceeds on school buildings. September 21, 1939 Honorable M. D. Collins State Superintendent of Schools This will acknowledge your letter of September 14 to which you attach a letter from Honorable Foster T. Brown, Superintendent of Schools of Madison County addressed to you under date of September 12. Mr. Brown states that Wesley Chapel School District of Madison County was established by the County Board of Education in the year 1928. He says that about 1929 certain property was conveyed by Mr. J. W. Hix to certain named individuals designated as trustees of the Wesley Chapel School District and their successors in office. It appears that the trustees of this school have carried insurance on a school bUilding located on the property and that in August of this year the building burned. A request was made of you to procure an opinion of the Attorney G!meral upon the question whether the insurance should be paid to the Madison County Board of Education or to the local trustees of the Wesley Chapel School District. The question presented is not one upon which the Attorney General can render an official opinion for the reason that it involves the powers of a county board of education and the trustees of a local school district. Since I cannot render an official opinion all that I can do in order to be helpful is to give you my personal views of the law as it relates to the facts given in Mr. Brown's letter. !here is no information given as to whether the Wesley Chapel School District 18 a local tax district or one which does not levy a local tax. No information is ~iven as to whether the school building was built with funds derived from bonds lssued by a local tax district as provided by section 32-1401 et seq. of the 1933 Georgia Code. There is not disclosed in the letter whether the land was pur~hased and a deed of bargain and sale executed, or whether the land was a gift lntpressed with a charitable trust for a specific school purpose. 108 Section 32-909 of the 1933 Georgia Code (codified from Georgia Laws 1919, page 323), setting forth the powers of county boards of education over school property, in part reads as follows: "The county boards of education . . . are invested with the title, care and custody of all school houses 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 interest of common schools; and when in the opinion of the board, any school house site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. They shall have the power to receive any gift, grant, donation, or devise made for the use of the common schools within their respective counties, and all conveyance of real estate which may be made to said board shall vest the property in said board of education and their successors in office. " From the above quoted portion of the said code section it is plain that the general law vests title of school houses in subdistricts in the county board of education. Section 32-1105 of the 1933 Georgia Code (Codified from Georgia Laws 1919, page 336, and Georgia Laws 1931, pages 7, 40) defining the duties of trustees of local school districts does not contain any provision for local school district trustees to take and hold title to school property or school houses. In view of the aforesaid two sections of the code I think that in a case where land is bought for the erection of a school house in a local district the title should vest in the county board of education and in a case where the title has not been so taken it should be corrected so as to properly convey the land and school property to the county board of education. An exception to the general rule that title to school property is vested in the county board of education is under a set of facts such as were shown in the case of Dominy et al v. Stanley et al, 162 Ga. 211, 215-216, where a tract of land was given by the grantors in trust to be kept and used for school purposes. In the Dominy case, supra, it was held that the title to land under the circumstances involved in that case did not vest in the county board of education. I do not know whether in the case mentioned by Mr. Brown in his letter there was any gift of the land for a specific school purpose. Of course, if there was no gift for a specific school purpose such as to make it a charitable trust then the Dominy case decision would not apply in the instant matter. Since I am unable to render an official opinion for the reason above stated I suggest that the parties interested submit the matter to the county attorney or some other local attorney who may be employed by the county board of education for him to advise them as he will have available all of the facts involved in the case. He may perhaps find the code sections and case that I have pointed out helpful to him in reaching a conclusion as to the law concerning this matter. EDUCATION, COUNTY BOARDS OF-Teachers are employed by County Boards and not by the State. Hon. T. F. Kelly August 3, 1939 Elberton, Georgia It is a pleasure to acknowledge your letter of July 28th. I am always glad to hear from you. 109 I have read the copy of the opinion which you inclosed in your letter ren- dered by the late distinguished M. :r. Yeomans, Attorney General, to Dr. M. D. Collins, State Superintendent of Schools, on January 27, 1939, dealing with the status of school teachers in this State. As a matter of fact, and under the law, the State does not emploY. common school teachers. Section 32-913 of the 1933 Code of Georgia reads 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. " The right and power of county boards of education to employ teachers is exclusive, and all contracts under which teachers are to be paid from county educational funds must be in writing. Hill v. Conner, 181 Ga. 516. In contracting with teacher for local tax district, the county board is statutory instrumentality through which local school trustees become bound, and duty of payment is on local board of trustees and treasurer of local tax district. Gard v. Board of Education of Hart County, 183 Ga. 82. The Equalizing Educational Opportunities Act of 1937 (Georgia Laws 1937, pages 882-892) did not change or affect Section 32-913 of the Georgia Code of 1933 which provides that the county boards of education are empowered to employ teachers and to contract for their service. The said 1937 Act did not undertake to change the contractual obligation that has existed for many years, and now exists, between the county board of education and the teacher. The State's obligation to pay to the county boards of education and the local units of administration money from such funds as may be available for that purpose to compensate teachers for seven months salary under their contracts with the county boards of education or local units of administration has been circumscribed by the lack of revenue to pay the appropriation or cost to carry out such a program. Whether the teachers are actually "favored" or not depends upon whether or not the General Assembly of this State makes adequate provision for paying them. The House Economy and Efficiency Committee established by resolution of the 1939 House of Representatives went into the school question thoroughly and upon their request it was my pleasure to render them several opinions dealing with the teacher and school situations. I understood that the Committee was to furnish every member of the General Assembly a copy of their report and If you will look into this report to the part labeled "Appendix A" you will find several opinions dealing with the status of the schools and teachers. Personally, I think that there is no greater service that can be rendered by the government to its people than the education of our boys and girls. I also believe that an investment in boys and girls, in flesh and blood, in minds and hearts, Will, in the long run, pay bigger dividends than a parsimonious policy of starvation for our schools. If there is any way that I can assist you in making better provision for the PaYment of our teachers and for the support of our schools, I want you to know that you have my sincere and earnest support in that direction. 110 EDUCATION, COUNTY BOARDS OF-Teachers contracts are contracts of County Boards and not the State. February 5, 1940 Honorable Bill Bennett Jesup, Georgia I am pleased to acknowledge yours of the 30th ultimo and to give you the information requested as best I can. I shall endeavor to answer your questions according to the order in which they occur in your letter, as follows: 1. Do the teachers have a contract with the State for seven months salary? Answer. The teachers do not have a contract with the State for seven months salary. Contracts of teachers are made with the county boards of education, Code Section 32-913 providing: "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." See also Orr v. Riley, 160 Ga. 480. 2. When the State served notice that it was no longer responsible for the operation of schools last spring, did that mean that schools which continued operation must be responsible for their own maintenance? In answer to this question I am inclosing you herewith copy of an official opinion to Dr. M. D. Collins, State Superintendent of Schools, under date of April 3, 1935. This opinion answers not only this particular question, but some of the others in your letter. 3. (a) Are funds sent to the counties for the payment of teachers salaries so designated? Answer. Yes. To illustrate this point, I am inclosing you herewith copy of the letter of Dr. M. D. Collins under date of July 8, 1939, transmitting school funds. (b) Do counties have any discretionary powers with regard to the use of funds sent for teachers salaries? No. These funds are sent to the county school superintendent on the basis of the budget submitted by said superintendent. The budget shows the names of each teacher and the classification and salary schedule in which he or she falls. The funds distributed to the various county school superintendents are, therefore, earmarked, and should be paid to each individual teacher in accordance with the budget submitted by the county superintendent, for the services already performed by each teacher. 4. (a) Was it specified that the money sent out after the close of the last fiscal year should be applied to the remaining 50 per cent of January salaries due, and 30 per cent should go on February salaries? Yes. In my judgment, schools which started in September are on a different basis however and, the salary accounts should be adjusted to meet any peculiar circumstances which arise from the fact that such schools started earlier than other schools in the State. You will note from the copy of the letter of Dr. M. D. Collins of July 8, 1939, inclosed that it was so designated. (b) Was this money sent to all the counties? According to Honorable J. I. Allman, Director of School Administration in the State Department of Education, checks for said funds were mailed to all of the counties in the State. (c) For what could it be used? 111 It could be used only for the purposes specified in the letter referred to above. Of course, you realize that what is said herein is purely unofficial for the reason that I have no authority to render an official opinion upon the subject except upon the written request of the Governor or the State School Superintendent. Most of the information called for in your letter was obtained from Honorable J. I. Allman and if you have any further questions relating to the administrative aspects of school funds I suggest that you communicate directly with Mr. Allman. EDUCATION, COUNTY BOARDS OF-Teachers contracts are prepared by County Boards. February 21, 1940 Dr. M. D. Collins State Superintendent of Schools I have your letter of January 24th in which you ask that the Department of Law prepare for you a form of contract to be used in connection with the employment of teachers by a city or county board of education. In the case of Orr, et al, Trustees v. Riley, 160 Ga. 481, it was held: "The county boards of education have the exclusive power and right to employ teachers to serve in the schools under their jurisdiction . . . and make with them contracts for their services as such. " A section of the Code of Georgia of 1933 contains the same provision. In view of the above quoted law, I do not think that I have the right or power to prepare a form of teachers contract, but that the preparation of the contract should be left to the board of education of the independent system or the county board of education under direction of the attorney employed by such board. I appreciate the motive that prompts you in the desire to see that teachers do have written contracts as required by law. You may properly inquire and ascertain whether contracts do exist between the teachers and the boards, but I do not think that either the State Board of Education or myself have any right to prescribe the actual form of contract to be used. EDUCATION, COUNTY BOARDS OF-State Board has no right to prescribe forms for teachers contracts. October 23rd, 1940. Hon. M. D. Collins, State Superintendent of Schools I am pleased to acknowledge yours of the 19th instant, in which you state that it has been brought to the attention of the State Board of Education and State Department of Education, that teachers, unless they have a written contract, are unable to collect their salaries even when faithful service has been rendered unless school officials voluntarily pay the same. You request the Law Department to prepare a simple teacher contract in order that you may furnish the same to the school superintendents and Boards of Education throughout the State so that teachers may have this protection. As you are aware, Code Section 32-913 vests the exclusive power to employ teachers to serve in the schools under their jurisdiction in the County Boards 112 of Education, and it is provided that "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. " It will be observed from a reading of this Code Section that neither the State nor the State Department of Education is a party to teacher contracts. And while I yield to no man or public official in my real and enthusiastic championship of the cause of the teachers and the schools of this State, certain proprieties and questions of jurisdiction and authority are involved in the request you make of me which preclude my granting your request in the form submitted. The employment of public school teachers to serve in the public schools under the jurisdiction of County Boards of Education being exclusively a county matter, the County Boards of Education in each county should properly call upon their county attorney to prepare all necessary contracts relating to the employment of such teachers. I fear that if either the Law Department or the State Department of Education took the initiative and prepared a form to be used by all County Boards of Education many of the County Boards would consider such action highly presumptions on our part. Notwithstanding what is said above, I wish to assure you that I shall be happy to assist and cooperate with any county attorney or any County Board of Education in drawing up a form of contract to be used by said Board in contracting with the public school teachers in the county, should the County Board or county attorney request the same. I trust that you fully understand and appreciate my attitude in this matter. I fully concur with you in your expression that the school teachers need and should have some protection in matters of this kind and, if practical, all contracts between teachers and County Boards should be on a standard form and all should be in writing. If the contract in question were between the State Board of Education, or State Department of Education and the public school teachers it would be proper for me or the Law Department to draw up or approve the form of contract to be used, but since it is otherwise and none of the County Boards or county attorneys have requested my assistance in the matter of preparing a form it might be resented if a standard form of contract were prepared and thrust upon them. It may be that at the next session of the General Assembly the advisability of having all teacher contracts made between the State Department of Education, or the State Board, will be considered by the Legislature; or said body will add some amendment to the present law which will have the effect of causing County Boards of Education to more strictly comply with the statute which requires teacher contracts to be in writing. EDUCATION, COUNTY BOARDS OF-Not compelled to elect teacher recommended by local district trustees. April 27, 1939 Hon. N. P. Malcom, Superintendent Seminole County Schools Donalsonville, Georgia This will acknowledge receipt of your letter of April 17th in which you make the following inquiries: 1. The board of trustees of a local tax district recommended a teacher with the approval of the county school superintendent to the county board of education. The county board of education refused to elect said teacher and re- 113 quested that the said board of trustees recommend another teacher. Please inform me what procedure should be followed in order that the deadlock may be broken. 2. Should a teacher be recommended by a local board of trustees of a local tax district without the approval of the county school superintendent, and if the county board of education refused to elect said teacher, then would the deadlock be broken in the same manner as one? The Attorney General is authorized by law to render an official opinion only when so requested by the Governor or by one of the officials of the Executive Department of this State, therefore, anything which I might say in answer to your inquiries must be considered as merely my personal views upon the subject and not binding upon anyone. Section 32-913 of the Georgia Code of 1933 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 behalf, and by the county superintendent of schools on behalf of the board. " Under this Code Section it has been held that the county boards of education have exclusive power to employ teachers for schools under their jurisdiction which includes the schools of the local tax districts. See Orr v. Riley, 160 Ga. 480. While Section 32-1105, in defining the duties of trustees of the school districts, uses the following language, "to recommend to the county superintendent of schools and board of education desirable applicants for positions as teachers. " This was codified from the Code of School Laws of 1919 (Acts of 1919, pages 288-336) and as contained in said Code of School Laws read as follows: "To aid by recommendation of desirable applicants, the county superintend.ent and board of education in keeping the schoolhouse and grounds in good condition and equipped for good work." I believe, therefore, that the purpose of allowing the trustees of the local school districts to recommend teachers to be employed by the county board of education was to aid the said board of education in the selection of teachers and since the county board of education has the exclusive power to contract With the teachers, I do not believe that the recommendations of the trustees of the local school districts have any mandatory potency or are necessarily binding upon the county board of education. See David et. al. v. Board of Education of Macon County, 179 Ga. 498 (2); 176 S. E. 481. It is my opinion, therefore, that if the board of trustees, with the approval of the county school superintendent, recommended to the county board of education a teacher which the county board of education refused to employ, the board of trustees of the local district should recommend another teacher, nor do I believe that the approval of such recommendation by the county school superintendent would have the effect of making the recommendation binding Upon the county board of education without its expressed consent. EDUCATION, COUNTY BOARDS OF-Not authorized to pay rewards for information to convict persons damaging school property. Not authorized to pay damages for injuries caused by school buses. lion. Zach Arnold May 10, 1940 State Auditor I am pleased to acknowledge yours of the 29th ult., which would have re- ceived my earlier attention and reply but for the press of certain schoollitiga- 114 tion now pending in the Supreme Court involving the interests of 156 counties of the State. You request my opinion upon the following questions: 1. Have County Boards of Education authority to offer and pay rewards for the conviction of persons damaging or destroying school property? Answer: Section 36-614 of the Georgia Code Annotated, codified from the Act of 1937, prescribes the purposes for which the common school fund and such appropriations as have been or may hereafter be made by the General Assembly for common school purposes shall be used. Without quoting this section in detail, it may be said that this statute, in substance, authorizes the expenditure of common school funds to pay school teachers, to pay salaries of county school superintendents, to pay to local units of administration their pro rata share of the funds "for the purpose of meeting local administrative expenses, the cost of operating and maintaining school plants, meeting fixed charges, the expense of auxiliary agencies, the expenses of transportation, and other administrative expenses" and for the purpose of paying the administrative expenses of the State Department of Education. The only language of this section which might possibly be construed as authorizing the expenditure of these funds for the payment of rewards would be either as an "administrative expense" or as a part of the cost of "maintaining school plants". However, I am of the very definite opinion that the payment of a reward out of common school funds is not authorized under this language, as such payments are not generally considered as either an administrative expense or as an expense of maintaining school plants. The purpose of a reward is for the arrest and apprehension of persons violating the criminal laws of this State, and county school boards are not charged by any statute of which I am aware with any duty with respect to the detection, apprehension, or prosecution of persons violating the penal laws of this State. It is true that the county boards of education, under Code Section 32-909, "are invested with the title, care and custody of all school houses or other property belonging to subdistricts. . . with power to control the same in such manner as they think will best serve the interests of the common school'' but the duty of enforcing the penal statutes of this State is reposed in law enforcement officers. In fact, the only officer of this State in whom the General Assembly has seen fit to repose the authority to offer rewards is the Governor, and even the Governor's authority with respect to such matters is limited by statute. Code Section 27-101 provides in part: "The Governor shall, in his discretion, offer, and cause to be paid, rewards for the detection or apprehension of the perpetrator of any felony committed within this State, such reward not to exceed the sum of $250 in case of felonies not capital, and not to exceed the sum of $500 in capital felonies". (Emphasis supplied.) The Governor also has the authority, under certain conditions, to offer rewards for the apprehension of persons who burn or set fire to gin houses. If the General Assembly had deemed it wise or expedient to authorize the county boards of education to offer rewards for the conviction of persons damaging or destroying school property, it is evident that they would have done so in the same explicit language as is the case when they conferred the power of offering rewards upon the Governor in felony cases as above described. 2. Are County Boards of Education authorized to pay damage for injuries by school buses? Answer: Our courts have held that in the operation of school buses for the transportation of teachers and pupils to and from the public schools of this 115 State, the county boards are acting in a governmental capacity, and, therefore, are not liable for any damages which may be sustained by any person as a result of such operations. See McLeod v. Pulaski County, et al., 50 Ga. App. 356; Ayers v. Board of Education of Hart County, 56 Ga. App. 146; Roberts v. Baker, 57 Ga. App. 733. Since there is no liability on the part of any county board of education for damages for injuries sustained by persons as a result of the operation of school buses as aforesaid, the county board of education of any given county would not be legally authorized to voluntarily pay damages to a party sustaining injuries and damages under such circumstances. EDUCATION; INDEPENDENT SCHOOL SYSTEMS-Authority to employ teachers. October 28, 1939 Honorable M. D. Collins State Superintendent of Schools This will acknowledge yours of the 25th instant inclosing letter signed by Honorable I. M. Thompson, President of the Board of Education of the City of Tallapoosa, W. B. Brock and W. D. Lloyd, members of said Board and requesting an opinion upon the following question: "In a situation where the Board of Education of an independent school system, created by legislative enactment, has a contract with a county Board of Education to teach certain children residing within the jurisdiction of the county system and attending school in the independent system, does the county Board of Education have the statutory right to name all or any part of the teachers employed to teach in the schools of the independent system?" Under Section 4 of the Act approved March 8, 1937 (Georgia Laws 1937, page 2105) the Board of Education of the City of Tallapoosa is vested with the power "to employ and discharge under such rules as it may adopt, a superintendent and teachers for said schools and to fix their compensation and prescribe their duties." This statute in no wise conflicts with the general law set out in Code Section 32-913 which vests the county boards of education with the power "to employ teachers to serve in the schools under their jurisdiction. " This is true for the reason that the public schools of Tallapoosa are not "under the jurisdiction" of the county board of education, ev,en though said county board of education may have a contract with the city board with reference to the education of certain children not residing within the city limits of Tallapoosa and in the Tallapoosa School District. I am, therefore, of the very definite opinion that the Board of Education of the City of Tallapoosa has the exclusive authority to employ all teachers teaching in said system. (Emphasis supplied. ) EDUCATION; INDEPENDENT SCHOOL SYSTEMS-Authority to borrow money governed by city charter. September 27, 1939 Honorable M. D. Collins State Superintendent of Schools This will acknowledge receipt of a copy of your letter of September 25th addressed to Honorable Sam N. Gardner, Superintendent of Schools, Griffin, Georgia, together with Mr. Gardner's letter of September 21st addressed to You asking if Section 32-1132 of the 1933 Code authorizes the municipal Board of Education of the City of Griffin to borrow money against current revenue. 116 The Code Section in question authorizes the board of trustees of any "local school district levying a local school tax" to borrow money for a period not longer than 12 months in amounts not to exceed the local tax collected on property within the district during any current year, said funds borrowed to be used only for the purpose of paying teachers for the current year. After reading the Act approved Apri117, 1926 (Georgia Laws Extra Session 1926, pages 38, 39) as a whole, now embodied in the 1933 Code as Sections 32-1132 through 32-1135, I am of the opinion that Section 32-1132 has no application to municipal school systems. Except as provided by the general laws of the State, the powers of a particular municipality are determined by the provisions of the special statute or statutes granting or affecting the charter of that municipality. The powers of a board of education created under the provisions of: such charter are, generally speaking, likewise dependent upon such special statute or statutes; whereas the powers of a county board of education or of a board of trustees of a local school district (not created under the provisions of a municipal charter) are governed by general statutes, which have uniform operation throughout the whole State. I think, therefore, that if the General Assembly had intended to include municipal school systems within the provisions of the general law now embodied in Code Sections 32-1132 through 32-1135, it would have done so by express language to that effect. (Emphasis supplied.) You will realize, of course, that I am not permitted to render an official opinion except on matters connected with the business of the State, and that, therefore, this letter is merely an expression of my personal views. Consequently, I would suggest that Mr. Gardner refer his question to the City Attorney of Griffin or to some other local attorney for final determination. EDUCATION-Do local authorities have power to require teachers, upon marri- age, to resign? Ron. c. A. Shealy March 10, 1939 Superintendent of Schools Washington County I have your letter of March 9th in which you request an opinion as to the legality of a certain resolution dated May 3, 1938, of the Washington County Board of Education. The resolution in substance commits the county board of education not to approve married ladies as teachers and provides that when a teacher marries, except under certain conditions, she thereby automaticallY declares her resignation as a teacher. I am sorry that a matter of this kind is not such a question that an Attorney General can, under the law, render an opinion as to the legality thereof. Whether or not this resolution is invalid can only be decided by the courts of this State in a proper proceeding brought to adjudicate the question. Since I cannot render an official opinion upon the question asked, I can only refer you to some general principles that may be applicable upon the subject. These references are furnished simply as a matter of information and in nowise are to be consid- ered as an official opinion of the Attorney General. Section 53-107 of the Code of Georgia of 1933. "Marriage is encouraged by the law, and every effort to restrain or dis- courage marriage by contract, condition, limitation, or otherwise, shall be invalid and void. Prohibiting marriage to a particular person or persons, 117 or before a certain reasonable age, or other prudential provisions looking only to the interest of the person to be benefited, and not in general restraint of marriage, will be allowed and held valid. " See also Carteret al. trustees, vs. .Johnson et al. 186 Ga. page 167; Long vs. Wells, Supt. 186 Ga. page 602. EDUCATION; CONSOLIDATION OF SCHOOLS-Qualification of voters. Majority necessary to effect. Election provided in Code section 32-917 is for one election in the entire consolidated district and not separate elections in each of the districts of which the consolidated district is composed. May 1, 1939 Honorable M. D. Collins State Superintendent of Schools Thls will acknowledge yours of the 24th instant inclosing letter from Honorable George N. Yarbrough, County Superintendent of Schools of .Jeff Davis County, asking certain questions with reference to the consolidation of about ten small school districts in .Jeff Davis County. It appears that there has been a Court order requiring elections to be held in the district affected upon the question of consolidation. Mr. Yarbrough desires to know: (1) Who are qualified to vote in said election? (2) Who shall say who votes? (3) What if one of the small districts votes not to be consolidated, can it be consolidated anyway? (4) Will each district be taken separate and consolidated or not consolidated? and (5) How the results are to be declared? Practically all of these questions. were answered by the Supreme Court of thls State in the case of Smith v. Board of Education, Walton County, 174 Ga. 735. In thls case the Court, in construing Section 32-917 of the Code which vests the County Board of Education with the authority to consolidate or rearrange school districts, held: "Under this section the County Board of Education is empowered to consolidate two or more school districts. The exercise of this power can be overridden by the vote of a majority of the qualified voters of the districts affected, in the manner provided in said section. If as many as one-fourth of the patrons of a school or schools in these districts object to the consolidation, said one-fourth of the patrons consisting of at least ten, it is the duty of the county superintendent to call an election upon the question of such consolidation; and if at such election a majority of the qualified voters vote for consolidation, the districts shall be consolidated, otherwise they shall not be consolidated. This section then provides that 'the result of such election shall be determined and declared by the Board of Education and the same shall be held as other elections are held'." (Emphasis supPlied.) The Court further said: "It would take a vote of a majority of all the registered qualified voters of both districts in favor of consolidation, to authorize the board to declare the consolidation in effect. A vote of a majority of the registered qualified 118 voters voting at the election would not be sufficient to effect the consolidation. To effect such consolidation, a majority of all the registered qualified voters of both districts must vote therefor." In other words, applying the ruling of this case to the situation where ten school districts are to be consolidated into one, it would be necessary for a majority of all of the registered qualified voters residing in the ten districts as consolidated to vote in favor of the consolidation before it becomes effective. For example, if there were residing in the ten school districts to be affected by the consolidation a total of 1, 000 registered qualified voters, it would be necessary for at least 501 of these qualified voters to vote in favor of the consolidation in order for it to become effective. If, for instance, 500 registered qualified voters vote in the election and 498 of the votes were cast in favor of the consolidation and only two against it, the consolidation could not become effective, for the reason that it would be necessary that at least 501 votes be cast in favor of the consolidation. If one particular school district did not vote in favor of the consolidation, yet a majority of all the registered qualified voters of the ten districts as a whole voted in favor of the consolidation, the consolidation would become effective, even as to the district in which a majority of the registered qualified voters did not vote in favor of the consolidation. See Harrell v. Williams, 154 Ga. 632. 636. In determining who should vote in said election, the Jist of registered qualified voters furnished by the county registrars and prepared under the provisions of the general law governing special elections should be followed. In the case of Walker v. Hall, 161 Ga. 461 (2), it was held: "The provision in said section (Code Section 32-917) that 'it shall be the duty of the county superintendent to call an election to be held in such district or districts affected' provides for one election in the entire consolidated district, and not a separate election in each of the districts of which the consolidated district is composed. " It was also held that the requirement with reference to the giving of notice of the election by posting notices in each of the districts to be effected "only occasions the posting of three of such notices in the consolidated district", rather than three notices in each of the local districts consolidated by the county board. I think that this answers all of Mr. Yarbrough's questions. However, if there are other questions I suggest that he read the cases cited in this letter, or consult with his county attorney in the matter. EDUCATION; CONSOLIDATION OF SCHOOLS-Costs of holding elections, how assessed. November 7, 1940 Hon. Zach Arnold State Auditor I have your letter of November 1, 1940, in which you inquire as to whether or not the costs of an election held pursuant to Section 32-917 of the 1933 Georgia Code for the consolidation of school districts is a legal charge to be paid by the County Board of Education. Under said code section 32-917, a county board of education has the right to consolidate two or more districts, or parts of districts, into one district, or to change the line or lines of any district at any time. Where as many as one-fourth of the patrons of said school or schools object to the consolidation (provided 119 said one-fourth of said patrons shall consist of at least ten) it is the duty of the county superintendent of schools to call an election in the manner set forth in said code section. While there is no specific language stating that the costs of holding such election is to be paid by the County Board of Education, the fact that it is. the duty of the County Board of Education to determine and declare the result of such election in my opinion impliedly authorizes payment by the County Board of Education of the costs necessary in holding such election. EDUCATION; CONSOLIDATION OF SCHOOL8-Procedure to consolidate. Trustees election in new district required. Maintenance tax election in new district. Hon. Henry A. Stewart April 29, 1940 Attorney at Law Cedartown, Georgia I have your letter of April 25th in which you ask an opinion on three ques- tions to-wit: 1. What action is necessary for the County Board of Education to legally consolidate two existing school districts into one school district, or to divide and consolidate part of a school district with an existing school district? 2. After the consolidation of a school district or a part of a school district with an existing school district does the law require an election for a local board of school trustees in the new school district as consolidated? 3. After the consolidation of a school district or part of a school district with an existing school district is it necessary that an election for local school tax be held before the new district can legally collect local school taxes from resi- dents of the old districts that have been taken into the new district? These questions are such that I cannot, under the law, render you an official opinion thereon for the reason that they do not involve matters concerning the State and for the further reason that I am only required to render opinions to State officials. Nevertheless, I am giving you my personal views upon these questions with the understanding that this letter is not to be considered official or binding on any one. Section 32-915 of the 1933 Georgia Code gives to the county board of education the authority to consolidate two or more schools of the county. This Section of the Code together with Section 32-917, provide the method of such con- solidation. If you will read these two sections together I think your first question Will be fUlly answered. You will notice that while the county board of education has the right to consolidate the districts if as many as one-fourth of the patrons Of said school or schools object to the consolidation (provided that said one- fourth of said patrons shall consist of at least 10) it shall be the duty of the county superintendent of schools to call an election to be held in said district or districts affected. The further procedure is definitely provided in Code Section 32-917. ~t As to your second states that whenever question, Code Section 32-915 two or more schools are consoli answers t dated, the hat question. county super- lntendent of schools shall call an election of trustees for said consolidated schools from the district or districts concerned; said election shall be held in accordance with the provisions of existing law, and the result determined and declared by the county board of education. 120 Your third question is answered in the case of Perry et al. v. Baggett, tax collector, 164 Ga. p. 143. The headnote of said case reads as follows: "Where three school districts were consolidated into one school district and this new district retained the name of one of the former districts, in which an election had been held authorizing a local tax levy in the district for the support and maintenance of the common schools therein, but no such tax had been authorized in the other two districts which became parts of the new consolidated district, the tax referred to for the purposes stated could not be levied and collected on the property in the new district until authorized at an election duly called and held. " EDUCATION; CONSOLIDATION OF SCHOOLS-Non-bonded district does not assume bonds of a bonded district without separate elections held for that purpose. March 22, 1939 Hon. M. D. Collins State Superintendent of Schools I have your letter of March 15th to which you attach a letter addressed to you under date of March 13th. Your correspondent desires to know whether or not after a consolidation or rearrangement of districts in conformity with Section 32-917 of the Georgia Code of 1933, a district or a part of a district included in the consolidation or rearrangement which has not authorized a local bond or local school district tax is subject to bond or local school district taxes which may have been previously voted by a district or part of the district before such consolidation or rearrangement. Sufficient facts are not contained in your letter or in the letter from your correspondent to give a specific or definite opinion. The question involved is also one relating to local bond tax and local school district tax over which the Superintendent of Schools and the Attorney General do not have any jurisdiction. As a matter of information, the general principles relating to this question have been fully decided by the Supreme Court of Georgia. In the case of Scarborough, et. al, vs. Houston, Tax Commissioner, 179 Ga. page 194, it was held: "Property within parts of school districts where no local tax had been authorized did not become subject to such tax by adding those parts to existing consolidated school districts which had previously voted for the tax". In this case the Supreme Court stated that it followed the case of Register et al. vs. Colter, 171 Ga. page 439, but that it did not follow Huie vs. Morris, 176 Ga. page 562. The Supreme Court further stated that the case of Huie vs. Morris must yield to the ruling made in the case of Register vs. Colter. Other cases upon the question are: Perry vs. Baggett, 161 Ga. page 143; Towns vs. Workmore School District, 166 Ga. page 393; Barber vs. Cummings, 167 Ga. page 289. Campbell, T. C. v. Burton, et al. 182 Ga. p. 354 (2) . In the case of Register vs. Colter, supra, a property owner brought a petition for injunction against the collection of a five mill local district school tax and a five mill local district bond tax. The four lots of land belonging to the property owner were located in Piney Mountain District. Part of the Piney Mountain School District was consolidated with Pine Forest School District and another part of Piney Mountain School District was consolidated with Cadwell School District. So that after said consolidation there was no Piney Mountain School District. All the territory formerly embraced in the Piney 121 Mountain School District was after the consolidation embraced either in the Pine Forest School District or the CadwellSchoolDistrict. Prior to the rearrangement or consolidation the Pine Forest School District voted bonds to buHd a school house. The Pine Forest School District also voted a local school district tax. No local school tax or school bond tax had ever been voted in .the Piney Mountain School District. A lower court granted an interlocutory injunction preventing the collection of the local school district tax and the local school district bond tax. The Supreme Court held that the lower court did not err in granting the interlocutory injunction. EDUCATION; CONSOLIDATION OF SCHOOLS-Outstanding bonded indebtedness, how assumed by consolidation. December 21, 1939 Bon. M. D. Collins State Superintendent of Schools I have your letter of December 13th in which you enclose a letter addressed to you from Hon. 0. R. Guthrie, County Superintendent of Schools of Fannin County, Blue Ridge, Georgia, under date of December 11th. You ask an opinion as to whether the election held for the consolidation of a bonded school district with another school district which is not bonded, shall be in the entire district to be consolidated or separate elections in each of the districts of which the consolidated district is composed. I assume that in the consolidation proposed, if the election is favorable it is intended that the entire consolidated district is to assume the outstanding bonded indebtedness. Under an Act of the General Assembly of Georgia, (Ga. Laws 1931, pages 103-105) an amendment was proposed to Paragraph 1, Section 4, Article 8 of the Constitution of the State of Georgia, so as to authorize the consolidation of local school districts in which one or more bond issues may be outstanding, and to provide that the district as consolidated may assume such indebtedness. This amendment was ratified November 8, 1932. It is now found in Section 2-6901 of the 1933 Georgia Code. In said paragraph, section and article of the Constitution, and the following language is used. "Provided, also, that authority is hereby given to two or more local school districts any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated; provided, however, before such consolidation shall become effective, the same shall be approved by a vote of two-thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendations of the respective boards of trustees, under the same terms and conditions as to advertisement as bond elections by school districts ... " It Will be noticed from the above that the language of this Amendment is very Plain and under the conditions of this section of the Constitution separate elections must be held in each district affected. The cases of Harrell, Supt. et al. vs. Williams et al. 154 Ga. 632 (2) , and Walker et al. vs. Hall, et al. 161 Ga. 460, 461 (2), are not applicable for the reason that both of these cases were deCided before the amendment to the Constitution authorizing consolidation Of two or more districts and the assumption of bonded indebtedness by the entire consolidated district. 122 The Law Department has previously pointed out to you on other occasions that the county board of education should first pass a resolution authorizing the consolidation of the two or more districts subject to the ratification of such consolidation by separate elections to be held in the different districts of which it is to be composed in the manner pointed out by the said constitutional amendment. If the elections in the several districts are favorable such should be reported to the county board of education and another resolution should be passed by the county board of education showing that the elections have been held in accordance with the constitutional provision and that the necessary majority has authorized the consolidation of the districts affected and the assumption of the bonded indebtedness. EDUCATION; CONSOLIDATION OF SCHOOLs-Proceedings to consolidate a non-bonded district with a bonded district to assume bonds. Frequency of elections. April 3, 1940 Hon. N. A. Mercer Superintendent Excelsior Consolidated School Hazlehurst, Georgia I am pleased to acknowledge your letter with reference to the proper procedure to be followed in the consolidation of a non-bonded school district with a bonded school district. While what is said in this letter may not be considered as official, due to the fact that under the law I am not authorized to render official opinions upon matters of this nature except upon the ;request of the Governor, I am glad to give you the following information. Under the amendment to Article VIII, Section 4, paragraph 1, of the Constitution (Georgia Laws 1931, pp. 103, 105) which was ratified November 8, 1932, it is provided: "That authority is hereby given to two or more local school districts, any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated; provided, however, before such consolidation shall become effective, the same shall be approved by the vote of two-thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendations of the respective boards of trustees, under the same terms and conditions as to advertisement as bond elections by school districts, the tickets for said elections to have written or printed thereon, "For Consolidation with Bonded District," or "Against Consolidation with Bonded District"; and in the event said elections result in favor of said consolidation, the result shall be so declared by the boards of trustees of said districts, and thereafter the indebtedness outstanding against any one or more of said districts shall be a valid outstanding indebtedness of the district as consolidated, and taxes for tbe payment of said indebtedness shall be levied accordingly: 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. " The steps which should be taken, pursuant to this provision of the Constitution, are as follows: 123 1. Acting under the authority of Code Section 32-915, the county board of education should pass a resolution stating in substance that in their opinion the welfare of the schools of the county and the best interests of the pupils require that the Piney Branch School District (an unbonded district) be and it is hereby consolidated with the Excelsior Consolidated School ,District (a bonded district), such consolidation to become effective when and if it shall be approved by the vote of two-thirds of the qualified voters of each of said district, at separate elections held for that purpose, and upon the condition that such bonded indebtedness outstanding in the Excelsior Consolidated School District shall be assumed by the entire district as consolidated. 2. The boards of trustees of the respective districts should pass a resolution recommending elections to be held (separately) in each of the said districts to vote upon the question of the consolidation. 3. Each local board of trustees should also pass a resolution prescribing the date when and the place where said elections shall be held in the respective districts. (They may be held "on the school site or other suitable place in the school district. " See Section 32-1401.) 4. Said boards of trustees should give notice of the date, time and place of such elections by posting the same at three public places in each of said school districts, not less than ten days previous to said election. (Code Section 32-1401.) 5. The tickets or ballots for said election should have written or printed thereon "For consolidation with bonded district" or "Against consolidation with bonded district". (See Article VIII, Section 4, paragraph 1, of the Constitution. ) 6. If the election results in favor of consolidation, "the result shall be so declared by the boards of trustees of said districts, and thereafter the indebtedness outstanding against any one or more of said districts shall be a valid outstanding indebtedness of the district as consolidated, and taxes for the payment of said indebtedness shall be levied accordingly. 7. The respective boards of trustees should also certify the result of the election, if favorable, to the county board of education, and the county board of education should pass another resolution to the effect that the local school districts having approved the consolidation heretofore made by the county board of education, at separate elections held in said districts as prescribed by law, the consolidation is hereby declared to be and is effective as of the date of said elections. In your letter you ask the further question, "How often can such an election be called?" Although there is a provision in Section 32-1108 of the Code which prohibits an election for the purpose of determining whether any school district shall levy local taxes for public schools being held more often than every twelve months, there is no such prohibition or limitation upon the number of frequency of elections which may be held to determine the question of whether any non-bonded school district shall become consolidated with a bonded school district. 124 EDUCATION; CONSOLIDATION OF SCHOOLS-New district may assume outstanding bonds by two-thirds vote of each district at separate elections. May 30, 1939 Hon. H. L. Abrams Secretary&Treasurer Lyerly School District Lyerly, Georgia I am pleased to acknowledge receipt of your letter of May 23, 1939, regarding the local and bond tax of your school district in reference to its consolidation with another district. This presents a local problem which the Attorney General is without authority under the law to officially rule on. However, I am glad to give you the following suggestions which I am sure will be of some service to you in working out your problem. The consolidation of this other school district with the Lyerly School District of course affects the situation in reference to the taxation as to the added school district. The taxpayers in the added school district would in no way be bound by the local or bond tax voted by the Lyerly School District. In the case of Campbell, Tax Collector, v. Burton et al, 182 Ga. 354, the court held as follows: "Where several school districts are consolidated into one school district, the consolidated district becomes a new and distinct entity, and the five mill tax by the trustees of the consolidated district cannot be levied until authorized at an election duly called and held, although before the consolidation separate elections have been held in the several districts authorizing a local tax levy for the support and maintenance of the common schools in said several districts. " This question has been passed upon in the cases of Perry v. Badgett, 164 Ga. 143; Towns v. Workmore School District, 166 Ga. 393; Barber v. Cummings, 167 Ga. 289; and Register v. Colter, 171 Ga. 439. And in this connection the case of Scarborough v. Houston, Tax Commissioner, 179 Ga. 194, will be of interest to you. In working out your situation, your attention is called to Article VIII, Section 4, paragraph 1, of the Constitution of Georgia, as codified in the Code of 1933 as Section 2-6901, which reads in part as follows: "No additional election shall be reqUired to maintain any local school tax now in existence in districts, counties or municipalities, provided this paragraph shall not apply to counties having a local school system of taxation adopted prior to the Constitution of 1877. Provided also that authority is hereby given to two or more local school districts, any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated; provided, however, that before such consolidation shall become effective, the same shall be approved by the vote of two-thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendations of the respective boards of trustees, under the same conditions as to advertisement as bond elections of such school district, etc. " I do not quite understand from your letter just what the status of your situation now is, but I am sure that with the aid of the authorities above quoted, you will be able to successfully work out your problem. 125 EDUCATION; CONSOLIDATION OF SCHOOLS-Maintenance tax in combined districts must be authorized by an election in the new district. February 16, 1940 Hon. M. D. Collins State Superintendent of Schools I am pleased to acknowledge yours of the 8th instant inclosing letter of Hon. Clement E. Sutton, Attorney at Law, of Washington, Georgia, under date of February 2, 1940, which communication would have received my earlier attention but for the fact that I have been out of town on official business for the State for the past several days. In the case of Campbell, Tax Collector, v. Burton, 182 Ga. 354, one of the cases cited in Judge sutton's letter, it was held: "Where several school districts are consolidated into one school district, the consolidated district becomes a new distinct entity, and a five mill tax by the trustees of the consolidated district cannot be levied until authorized at an election duly called and held, although before the consolidation separate elections had been held in the several districts authorizing a local tax levy for the support and maintenance of the common schools of said several districts." This decision was concurred in by all the Justices and is, therefore, binding. Accordingly, it would be a more or less futile act to hold an election in a local school district in anticipation of its consolidation with another local tax district, for, under the ruling of our Supreme Court, immediately upon the consolidation of the two districts, the trustees of the consolidated district would have no authority to recommend to the tax authorities the levy of any local taxes for maintenance, and the authority of the trustees of the old districts in this respect would terminate when the consolidation is effectuated. EDUCATION; CONSOLIDATION OF SCHOOLS-Authority of secretary-treasurer of new district to receive money belonging to separate former districts. Title to school building in County Board. After order of County Board consolidating two districts an election may be called in a reasonable time to confirm or reject consolidation. July 24, 1940 Honorable M. D. Collins State Superintendent of Schools This will acknowledge yours of the 20th instant requesting my opinion upon the following questions: Question 1. Where two school districts have been consolidated, one of Which having outstanding school bonds and the other having no outstanding bonds, but the school district not having bonds has a school building and money, to Whom should the money be turned over and to whom should the deed for the new school building be given? Answer. When the county board of education of a county, duly acting Under the authority of Section 32-917 of the Code, consolidates two or more school districts into one district, the old school districts thus consolidated lose their legal indentity and a new legal entity, the consolidated school district, Is created. It is then in order for the county superintendent of schools to call 126 an election for trustees of the consolidated school district and the result of said election is determined and declared by the countyboard of education. The trustees of the consolidated school district thus elected are entitled to receive, as trustees the money beloneing to either of the old districts and when a treasurer is elected by said trustees and gives the required bond, such money should be turned over to said treasurer. Otherwise if the treasurer does not give the required bond, then the money should be turned over to the county board of education for the use of the consolidated school district. As to the disposition of the school buildings and real estate the law provides that the county board of education is "invested with the title, care and custody of all school houses or other property belonging to the subdistricts now or hereafter definP-d, with power to control the same in such manner as they think will best serve the interest of the common schools. " (Code Section 32-909.) Question 2. After a consolidation is made, within what period of time after said consolidation must one-fourth of the patrons petition the county board of education to call an election to determine whether or not the consolidation stands? Answer. Referring you again to Code Section 32-917, it is provided that after the county board of education has consolidated two or more districts "should as many as one-fourth of the patrons of the said school or schools object to the consolidation (provided that said one-fourth of said patrons shall consist of at least ten), it shall be the duty of the county superintendent of schools to call an election to be held in said district or districts affected, giving thirty days notice of same by publishing the same once a week for four weeks in the paper in which the county advertisements are published, and also by posting notices at three or more public places in the district or districts to be affected thereby, at which election should a majority of the qualified voters vote for consolidation, the schools shall be consolidated, otherwise not." It. will be observed that this code section, which is the only statutory authority upon the subject, prescribes no time limit within which the objection to the consolidation shall be filed. I am of the opinion, therefore, that if objections to the consolidation are filed within a reasonable time after the resolution of the county board of education providing for the consolidation it would be the duty of the county superintendent of schools to call the election. What is or is not a reasonable time would depend upon the circumstances of each case, and is a matter which I cannot determine. Although your request for an opinion does not involve the question as to the legality of the consolidation, I wish to point out that before the property of persons residing in the non-bonded territory involved in the consolidation could be subject to taxation to retire the bonds which were outstanding in the bonded territory, it would be necessary that the consolidation be perfected in the manner and under the procedure outlined in Article VIII, Section IV, Paragraph I (Code Section 2-6901) of the Constitution. Although I assume from your letter that the question of the liability of the property of persons in the non-bonded district for the payment of taxes to retire the bonds is not involved, I thought it well to point out that if it was contemplated by the county board of education that the non-bonded territory should be subject to taxation for j the retirement of the bonds a consolidation perfected under the authority I of Section 32-917 of the Code would not be effective for this purpose. f i i ~ I ~ 127 EDUCATION; TRANSPORTATION OF PUPILS-County Boards or local district trustees authorized to transport pupils. Hon. M. D. Collins September 7, 1939 State Superintendent of Schools This will acknowledge yours of the 6th instant inclosing telegram signed by Hon. Wm. T. Bodenhamer requesting an opinion as to the authority of the County Board of Education of Tift County to provide for the transportation to and from the Tifton High School of tenth and eleventh grade pupils who live in districts where there are no tenth and eleventh grades, and refuse to transport pupils in other grades whose parents desire that they attend the Tifton School, rather than the local district school, and who are willing to pay tuition to the Tifton School. Under Article 8, Section 4, Paragraph 1 of the Constitution (Code Section 2-6901) , it is provided in part: "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. " Code Section 32-919 provides: "Transportation of pupils and teachers. -Whenever the county board of education or local district trustees deem it for the best interest of the school, they shall have the right to provide means for the transportation of the pupils and teachers to and from said school. No school trustee, teacher or county superintendent of schools shall be financially interested in the transportation of pupils. " It will be observed from a reading of these Sections that the matter of transporting or not transporting school children to and from the public schools of this State has been confided to the governing authorities of the county boards of education, independent school districts and local school districts. It has been said by our Supreme Court: "The transportation of pupils from their homes to the public schools of this State is a matter which rests within the discretion of the county board of education according to the circumstances of each particular case where such transportation is desirable, and the exercise of this discretion will not be interfered with unless there is a manifest abuse of discretion. " Douglas v. Board of Education of Johnson County, 164. Ga. 271 (2). This case was decided before the amendment to the Constitution in 1932 first above quoted. It may be said that said amendment is sufficient to vest in the governing authorities of the local school districts and independent school districts the authority to contract with each other or with the county board of education for the transportation of school children. Whether any particular rule or regulation promulgated by the county board of education or any contract made between the county board of education and With any local school district or independent school system with reference to the transportation of school children and their education is rr is not valid would depend upon the circumstances of each individual case, and unless there was a clear abuse of discretion on the part of the g0verning authorities of the re- spective school units making the contract, the courts, I am sure, would not set the contract aside. As intimated above, the matter about which Mr. Bodenhamer requests an opinion is one of a local nature and one over which the State Department of 128 Education has no jurisdiction. What is said above is, therefore, purely unofficial, and I would suggest that the County Attorney of Tift County be consulted in the matter. EDUCATION; TRANSPORTATION OF PUPILS-Discipline over pupils in school buses. October 18, 1939 Hon. M. D. Collins State Superintendent of Schools This will acknowledge yours of the 12th instant inclosing letter of Mr. N. R. Haworth, Superintendent of the Canton Public Schools, under date of October 5, 1939. You request an official opinion upon the questions propounded in Mr. Haworth's letter as follows: Where the County Board of Education of Cherokee County transports children to the Canton Public Schools, an independent system, on busses not owned by the County and not operated by the County (the County, however, electing the bus drivers and payjng the salaries and the cost of transportation of the pupils) , who has the authority as between the Cherokee County Superintendent and the Superintendent of the Canton Public Schools to settle a problem of discipline arising during the trip to and from the Canton Public Schools? Code Section 32-919 expressly provides: "Whenever the county board of education or local district trustees deem it for the best interest of the school, they shall have the right to provide means for the transportation of the pupils and teachers to and from said school." Under Article 8, Section 4, Paragraph 1 of the Constitution, "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." It will be observed, therefore, that the law confides all matters with reference to the transportation of school children in the county board of education. Under Section 32-1009 prescribing the duties of the county superintendent of schools, it is provided in part: "It shall be his duty to enforce all regulations, rules and instructions of the State Superintendent of Schools and of the county board of education according to the laws of the State and the rules and regulations made by the said board of education that are not in conflict with the State law. " (Emphasis supplied. ) Matters of discipline arising on a school bus operated in the manner prescribed above would, it is my opinion, fall under the jurisdiction of the county superintendent. EDUCATION; TRANSPORTATION OF PUPIL8-Inspection of mechanical condition of school buses. November 8, 1939 Hon. M. D. Collins State Superintendent of Schools This will acknowledge yours of the fourth instant inclosing the letter of Hon. F. T. Wills, Superintendent of Cobb County Schools, under date of November 3rd. Mr. Wills states in his letter that the Georgia State Patrol has checked up on some of his school buses and has advised the operators that it 129 was necessary to equip such buses with fire extinquishers, first aid kits, flares, extended exhaust pipes, mechanical school signs, etc. He desires to know whether it is mandatory to carry out the suggestions and advice of the Patrol. The matter about which Mr. Wills writes should be taken up with the county attorney for advice. I am not authorized to give any official opinion with reference to these matters for the reason that the matter of transportation of school children is one which the law confides to the county boards of education, and the facilities provided for the transportation of school children are under the supervision and control of the county school authorities. By an Act approved March 24, 1939 (Georgia Laws 1939, page 297) it is provided in part: "That the maximum speed limit for buses used in transporting school children, and when actually transporting one or more school children, shall not be operated in excess of 40 miles per hour, and provided further that all school buses must be inspected when required, or requested, by the Director of Public Safety or any member of the Georgia State Patrol, in order to ascertain its mechanical and physical condition as to brakes, lights and any other feature which in the opinion of the Director of Georgia Department of Safety may deem essential, for the safety of its driver, passengers, and general public. " I am unable to find any statute which makes it mandatory for the county school authorities to carry out any recommendations made by the Georgia State Patrol, acting under the provisions of this statute, but, of course, I assume that the school authorities will be disposed to cooperate in putting into effect all reasonable safety measures so as to insure the safe transportation and wellbeing of the school children under their supervision. EDUCATION; TRANSPORTATION OF PUPILS-Local district trustee cannot serve as driver of school bus operated by his district for compensation. June 28, 1939 Miss Mamie Lou Gross County Superintendent of Schools Kingsland, Georgia This will acknowledge receipt of your letter of June 23rd in which you inquire as to the legality of a person serving as a trustee and at the same time serVing as a bus driver of the school which he is serving as trustee. The Attorney General is authorized by law to render official opinions only When so requested by the Governor or by one of the officials of the Executive Department of the State. Therefore, anything which I might say in answer to Your inquiry must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. Your attention is called to Section 32-919 of the Georgia Code of 1933, which reads as follows: "Whenever. the County Board of Education or local district trustees deem it for the best interest of the school, they shall have the right to proVide means for the transportation of the pupils and teachers to and from Said school. No school trustee, teacher or county superintendent of schools shall be financially interested in the transportation of the pupils. " In my opinion, the above Code section is controlling and would not permit a trustee to become financially interested in the transportation of pupils. 130 EDUCATION; TRANSPORTATION OF PUPILS-County Board member cannot be financially interested in the transportation of pupils. August 2, 1940 Honorable M. D. Collins State Superintendent of Schools This will acknowledge yours of the 29th ultimo requesting my opinion as to whether a member of a county board of education should be financially interested in any way in the transportation of pupils. While Code Section 32-919 provides in part: "No school trustee, teacher or county superintendent of schools shall be financially interested in the transportation of pupils," and the language of this section is not broad enough to prohibit a county board member from being financially interested in the transportation of pupils, nevertheless I am of the opinion that if the board member in question participated in the making of the contract or his vote determined whether or not the contract was awarded to him it would be illegal as against public policy. As a general rule no person may contract with himself and Code Section 4-204 declares "without the express consent of the principal after a full knowledge of all facts, an agent employed to sell may not himself be the purchaser; and an agent to buy may not himself be the seller." When it is considered that a member of a county board of education, in making contracts with reference to the transportation of pupils, is acting in the capacity of an agent for the county it would seem that this last quoted provision would prohibit him, without making full disclosure of all the facts, from purchasing property to be used in transporting pupils, out of which he would make a profit, from himself. Furthermore Section 23-1713 of the Code provides: "No ordinary, county commissioner, board of county commissioners, or any other county officer authorized or empowered by law to use public or county funds for the purchase of goods or property of any kind for public or county purposes, shall purchase said goods or property from any store in which he is an employee, or in which he is directly or indirectly interested, or from any person or partnership of which he is a member, or by whom he is employed, unless by sanction of the majority of the board of county commissioners of the county, or unless it shall be made clearly to appear that the said individual, partnership or owner of the store offers and will sell the goods or property as cheap as or cheaper than it can be bought elsewhere." Under this code section a contract by a county board member with himself, unless it clearly appears that the goods or property purchased from him, or from any partnership, or any store in which he was directly or indirectly interested, unless the goods or property were obtained as cheap or cheaper than it could be bought elsewhere would be illegal. Your inquiry is framed in such broad and general language that it is difficult to answer it definitely. If a particular contract, or set of facts were submitted, it could be more readily determined whether the contract is or is not illegal. 131 EDUCATION-Pupils non-resident of the county attending school without arrangement as provided for county line schools and against whom a tuition is assessed may not be counted in average daily attendance in computing funds for teachers. September 7, 1939 Hon. M. D. Collins State Superintendent of Schools I have your letter of September 6, 1939, as follows: "At a meeting of the State Board of Education on August 23, certain questions were raised growing out of the facts hereinafter stated. A school situated in a local unit in a county of this State is engaged in teaching children of the elementary grades for the public who are residents in the local unit. The same school also operates a high school department and teaches children who are residents of the local unit in the high school grades against whom no tuition is assessed. There are a substantial number of high school students being taught in the same high school department of said school who are nonresidents of the county in which the school is located, and against these nonresident high school pupils, a substantial tuition is assessed. The nonresident high school pupils do not attend the school in question by reason of any contract between public school authorities of adjoining counties, but they attend such school purely because of a personal choice so to do. "Under the above stated facts and circumstances the State Board of Education has been called on to decide whether or not State school funds can be disbursed towards payment of teachers in such a school based on the average daily attendance of all pupils in elementary and high school grades both as to residents and nonresidents. If State school funds cannot be expended for all classes of pupils described above, what portion or portions of the said pupils may be counted in arriving at the daily attendance WhiQh would authorize the State Board to allow State school funds therefor. At the same meeting of the State Board of Education a resolution was passed, requesting an opinion of the Attorney General upon the above questions. Therefore, will you kindly render an opinion in the premises. " Under the Equalization Educational Opportunities Act (Ga. Laws 1937, pp. 882-892), Section 3 thereof in part provides that "the several counties of the State, and the various independent school systems established by law shall be the local units of administration." Section 4 of the Act provides for five groups of the various local units of administration on the basis of the United States Census. Section 5 of said Act specifies the required average daily attendance necessary in each group to determine the number of teachers to be employed. The foregoing provisions of said Act clearly indicate that the scheme of the law is to determine the number of teachers according to the population of the Particular county in which the school is operated in conjunction with the average daily attendance. Public school facilities are furnished in each and every county in the State of Georgia. Children who attend the public schools of this State in the elemen- tary and high school grades are minors. The domici.le of every minor is that of his Parents or guardian in accordance with the rule stated in Section 79-404 of the 1933 Georgia Code. According to the statement of facts presented in your letter a substantial number of high school students being taught in the school in question are nonresidents of the county in which the school is located. It is not stated whether all or part of these nonresident students are residents of 132 other counties in the State of Georgia. This State would owe no duty to expend Georgia State public school funds for the education of students who are nonresidents of this State. If it should be contended that some of the nonresident pupils attending the high school in question are residents of other counties of this State and that such students should receive the benefit of State public school funds, an insurmountable problem would arise in the effort to determine the population of the separate counties from which the separate nonresident pupils came to be considered in conjunction with average daily attendance of the school in question. Therefore, as a practical matter the Equalization Educational Opportunities Act of 1937, supra, could not be administered on such a basis. In view of this conclusion it is unnecessary to rule on the question of whether 1r not it would be unlawful in itself for State public school funds to be allowed for a school in a county upon the average daily attendance of a student nonresident of that county. The practical administration of the aforesaid school act of 1937, in my opinion, lawfully warrants the State Board of Education in holding that students whose parents are residents of the county in which the school is located, may be counted in ascertaining the average daily attendance, but students who are nonresidents of the county are not to be counted in arriving at the number of teachers for participation in State public school funds. EDUCATION-Nurse cannot be paid a salary from educational funds. June 28, 1940 Hon. M. D. Collins State Superintendent of Schools I am pleased to acknowledge yours of the 24th instant enclosing the letter of Honorable N. P. Malcom, Superintendent of the Seminole County Board of Education, requesting an opinion as to whether the county board of education of said county has the authority to pay the salary of a county nurse for the next fiscal year. The purposes for which school funds received from the State by the various local units of administration may be used are set out in Section 9 of the Equalizing Educational OpportUnities Act (Georgia Laws 1937, pages 882, 886). So far a:s personnel is concerned, these purposes include only the payment of "teachers in the public schools" and the payment of "the salaries of county school superintendents as now provided by law" and "the expenses of transportation" which would include the salaries of school bus drivers. There is no express authority contained in this statute authorizing the payment of any such funds by the local Units of administration to a person as a county nurse. As to the purposes for which county tax funds may be leVied and expended, these are set out in Section 92-3701 of the Code. Suffice it to say that the purposes outlined in this section do not include the payment of a county nurse by the county board of education, although the power was given by the Act of 1939 (Georgia Laws 1939, page 200) to the county authorities to levy a tax "to provid9 medical or other care and hospitalization for the indigent sick people of the county, not exceeding one mill." This tax and the revenue raised therefrom, however, must be considered as separate and apart from the tax and revenue authorized to be levied "to pay charges for educational purposes. " Therefore, I am of the very definite opinion that the county boards of education of this State have no authority to appropriate either State or county tax funds received by them to the purpose of paying the salary of a county nurse. I am returning the letter of Honorable N. P. Malcom. 133 EDUCATION-Money cannot be borrowed in one fiscal year on anticipation of State funds for a future fiscal year. County-wide taxes for the calendar year may be used to repay money borrowed to operate schools between .January 1st and .Tune 30th of the same year. Teacher has no recourse against the State for seven months' salary if revenue is insufficient to pay appropriation therefor unless subsequent legislature provides for the deficiency. April 3, 1939 Hon. M. D. Collins State Superintendent of Schools Acknowledgement is made of the letter dated March 30th over the signature of your assistant, Hon. M. E. Thompson, asking an official opinion upon the following questions: 1. Where a county board of education or the board of trustees of a local school district levying a local school tax borrows money to operate the schools and to pay teachers' salaries for the portion of the 1938-39 school year, between .January 1, 1939 and .Tune 30, 1939, what anticipated school revenues or funds may be used towards the repayment of such loan? 2. In a case where the teachers' salaries in a particular county or school district have been paid through the first half of .January, 1939, of the school year 1938-39, from funds supplied by the State under the seven months school law and the State school funds for the school year 1938-39 have been exhausted, what legal recourse, if any, does a teacher have for the collection of his salary for the unpaid portion of the seven months 1938-39 school year where such teacher actually performs his service as teacher in such school for the full seven months' period of the 1938-39 school year? County Boards of Education have the power to borrow money for the operation of the public schools of their counties. Section 32-921 of the Georgia Code of 1933, as amended by Georgia Laws 1937, pages 880, 881, giving this power and prescribing the conditions under which said money may be borrowed, reads as follows: "The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made. " The board of trustees of any local school district levying a local school tax has authority to borrow money for the purpose of paying teachers for the current year. Section 32-1132 of the Code of Georgia of 1933 setting forth the power of the local board of trustees to borrow money and prescribing the conditions upon which said loan may be obtained, reads as follows: "The board of trustees of any local school district levying a local school tax shall have authority to borrow money for a period not longer than 12 months in amounts not to exceed the local tax collected on property within the district during any current year, said fund or funds borrowed to be used only for the purpose of paying teachers for the current year. " In the case of Board of Education of Monroe County vs. Thurmond, et al., 162 Ga. page 658, it was held that the Board of Education of Monroe County having lawfully incurred debts for money loaned to pay teachers and operate 134 the public schools of the county, it was in the power of that board to repay such debts from any funds that could be lawfully applied to such purpose, including funds derived from the levy of a local tax in the fall of 1924 for operating the schools. See also, Board of Education of Houston County, et al. vs. Board of Trustees of Fort Valley Consolidated School District, 170 Ga. page 509. In the case of Lewis v. Board of Education of Lowndes County, et al. 183 Ga. page 687, the court said: "The transaction involved in Board of Education of Monroe County v. Thurmond, arose before the Act approved August 25, 1925 (Code Section 32-947). "A careful study of the legislation in this State relating to the common schools, and particularly the Act of 1919 (Ga. Laws 1919, pages 288, 363) and the Act of 1925 (Code Section 32-947) shows an intent on the part of the legislature to systematize and regulate the expenditure of the commonschool funds so as to prevent an accumulation of burdensome debts by the boards of education over the State, and to provide for the operation of schools in such manner that the expenditures shall not exceed the income. County boards are given authority to borrow money to pay for the operation of the public schools of the county, 'provided, that no board of education shall have authority to borrow a sum of money greater in the aggregate than the sum to which the county may be entitled from the public-school fund.' Code Section 32-921. It is further provided that 'It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year. Any Indebtedness created, contract made, or order or draft is sued in violation thereof shall be void.' Code Section 32-928. The appropriation referred to in this section means funds received from all sources for the support of the public schools for the current fiscal year. McKenzie v. Board of Education, 158 Ga. 892 (124 S. E. 721) . " While Section 32-947 of the Georgia Code of 1933 relating to budgets to be furnished by the county boards of education to the State Superintendent of Schools and the State Board of Education was repealed by the Equalization Opportunities School Act (Ga. Laws 1937, page 882) , the latter school act under Section 12 thereof (Ga. Laws 1937, page 888) re-enacted a requirement that the board of education of each local unit shall file with the State Superintendent of Schools a budget showing proposed expenditures for the ensuing school year, and provides that the same shall become operative and shall be followed in all expenditures made by such local unit of administration during said ensuing school year. Therefore, in my opinion local units of administration are compelled to use State school funds provided for such local units, first to the operation of the schools during the particular school year for which said State funds are appropriated and paid.' It is my further opinion that local units of administration cannot take State school funds, including State equalization school funds and use the same for repaying a loan obtained for operating the schools in a prior school year, unless there should be a surplus of such funds after the schools were operated for the particular school year in which the said State school funds were appropriated and paid. (Emphasis supplied.) Countywide school taxes inuring to the benefit of the county schools under the administration of the county board of education are levied for the calendar year, that is from January 1st through December 31st. Likewise local district school taxes, for the benefit of the local unit under the administration of the 135 Board of Trustees of the local school district levying the local tax, are levied for the calendar year. Both of these tax levies are assessable against the property of any taxpayer subject thereto as of January 1st of the year of such levy, although such taxes are not due until the fall of the year and ft. fas. thereon are not issued until December 20th. In my opinion, 1939 countywide school taxes collected in the fall of the year 1939 may be used by a county board of education in repaying a loan obtained to operate the schools of the county for any portion of the 1938-39 school year, occurring between January 1, 1939 and June 30, 1939. Likewise, in my opinion the 1939 local school district taxes to supplement the public school fund collected in the fall of the year 1939 may be used by a county board of education in repayinr a loan obtained to pay teachers of that local district for any portion of the 1938-39 school year, occurring between January 1st, 1939 and June 30th, 1939. In such a case, where anticipated countywide school tax or local school tax collectible in the fall of the year are used for the repayment of a loan to operate the schools for the first months of the calendar year, it might practically result in a situation where no countywide tax or local tax funds would be left for the operation of the schools for the latter months of the same calendar year. State school funds, including State equalization school funds, are appropriated and paid for a fiscal school year beginning July 1st and ending June 30th. (Ga. Laws 1937, p. 882). Such State school funds are intended to be used first for the operation of the schools during the particular year in which such appropriations are made. Therefore, in my opinion State school funds, including state equalization funds, coming to a local unit of administration from an appropriation made for the school year of 1939-40 cannot be used to repay a loan obtained to operate the schools or pay teachers for any portion of the 1938-39 school year, occurring between January 1, 1939 and June 30th, 1939, unless there should be a surplus of the 1939-40 State school fund after the operation of the schools for the full seven months' term of the 1939-40 school year. I now take up the second question contained in your letter. The General Appropriation Act approved March 30, 1937, (Ga. Laws 1937, pages 54-72) under Section 24 thereof, appropriates to the State Department of Education for the :fiscal year beginning July 1, 1938 and ending June 30, 1939, a definite sum for aid to the common schools. Section 27 of said General Appropriation Act however, provides as follows: "In the event that the funds available for paying the fixed sum appropriation herein made should be less than the total sum of appropriations, then such appropriations shall be reduced, pro rata in the amount of such deficiency; provided, however, that the sums appropriated for the principal of and interest on the public debt, and for the judicial and legislative branches of the government shall not be affected by the provisions of this section." On account of the provisions of said Section 27 of said General Appropriation Act, commonly known as the "grandfather" clause, the appropriations made for the co=on schools are made amenable to the revenues derived by the State in paying such appropriation, and when the revenues are not sufficient to pay the appropriation, such appropriation is reduced pro rata in the amount of such deficiency. Therefore, it is my opinion that where the State is not able to pay teachers' salaries for the full seven months' school year on account of the lack of revenue, teachers have no legal recourse against the State or any of its officials to compel the payment of the unpaid portion of the 1938-39 school 136 year of seven months where such teacher may have actually performed such teaching services for the full seven months' period. EDUCATION-County-wide school taxes for calendar year may be used to repay school loan between January 1st and June 30th of the same year. May 1, 1939 Hon. Stanley S. Bennet .Bennet and Bennet Attorneys at Law ,Quitman, Georgia I have your letter of April 27th. You refer to an opinion which I rendered to Hon. M. D. Collins, State Superintendent of Schools under date of March 23, 1939, in which I held that a county board of education may borrow money for the operation of its schools for the period from January 1, 1939 to June 30, 1939, and repay such loan from countywide school taxes for the year 1939. You state that my opinion is contrary to one which you rendered recently to the Board of Education of Brooks County upon the same subject. When a good lawyer like you reaches a conclusion different from mine, I am always anxious to reinvestigate the question to see lf I have reached the wrong conclusion. On April 3, 1939, I rendered an opinion to Hon. M. D. Collins, State Superintendent of Schools, in which I went into the same question in more detail than in my letter of March 23rd. In the letter of April 3rd, I discussed the case of Lewis vs. Board of Education of Lowndes County, et al., 183 Ga. 687, which was the case you mentioned in your letter of April 27th. It is true that the transaction in the case of Board of Education of Monroe County vs. Thurmond, 162 Ga. 588, arose before the Act of 1925 (Ga. Laws 1925, page 135), relating to budgets, codified as Sections 32-946 and 32-947 of the Georgia Code of 1933. However, the said sections of the code were expressly repealed under section 18 of the Equalizing Opportunities School Act of 1937 (Ga. Laws 1937, pages 882-892) . Section 12 of said Act of 1937 re-enacted a reqUirement that the board of education of each local unit shall file with the State Superintendent of Schools a budget as therein provided. I shall not attempt to repeat in this letter the things which are contained in my opinion of April 3rd. A copy of that opinion is enclosed herewith for your consideration. The main difficulty in the question arises from the fact that the State fiscal and school year covers the period from July 1st through June 30th, while the county tax and fiscal year is for the period from January 1st through December 30th. I realize that it is somewhat impractical for a school budget which is furnished under Section 12 of the Act of 1937 to correctly reflect an estimate of the countywide and local tax funds which the school may receive in the portion of the year from January 1st through June 30th. Nevertheless I think that since countywide and local school tax levies are made for the calendar year, the school authorities can repay a loan for the operation of the school for the period from January 1st through June 30th out of countywide or local school tax funds collected in the fall of the same calendar year. Your attention is especially directed to an Act of the General Assembly of Georgia approved March 31, 1937 (Ga. Laws 1937, pages 880-882) , which amends Section 32-921 of the Code of Georgia of 1933, relating to the power of county 137 boards of education to borrow money. The amendment added on to the previous code section the following words: "and from taxes levied for educational purposes during the year in which such loan is made. " (Emphasis supplied. ) I think under the language of this Section my conclusion is justified. If you have any further ideas of the law which may not agree with my conclusion, I would be glad to have you write me. I want you to understand that it is not my purpose to usurp any prerogative of a county attorney to make a ruling to his county board of education and in such cases the ruling of the county attorney is the ruling which should be followed in these matters which involve the use of county and local school funds. EDUCATION-Payment of sum greater than principal and interest of school loan is unauthorized and illegal. May 17, 1939 Hon. Zach Arnold State Auditor I have your letter of May lOth in which you set forth a statement of facts and ask an opinion upon questions therein stated as follows: "The County Board borrowed money, for which they gave a negotiable note. From time to time the Board made partial payments on principal and interest. These credits were not endorsed on the note. Before maturity the lender hypothecated the note and himself borrowed from a third party a sum greater than the Board of Education owed on the note. "The lender to the Board died and the holder of the note claimed and was paid a sum greater than was due by the Board. The County School Superintendent was the Board officer who handled the transactions of securing the loan and of making the partial payments. The specific questions to which I should like you to direct your opinion are: " 'Could the County Board legally approve the use of public funds for paying this excess amount of the loan? " 'If they could legally approve the payment, would there be misfeasance of the County School Superintendent to a degree requiring the County Board in turn to collect the amount from him and his sureties?' " The statute (School Code, Georgia Laws 1919, page 288 et seq.) gives the custody of school funds of the county to the county school superintendent, and requires that he give an official bond as such. This bond is for the faithful performance of his duties. By statute every official bond is obligatory upon the principal and surety thereon, "for the use and benefit of any person who is injured, as well by a wrongful act committed under color of his office, as by his failure to perform, or by the improper or neglectful performance of those duties imposed by law. " This statute became an integral part of the bond of the county school superintendent. Citizens Bank of Colquitt v. American Surety Company of New York, 174 Ga. 852 (164 S. E. 817). American Surety Company Of New York v. NeSmith, 49 Ga. App. 40, 41, 3 (b). (Code Section 32-1005. Code Section 89-402) . The official bond of the county school superintendent is made payable to the county board of education; and that board not being a body politic or corporate with authority to sue and be sued, in the ordinary sense, an action by the individuals composing it may be properly brought in behalf of the county board of education on the bond of the county school superintendent. American 138 Surety Company of New York vs. NeSmith, 49 Ga. App. 40 (1), and other cases cited. In a case where a county school superintendent deposited county public school funds in a bank which closed with a resulting loss of such funds before the passage of the Act of March 16, 1933 (Ga. Laws 1933, pages 77, 84, Code of 1933, Section 89-816) the county school superintendent contested liability for such loss on the ground that the board of education had by resolution properly entered on the minutes of said board designated the bank in which the deposit was subsequently lost as a depository for said funds. Landrum vs. Thomas et al. 52 Ga. App. 257. In that case the court quoted from the case of American Surety Company of New York vs. NeSmith, supra, as follows: "It is one of the duties of a public official intrusted with public moneys to keep them safely; and this duty of safe custody must be performed at the peril of the official. In effect, according to the weight of authority, a public officer is an insurer of public funds lawfully in his possession, and therefore liable for losses which occur without his fault. He is answerable in all events. The liability is absolute, admitting of no excuse, except perhaps the act of God or the public enemy . . . In most jurisdictions the rule is firmly established that a public official intrusted with the custody of public moneys is personally liable for their loss through the failure of the bank in which he had deposited them, however careful and prudent he may have been." While the above rule as to liability of a public officer of public funds in his hands lost by bank failure has been modified by Section 89-816 of the Code of Georgia of 1933 (Acts 1933, pages 78-84) , a county school superintendent is otherwise bound under his bond faithfully to discharge the duties of his office during the time he continues therein or discharges any of the duties thereof. His bond is given not only to protect the county board of education against his improper and neglectful performance of duties imposed upon him by law, but for the use and benefit of any person who might be injured by any improper act done by him under color of his office, or by the improper performance of the duties imposed upon him by law, due both to the county board of education and to persons having dealings with such board and himself in his official capacity. Citizens Bank of Colquitt v. American Surety Company of New York, supra. Your letter discloses that under the facts of the given case, an amount of public school funds was paid out in excess of the sum of the principal amount borrowed together with interest thereon. It is my opinion that such excess was an illegal expenditure. It is my further opinion that since the county school superintendent is the legal custodian of school funds of the county, his payment of a greater sum than the principal and interest of the amount borrowed would bind the county school superintendent and his surety in the amount of such excess payment. It is my further opinion that not only is the county school superintendent required to faithfully account for all school funds of the county in his hands, but he is also charged with knowledge of what the law requires of him. A resolution of the county board of education approving the use of public school funds of the county for paying the excess amount of the loan would not excuse or relieve him from liability because the county superintendent of schools has no authority under the law to pay out money for a purpose other than the operation of the schools or for a purpose he is not legally authorized to expend public school funds. In such case it is the duty of the members of the county board of education to require the county superintendent of schools to repay into the 139 public school funds of the county any amount which may have been illegally paid out. On failure of the county superintendent of schools to so repay said sums of money they should bring an action on the bond to compel payment thereof. EDUCATION-Governor is not authorized to issue warrants for payment of teachers in one fiscal year from State school funds appropriated for the succeeding fiscal year. March 24, 1939 Hon. M. D. Collins State Superintendent of Schools I have your letter of March 22nd in which you ask an opinion upon the following question: "Will you please advise me whether or not the State can issue warrants in accordance with section 32-929 of the Georgia Code 1933, page 944, and thereby secure available funds, or warrants, with which to pay teachers for the rest of this term, though the warrants are issued against anticipated school funds which are expected to be available after the close of the present fiscal year?" Section 32-929 of the Code of Georgia of 1933 reads as follows: "32-929. Warrants in anticipation of revenue. -For the purpose of anticipating collection of the taxes of any year, the Governor is authorized to draw his warrant at the end of each and every month during any year, in the favor of the State Superintendent of Schools or of the several county superintendents of schools and treasurers of local school systems, in the discretion of the State Board of Education, for such amount or amounts as are then due to the teachers. Said warrants shall be drawn on the funds appropriated by the legislature for any year, and shall not exceed in the aggregate amount the appropriation for the public schools so made for that year. The honor of the State is pledged to the payment thereof. " The above Code section is codified from the Acts of the General Assembly of 1919, page 330. From 1919 until July 1, 1937, the calendar year and the state fiscal year were coterminous, that is, from January 1st through December 31st. Under the Equalizing Educational Opportunities Act approved February 10, 1937 (Ga. L. 1937, pp. 882-892) , section 2 of said Act provides that from and after July 1, 1937, the school year shall begin on the first day of July and end on the thirtieth day of June of each year. An Act of the General Assembly approved January 29, 1937 (Ga. L. 1937, pp. 456, 457) , amended section 89-901 of the Code of Georgia of 1933 so as to change the fiscal year of the state from January 1st through December 31st to July 1st through June 30th. It is evident that while the state fiscal year and the calendar year were the same the provision of section 32-929 of the Code would enable the anticipation of revenues collected in the latter months of the calendar year by the issuance of monthly warrants therein provided so that if funds were not available in the early months of the calendar year for the operation of schools the warrants could be paid from the fiscal year appropriation although revenues for the payment of the same might not be collected until the latter months of said fiscal and calendar year. The change of the state fiscal year which is now from July 1st through June 30th is followed by the appropriation which is now made for the same period, that is, from July 1st through June 30th. 140 The General Appropriations Act of 1937, approved March 30, 1937 (Ga. L. 1937, pp. 54-72) , made an appropriation for the operation of the state government, including the schools, for the two-year period from July 1st, 1937, through June 30th, 1939. Section 27 of said General Appropriations Act reads as follows: "Section 27. In the event that the funds available for paying the fixed sum appropriation herein made should be less than the total sum of appropriations, then such appropriations shall be reduced, pro rata in the amount of such deficiency; provided, however, that the sums appropriated for the principal of and interest on the public debt, and for the judicial and legislative branches of the government shall not be affected by the provisions of this section. "The sums so stricken under the provisions of this section are hereby declared annulled and the sums remaining after the application of the provisions of this section shall be the appropriations for the purposes named, in lieu of the amounts set out in this Act. " The appropriations for the operation of the schools by section 27 of said General Appropriations Act are reduced pro rata in the amount of the deficiency of revenues to the appropriations. Therefore, it follows that warrants cannot be issued by the Governor in favor of the State Superintendent of Schools or the several county superintendents of schools and treasurers of the local school systems in anticipation of the collection of taxes where, as in the existing situation, funds have already been anticipated in full for the payment of school funds equal to the appropriation made by the said General Appropriations Act of 1937, covering the period through June 30, 1939, reduced pro rata in the amount of deficiencies of revenues available to pay such appropriations. It is my opinion that the Governor is not now authorized to draw warrants to pay teachers salaries for the remainder of the seven-months school year of the 1938-39 fiscal and school year ending June 30, 1939, where the anticipated revenues will not fully pay the appropriation for said school year and where school funds for the 1938-39 school year have already been exhausted in the anticipated full amount that the revenues will produce toward the payment of said appropriation. EDUCATION; TUITION-Cannot be required of resident pupils in the public schools. October 3, 1939 Hon. 0. E. Hendley, Superintendent Irwin County High School Mystic, Georgia This will acknowledge yours of September 28, 1939, asking the questions: "Can any or all of the fees listed below be. legally charged and collected in the public schools (grammar and high) of the State? 1. TUition. 2. Entrance 3. Registration 4. Incidental5. Maintenance 6. Coal 7. Library 8. Laboratory. "If any of these are legal, have I or the local board the right to send those refusing to pay, home until such time as their fees are paid or what recourse do we have?" Article 8, Section 1, Paragraph 1 of the Constitution of this State reqUires that any schools provided for by taxation or otherwise "shall be free to all children of the State". Our Supreme Court has many times construed this language, and has uniformly held that no fees or charges of any kind may be imposed as 141 a condition to the entrance of children into schools which are supported by taxation or other public funds. In Irvin v. Gregory, 86 Ga. 605, Chief Justice Blackley said: "The exaction of an incidental fee to be paid by each and every pupil as a condition of admission into the public schools of a town, though constitutional as applied to non-resident pupils, would be unconstitutional if applied to resident pupils also. " In Wilson v. Stanford, 133 Ga. 483, the Supreme Court held that "the payment of a matriculation fee by scholars, as a condition of their admission to" a public school,. or remaining in attendance thereon is unlawful. In Claxton et al v. Stanford, 160 Ga. 752, it was held: "A charge for matriculation can not be imposed as a condition precedent to admission to a public school forming a part of such (system of common schools) general system, of a child living in the territory of a school and otherwise qualified. " See also Brewer et al v. Ray, 149 Ga. 596. In Brinson et al, Trustees v. Jackson et al, 168 Ga. 353, it was held: "A consolidated public school or high school established and maintained in a consolidated school district in part by funds provided by the Act of August 18, 1919 (Acts 1919, page 287) , is a common school of this State, admission to which must be free. The trustees by accepting the benefits of such funds are estopped from denying that this school is subject to the above constitutional (Section 2-6601) of the Code of 1933 provision making the common schools free to the children of the State residing in the district." Answering your inquiry categorically, I am of the opinion that the authorities of your school may not legally assess against any resident of the school district, or against the child of any resident of the school district, any tuition, entrance, registration, incidental, maintenance, coal, library, or laboratory fee, for to allow the charging of such a fee would be to destroy the freedom of access to the schools of many children whose parents might be unable to pay the fee, and would be contrary to the express requirement of the Constitution first above cited. EDUCATION; TUITION-Cannot be assessed under the guise of consumable materials. Honorable A. c. Skelton September 4, 1940 President, Board of Education Hartwell, Georgia I am pleased to acknowledge yours of August 31, 1940, inclosing clippings from three newspapers relating to incidental, supply, laboratory and library fees being charged by various public schools in this State, and requesting my Opinion as to the authority of a school board to charge fees of this nature to supplement the income for the purpose of operating the schools. 142 Both my distinguished predecessor in office and I have rendered several official and unofficial opinions holding that the exaction of fees of this nature from students of public schools, either as a requisite for the entrance of such students into such schools or their continuance therein, for the purpose of supplementing school revenue, is illegal and unconstitutional. These opinions have from time to time been given wide publicity in the press and it is difficult to understand why such practices on the part of some local units of admini- stration is continued. \ Article VIII, Section I, Paragraph I of the Constitution plainly provides: ! "There shall be a thorough system of common schools for the education of children as nearly uniform as practical, the expense 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 I I I I colored races." "Shall be" is a perfect command. "Free" is a word without ambiguity, and is I understood by every school child. Manifestly this provision of the Constitution ' places upon the General Assembly the responsibility of providing the statutory machinery for the establishment and maintenance of a thorough system of common schools in this State. In carrying out this obligation, the General Assembly has seen fit to provide that the expenses of the common schools shall be "provided for by taxation" and not otherwise. There is absolutely no con- stitutional or statutory authority vested in the local units of administration to impose or collect any kind of incidental, matriculation, library, tuition, supply or other fee from students, who are residents of the local school district, in which the school they attend is located, for the purpose of supplementing pub- lic school funds derived from taxation. It may be that the authorities of local units of administration may act as an agent of a student for the purchase of paper, tablets, pencils, pens, ink or material for laboratory work in physics, chemistry, biology or courses in home economics, vocational agriculture, com- merce or manual training, or other such elective courses, and in doing so charge a supply fee of the student availing himself of this arrangement. But even this fee should be on a voluntary basis, and should not be used by the school authorities as a source of profit and income, and should be on a voluntary basis, so that the student, if he desires to purchase these materials for himself may do so. That is to say, the authorities of the school district should not make the payment of a "supply fee" a condition precedent for the entrance of the stu- dent into the school. In commenting upon the article of the constitution first above cited, that great scholar and chief justice, Honorable Logan Bleckley, in the case of Irvin et al v. Gregory et al, 86 Ga. 605, had this to say: "Insofar as municipal public schools perform the functions of common schools, they must be free to all children of the municipality just as the common schools in general are free to all children of the State. This results from the scheme of the Constitution in regard to public schools. It follows that the exaction of an incidental fee to be paid by each and every pupil as a condition of an admission into the public schools of a town, though con- stitutional as applied to non-resident pupils, would be unconstitutional if applied to resident pupils also." To the same effect see Wilson et al v. Stanford et al, 133 Ga. 483; Claxton et al v. Stanford et al, 160 Ga. 752; Brewer et al v. Ray, 149 Ga. 596; Brinson et al Trus- tees v. Jackson et al, 168 Ga. 353; Moore et al v. Brinson, Superintendent, 170 143 Ga. 680; Peak et al v. Board of Education of Cuthbert et al, 177 Ga. 476. In Moore v. Brinson, supra, Justice Hines writing the opinion for the court said: "A charge for matriculation can not be imposed as a condition precedent to the admission of children to a public school forming a part of the general school system of children living in the territory of the school and otherwise qualified. . . A public school which makes a discrimination between children of parents who pay matriculation fees, and the children of parents who do not pay such fees, violates the above provision of the constitution that the public schools shall be free to all children of this State. " Thus it will be observed that in a long line of decisions our Supreme Court has upheld both the letter and the spirit of the constitutional provision which requires that the public schools of this State "shall be free to all children of the State" and this mandatory language of the Constitution should be observed by all county boards of education, local school district trustees, authorities of independent school districts and other school officials whose sworn duty it is to uphold and defend the Constitution of this State. If the revenue from State, county and local taxes is not sufficient to support and maintain the schools it is unfortunate; but every school official of this State is enjoined by the Constitution from exacting additional tribute under the name or guise of fees or otherwise from the citizen or his children for the privilege of attending the common schools so long as the school house doors are open, and the school authorities cannot impose any fee upon those attending the schools of their district for the purpose of obtaining an additional revenue for the support and maintenance of the schools, even though the failure to obtain additional revenue from some source may mean the closing of the school, or the shortening of its terms. Of course you realize that what is said in this letter is purely unofficial, as I have no authority to render an official opinion upon this subject except upon the written request of the Governor or the State Superintendent of Schools. However, being based upon the plain language of the Constitution and several unanimous decisions of our Supreme Court construing the fundamental law of our State, all citizens and officials should feel bound to observe that which our Constitution proclaims and our courts have held to be sacred. I am glad to note the statement in your letter that your school has eliminated fees of every description. I sincerely trust that every common school in the State which is now illegally charging such fees will follow the splendid example set by your County Board. I am returning herewith the clippings in your letter. EDUCATION; TUITION-May be charged non-resident pupils although parents may own property taxed in the school district. October 27, 1939 Honorable D. H. Standard Superintendent of Schools Cordele, Georgia This will acknowledge yours of the 23d instant requesting an opinion as to the authority of the Board of Education of the Cordele Public Schools, an independent system which receives no support from the county and which receives no funds from the State on account of the attendance of pupils residing outside of the limits of the independent school district, to charge tuition of pupils attending the public schools of Cordele, where the parents of such children do not reside within the limits of the independent school district but either own 144 property or conduct businesses in said district and pay city license fees and taxes to the city. The question submitted is one which properly addresses itself to the City Attorney and the County Attorney. This being true, what is said in this letter is purely unofficial and binding upon no one. While I am not familiar with the act creating the independent school district of Cordele, it is generally true that most of these acts vest the Boards of Education with power to assess and collect tuition from non-resident pupils attending the schools of the district. I do not think that the ownership of property by the parent of the child attending the school and the payment of taxes thereon to the city would alter the right of the Board of Education to charge tuition, so long as the parent of the child remained a nonresident of the district. In the case of Taylor v. Matthews, 10 Ga. App. 852, 860, Justice Russell said: "It is within the power of the trustees of any school district in this State to provide means by which all children of school age in every school district may receive the benefit of the school fund belonging to that district. And to that end the trustees may either contract with the trustees of an adjoining school district for the payment of the tuition of nonresident pupils to themselves, or may agree to pay to the trustees of an adjoining district, whether in the same or in an adjoining county, the tuition of resident pupils when they determine that these pupils can more advantageously or conveniently attend the school of the adjoining district than the school of the district in which they reside. " See also Article 8, Section 4, Paragraph 1 (Code Section 2-6901) of the Constitution. This paragraph of the Constitution last cited provides in part: "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. " Since the primary responsibility for the education of children of school age is upon the school district authorities of the district in which the parents of such children reside (not where they have their place of business or taxable property), any question arising with reference to the education of a child whose parents reside in one district but who attends a school in another district should be worked out on the basis of a contract between the governing authorities of the two school districts involved. For your further information I am inclosing copy of letter under date of September 1, 1939, to Honorable M. D. Collins covering a similar situation. You will see that the same conclusion was reached in said case. EDUCATION; TUITION-Generally, local school districts have the authority to charge tuition for non-resident pupils. August 20, 1940 Dr. M. D. Collins State Superintendent of Schools Your letter of August 19 requests an opinion as to whether or not the trustees of a local school tax district have the legal right to fix the rate of tuition for non-resident pupils. Section 32-937 of the 1933 Georgia Code in part provides: 145 "Admission to all common schools shall be gratuitous to all children between the ages of six and eighteen years residing in the subdistricts in which the schools are located. " (Emphasis supplied. ) Section 32-1113 of the 1933 Georgia Code in part provides: "They (trustees of local tax districts) shall have the right to fix the rate of tuition for non-resident pupils ... " In the case of Taylor et al., trustees, v. Matthews et al., 10 Ga. App. 852-861, at page 860, the Court, speaking through Justice Russell, said: "The power of fixing the rate of tuition for pupils not residing in the district naturally implies the power of the trustees of the district in which the non-resident pupils reside to agree, upon their part, to pay this tuition; because each child of school age (with some exceptions) is equally entitled to receive the benefit of the common-school fund apportioned by the State. It would be mockery to hold that the law, while devolving upon trustees of the common schools the solemn and responsible duty of providing means for the education of children of school age within their district, denies them the power to perform this duty. It is within the power of trustees of any school district in this State to provide means by which all children of school age in every school district may receive the benefit of the school fund belonging to that district. And to that end the trustees may either contract with the trustees of an adjoining school district for the payment of the tuition of non-resident pupils to themselves, or may agree to pay to the trustees of an adjoining school district, whether in the same or in an adjoining county, the tuition of resident pupils when they determine that these pupils can more advantageously or conveniently attend the school of the adjoining district than the school of the district in which they reside. " In view of the above it is my opinion that trustees of a local school tax district generally have the right to fix the rate of tuition for non-resident pupils. In answering the above inquiry I have not attempted to deal with any controversy between the county board of education and the trustees of a local tax school district concerning the admission of high school pupils in one district from another district. The proper answer to such a question as that last above mentioned would depend on the particular facts in each case. Such a question would be a local one, to be worked out by the local authorities involved, and I do not think that it is incumbent upon the State Superintendent of Schools or the Department of Law to decide such an issue. EDUCATION; TUITION-Cannot be required of n0n-resident pupils if the school receives State funds by reason of their attendance. October 3, 1939 Dr. L. F. Bugg Carnegie, Georgia This will acknowledge yours of the 27th instant with further reference to the authority of the Board of Education of the Cuthbert School to charge an entrance fee of children attending the Cuthbert schools and who reside outside of the City limits of Cuthbert. Your letter states that the County Commissioners of Randolph County levy a county-wide school tax. If the schools of Cuthbert are operated as an independent school district, the authorities of such schools may charge an entrance fee of non-residents. But if the schools of Cuthbert have become merged with the county school 146 system and are operated under the control and supervision of the County Board of Education, and if the county-wide school tax is levied and collected within the City limits of Cuthbert just the same as it is throughout the other territory of the county, then the school authorities in charge of the schools of Cuthbert are without power and authority to charge an entrance fee, a matriculation fee, or tuition, of any child residing in the County of Randolph who attends the schools in Cuthbert. In the case of Peak v. Board of Education, 177 Ga. 476, 480, Justice Bell, writing the opinion for the Supreme Court, said: "Since it is the declared policy of the law to provide a system of free schools for the children of this State, the more reasonable construction is that a matriculation fee may be charged against non-residents only where there is no overlapping of public funds; and that where a city receives from a county board of education State funds as tuition for non-resident children, who by reason of their attendance are included in the school census of the city, such tuition should be received by the city board in lieu of the right to assess a matriculation fee. This is to look upon the school laws as a logical and harmonious body, and to apply an interpretation which is most evidently in accord with the will of the people and of the legislature, as expressed in the constitution and laws respectively, to the effect that the common schools shall be free to all the children. The present school laws do not contemplate that the entrance of children into the public schools shall be partly free and partly on paid admission. Otherwise, it might result that while the State had provided a substantial sum for their instruction, many children would still be denied admission because their parents are unable to pay the remainder. A school conducted on such a mixed and uncertain basis could hardly be called a free school, and it is not presumed that the State would enter into such a haphazard partnership with patrons." The county boards of education and the county commissioners have no authority to levy county-wide school taxes in that portion of a county embraced with the territorial limits of an independent school district. See Smith v. Board of Education of Washington County, 153 Ga. 758; Glenn v. Trion Company, 157 Ga. 639; Almond v. Board of Education of Laurens County, 161 Ga. 911. So in reality your question depends upon whether the schools of the City of Cuthbert are being operated as an independent school system, or as a part of the county system. If the county-wide tax levy includes the territory embraced within the City limits of Cuthbert, then no entrance fee can be charged of children attending the Cuthbert schools while residing outside the City of Cuthbert. If, on the other hand, the county-wide school tax is not levied and collected within the City of Cuthbert and the city schools are being operated as an independent system and have never become merged with the city system, then the City Board of Education would have the authority to assess against non-residents of the City an entrance fee and to require the payment of such fee as a condition precedent to attendance upon the city schools. Of course, you realize that what is said in this letter is purely unofficial and is binding neither upon the county commissioners, the county board of education or the city board of education. I have merely tried to give you my understanding of what the law is with reference to situations of this kind and what the Supreme Court of our State has said that the law is. 147 EDUCATION-Whether marriage deprives student of the right to attend school has never been decided by the appellate courts of this State. March 30, 1939 Dr. M. D. Collins State Superintendent of Schools I have your Jetter of March 27th to which you attach a letter from Hon. R. A. Stallings, County School Superintendent, Nashville, Georgia. The question is asked as to whether the county board of education would have authority to promulgate a regulation requiring that students should discontinue their school work upon marriage. The question is one of local school administration. The Attorney General is not empowered to render an official opinion upon the question asked. As a matter of information, your attention is directed to Article 7, Section 1, Paragraph 1 of the Constitution of Georgia, codified as Section 2-6601 of the Georgia Code of 1933 which reads as follows: "There shall be a thorough system of common schools for the education of children as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races. " Whether the marriage of a student would deprive such student of the benefits of the Constitutional provision above quoted does not seem to have been passed on by the Appellate Courts of this State. EDUCATION; TUITION-May not be required of non-resident pupils if attendance is by virtue of a contract between local school authorities. December 14, 1939 Honorable Clinton Moon Superintendent of Schools Muscogee County Columbus, Georgia I am pleased to acknowledge yours of the 12th instant outlining your problems in connection with the attendance of children residing outside the city limits of Columbus in the high school governed by the City Board of Education. Under the authority of Article 8, Section 4, Paragraph 1 of the Constitution of this State: "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. " The terms and conditions of such contracts are matters which are confided by law to the contracting parties. Under the law, an independent school system has the right to assess tuition against non-resident pupils attending schools therein. The fact that a nonresident parent of a non-resident pupil owns property in the boundaries of the independent school system upon which he pays taxes would not alter the right of the independent school system to charge such tuition. If, on the contrary, the independent school system has a contract with the County Board of Education under which the non-resident children attending schools in the independent system are counted in the average daily attendance 148 of the schools of the independent school system and the independent school system receives State school funds, or is supplied teachers on the basis of such average daily attendance of non-resident pupils, the independent system would be precluded thereby from assessing a tuition fee. I trust that you realize that this opinion is purely unofficial and is binding neither upon the County Board of Education of Muscogee County, nor upon you, nor upon the Board of Education of the independent school system for the matter properly addresses itself for official advice to your County Attorney and the City Attorney of Columbus as to the rights of the respective units of administration. EDUCATION-White teachers cannot teach negro pupils nor negro teachers white pupils. March 13, 1939 Hon. M. E. Thompson, Director Teacher Training and Certification State Department of Education This will acknowledge your inquiry of March 10, 1939. You desire to know if it is legal for a white teacher to teach negroes in the public schools of the State of Georgia. Paragraph 1 of Section 1 of Article 8 of the Constitution provides, in part, as follows: "The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races." Under this provision of the Constitution, it Is clear that the white and colored races, whether pupils or teachers, are meant to be segregated in separate schools. Accordingly, it is my opinion, that under the law, white and colored children can not be co-mingled in any public school of this State, nor can negro teachers teach white pupils, nor can white teachers teach negro pupils. EDUCATION-Entrance of children who become 6 years of age after December 1st. January 24, 1940 Honorable M. D. Collins State Superintendent of Schools I am pleased to acknowledge yours of the 12th instant inclosing letter from Honorable M. L. Van Winkle Jr., Superintendent of Schools at Madison, Georgia, who requests information upon the following questions as they relate to the power of the Board of Education of the City of Madison: 1. A child who was 6 years old on December 3, 1939, attempts to enter school for the first time on January 5, 1940. Regulation of local Board of Education permits entrance in September of child 6 years old by December 1 and requires others to wait until following fall. Must child be admitted in January? Answer. You will find from your files, that my distinguished predecessor Honorable M. J. Yeomans, rendered you at least two opinions upon almost an identical question, to wit: On October 31, 1934 (see Opinions of the Attorney General of Georgia, January 1, 1933 to December 31, 1934, page 126; Opinions of the Attorney General of Georgia from January 1, 1935 to December 31, 1936, 149 page 78) . Please refer to these opinions. The Madison school system is operated under the Act approved December 11, 1894 (Ga. L. 1894, p. 257) , as amended by the Act of 1896 (Ga. L. 1896, p. 306), and under Section 5 of said Acts the Board of Education of the City of Madison is authorized to "adopt such rules and regulations as may be necessary for the successful conduct of said schools". Section 6 of said Act provides in part that "all children between the ages of 6 and 18 years of age, whose parents, guardians or natural protectors, bona fide residents within the corporate limits of said city, shall be entitled to the benefit of said schools". Accordingly, I am of the opinion that said Board of Education has the authority to adopt any reasonable rule or regulation necessary for the successful conduct of said school. What is or is not a reasonable rule or regulation with respect to the attendance of school children who are within school age would depend upon the circumstances of each case. See Moline Board of Education v. Bolton, 85 Ill A. 92, People v. McFall, 26 Ill. A. 319. In the Bolton case, supra, it was held that a rule or regulation was unreasonable which prohibited children who had just arrived at school age from entering the schools at any time except during the first month of the fall or spring terms. On the other hand, it was held in the McFall case, supra, that a rule or regulation excluding children under the age of 7 years unless they entered at the beginning of the fall term, or within four weeks thereafter, or were qualified to enter classes existing at the time of their entry was reasonable and proper. Without knowing the facts or particular circumstances of any given case, and without definitely deciding the point, it would seem that the rule or regulation of the Board of Education of Madison which permits a child who will attain school age by December 1 to enter at the beginning of the fall term but prohibits such a child entering later in the term, is reasonable. Certainly it would seem to be reasonable if the entrance of such a child into a class which had been studying a given course for some four months would have the effect of disrupting the normal course of the class as a whole or slowing down its progress. On the other hand, if the child had been attending school in a class of the same grade at some other place and was qualified to carry on the course with equal ease and efficiency as other children in the class the rule prohibiting his entrance would seem to be unreasonable. As stated above, the definite answer to the question would depend upon the circumstances of each case, and if as applied to the particular circumstances of any given case the rule is unreasonable it would be unenforceable. 2. Regulation of local Board of Education fixes $2. 50 per semester library and laboratory fees from all high school students. Pupil refuses to pay said fees. May he be refused entrance to common school? Answer. I am inclosing you herewith mimeographed copy of an opinion under date of August 28, 1937, which fully covers the subject of the right of a public or common school to charge tuition, matriculation and other fees. The provision of the Constitution requiring that such schools shall be free to all children of the State within school age has not been amended or modified since this opinion was written. I am of the very definite opinion that the child referred to could not legally be refused entrance to the common school on account of any failure to pay the library and laboratory fees imposed by the Board of Education of Madison. 150 EDUCATION-salaries of County Farm and Demonstration Agents may be paid in part from educational funds. August 30, 1939 Board of Commissioners of Roads and Revenues Wilkes County Washington, Georgia This will acknowledge receipt of your kind letter of August 28th. I am glad to be of service to you whenever it is within my power to do so. The question as to whether it is now illegal for a County Board of Education to participate in paying the salaries of County Agents has been ruled on in two recent opinions by the Law Department. On April 8, 1938, my predecessor in office, the late Honorable M. J. Yeomans, gave a ruling to Honorable M. D. Collins, State Superintendent of Schools, in response to an inquiry as to whether it was legal for members of the County Board of Education on account of the recent constitutional amendment to pay the salaries of Home Demonstration Agents and County Farm Agents. I am inclosing herewith for your benefit a copy of Judge Yeomans' ruling on the question. On August 29, 1939, I rendered an opinion to Honorable Zach Arnold, State Auditor, which dealt in part with the question which you present and in which I arrived at the same conclusion that Judge Yeomans reached in the previous ruling. I do not believe that it is illegal for a County Board of Education to participate in paying the salaries of County Farm Agents and Home Demonstration Agents from funds levied for educational purposes. EDUCATION; EQUALIZATION FUNDS-How distributed. December 16, 1940 Hon. J. B. Bowen Superintendent Villa Rica Public Schools Villa Rica, Georgia I have your letter of December 11, 1940, in which you ask that I give you a ruling on the distribution of the equalization fund by county school superintendents. You state that you understand a portion of the equalization fund is distributable to the local boards for loss of revenue due to homestead exemption. You desire to know if it is compulsory that a portion of this fund be distributed to your county board and if so what step is necessary to secure your pro rata share. The administration of school affairs, generally, in the county is in the hands of the county board of education, together with the county superintendent of schools. Section 32-948 of the 1933 Georgia Code reads as follows: "In addition to the regular appropriation for the support of the public schools, the General Assembly shall provide an equalization fund, which shall be disbursed by the State Board of Education for the purpose of more nearly equalizing the educational opportunities of the children of the several counties. The State Board of Education, in its distribution of said equalization fund to county boards of education, shall take into consideration the possible returns from taxable values for school purposes, the extent of which local tax aid has been utilized, the educational needs, and the local inequalities existing in the several counties. No county or independent 151 system shall share in the equalization fund for any year unless it levies at least five mills for a local tax for its public schools for that year. " While the State Board of Education takes into consideration the local needs, one of which may be loss in revenue due to homestead exemption, the equalization fund is disbursed by the State Board of Education to the county board of education. When the fund reaches the county board of education the administration and disbursement of the fund within the county is a matter over which the county board of education may have discretion. This office has constantly avoided interfering with local units such as the county board of education in the administration of its affairs, in as much as the duties and powers of the Attorney General do not permit him to interfere with such local administrative matters. I suggest that you confer with the County School Superintendent and County Board of Education to see if you can reach some satisfactory adjustment of your local complaint. EDUCATION; EQUALIZATION FUNDS-Must be first applied to operate the schools for the fiscal year in which appropriated. March 23, 1939 Mrs. Joe Matthews, Superintendent Paulding County Schools Dallas, Georgia I have your letter of March 21st. You state that you wish to operate your schools for seven months and that you have paid cash for six months of that time on accumulated school funds and that you desire to obtain a loan with the proceeds of which you expect to pay teachers' salaries for the seventh month. You desire to know whether you can use any equalization funds that may come to your county board of education after July 1st to repay the loan, the proceeds of which loan might be used in paying for the seventh month of the 1938-39 term, occurring between January 1, 1939, and June 30, 1939. The question you ask is not one upon which the Attorney General is authorized to render an official opinion. Such a question should be determined by you on advice of your county attorney or some local attorney. While I cannot render an official opinion, in order to be helpful I am giving you my personal Views upon the question with the understanding that it is not official and is not binding on anyone. Section 32-921 of the Georgia Code of 1933 as amended by Georgia Laws, 1937, pages 880-881, reads as follows: "The County boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made. " The school year now runs from July 1st through June 30th. (Ga. Laws 1937, Page 882). The equalization fund for the support of the public schools is distributed separately in each school year. Such equalization school funds as might come to your county July 1st and after are for the primary purpose of supporting the schools for and during the school year in which such equalization funds are paid. The loan obtained by the county board of education for enabling the 152 schools to operate for the seventh month of the 1938-39 school year ending June 30, 1939 cannot be repaid from state equalization funds received by your county where such equalization funds are sent to your county for the operation of the schools for a different school year, unless there should be a surplus of such funds after the schools were operated for the school year in which said equalization funds are paid over. EDUCATION; COUNTY SCHOOL SUPERINTENDENTS-Records follow the office and remain of file for successors. November 15, 1939 Hon. Zach Arnold State Auditor I have your letter of November 13th asking if the records appertaining to the office of a county school superintendent become the private personal property of such superintendent at the expiration of his term of office. You also ask if such records can be treated as the private personal property of the county school superintendent after they have been audited by your Department. Under Sections 89-601 through 89-607 of the 1933 Code all books, papers and other property appertaining to any public office must be immediately delivered by the incumbent to his qualified successor; and in addition to the remedies and penalties provided in said Code sections referred to, Section 89-9905 of the 1933 Code provides that "if any officer, after the expiration of his term, shall wilfully and unlawfully withhold or detain from his successor the records, papers, documents, books, or other writings belonging to his office, or mutilate, destroy, take away, or otherwise prevent the complete possession by his successor of said records, documents, papers, books, or other writings, he shall be guilty of a misdemeanor." In view of the foregoing Code sections, it is my opinion that records appertaining to the office of a county school superintendent can not at any time be treated as the private personal property of the superintendent. Such records follow the office and should remain on permanent file therein. EDUCATION; COUNTY SCHOOL SUPERINTENDENTS-Educational requirements. March 16, 1939 Hon. M. D. Collins State Superintendent of Schools I have your letter of March 11th. You ask whether or not the State Board of Education can accept and file a certificate submitted by a person who seeks to show his qualification and eligibility to the office of county superintendent of schools, where such certificate shows that said person has completed two years' work in an accredited university of this state and said person also holds a diploma and a degree in law from said university. Qualifications of county superintendents of schools are set forth in Section 32-1004 of the Georgia Code of 1933. This Section reads as follows: "Before any person shall be qualified or eligible to the office of county superintendent of schools, he shall have had at least three years' practical experience in teaching, hold a first-grade high school license, or in lieu thereof shall have a diploma from a literary college or normal school, or shall have had five years' experience in the actual supervision of schools, or stand 153 an approved examination before the State Board of Education as to his qualifications, be a person of good moral character, never convicted of any crime involving moral turpitude. The county superintendent of schools shall perform all the clerical duties which were formerly required of the county school commissioner. Before being eligible to qualify for election, candidates for the position must file with the State Board of Education a certificate showing at least one of the above qualifications. This certificate must be signed by the president of the county board of education. " Among the alternative qualifications set forth in the above quoted Code Section, we find the following: "or in lieu thereof shall have a diploma from a literary college or normal school. " A university is composed of colleges within its system and a person completing the work in any of the colleges of the system may obtain a diploma from the university. While in the present case the candidate may not under a strict construction have a degree from "a literary college or normal school" his diploma from the law school is a diploma from the university. It can be pointed out that two years' work in the Liberal Arts College of the university followed by a diploma in law from the university may reasonably be construed equivalent to a diploma from "a literary college or normal school. " In my opinion the section of the Code relating to qualifications for county superintendents of schools should be given a liberal construction where such construction will not nullify the intent of the Legislature in prescribing such qualification. It is my opinion that a certificate filed by a person seeking to qualify or be eligible to the office of county superintendent of schools, which shows that the applicant has completed two years' work in an accredited university of this state and also has a diploma in law from said university, may be accepted and filed by the State Board of Education. I must point out that while the State Board of Education can and should thus liberally construe the said statute and permit the filing of the certificate, it is nevertheless possible for a candidate having such qualifications to have his qualifications and eligibility attacked by a proceeding in the courts of this state. If such legal attack is made it would then be up to the courts to decide whether or not he is qualified or eligible. EDUCATION; COUNTY SCHOOL SUPERINTENDENTS-Office at the courthouse. April 13, 1939 Hon. R. L. Bagley Ordinary, Forsyth County Cumming, Georgia Your letter of April 5, 1939, is acknowledged. I regret very much that I was not in the office when you called, as I would have been delighted to see you and talk with you. As to the county commissioners being Tequired to furnish county school superintendents office space and storage room for school books, etc., I beg to advise that the only provision that I have been able to find is Code Section 32-1012 of the Code of Georgia of 1933, which reads as follows: "The county authorities of the different counties shall furnish the county superintendent of schools thereof an office in the courthouse, provided there is sufficient room in said courthouse after furnishing the county officers with offices as now provided by law. " 154 I do not think that the County Commissioners could refuse to furnish the County School Superintendents office room, etc., merely because their business and tax are taken to be independent of the county commissioners. So, if there is room available after the other county officers have been furnished offices, it would be incumbent on the commissioners to provide an office in the courthouse for the use of the county school superintendent. EDUCATION; LOCAL SCHOOL DISTRICTS-Number of trustees. June 10, 1939 Honorable M. D. Collins State Superintendent of Schools This will acknowledge your letter of June 9 concerning the inqUiry from Honorable N. P. Malcolm, Superintendent, Seminole County Schools, in which he desires my opinion as to the number of trustees that a school district may have which does not contain an incorporated town within its boundaries. Section 32-1104 of the Georgia Code of 1933 provides for three trustees for each school district in the county. The said section, however, provides that in districts containing incorporated towns there may be five trustees. Since the district Mr. Malcolm refers to does not have therein an incorporated town there can only be three de jure trustees under the law. Of course, I am powerless to change an act of the General Assembly. I might add, however, that no matter how many people assume to act as school trustees, if they discharge the duties as trustees they would be de facto officers. Regretting that I cannot place any construction on the law other than the construction that necessarily follows from the plain purport of the said code section and with best personal regards, I am EDUCATION; LOCAL SCHOOL DISTRICTS-Trustees are elected, not appointed. June 1, 1939 Dr. M. D. Collins State Superintendent of Schools This will acknowledge yours of May 26, 1939, requesting my opinion upon the questions asked by Honorable J. D. Roan, Pike County Superintendent of Schools, in his letter to you under date of May 24, 1939, said letter being inclosed. Mr. Roan desires to know whether the County Superintendent of Schools, with the consent and approval of the County Board of Education, may appoint a trustee of a local school district to fill the vacancy of a trustee who has resigned, the appointee to fill the unexpired term of the resigning trustee. The powers of public officers are prescribed by law (Code Section 89-903) and an officer has no power which is not either expressly conferred upon him by law or which, by necessary implication, is given to him as an incident to the performance of the duties expressly conferred. With these principles in mind, it is necessary only to look to the statutes prescribing the powers and duties of the county superintendents of schools in order to determine whether the appointment of a trustee by said superintendent to fill a vacancy is included within his powers. Section 32-1009 of the Code prescribes the powers and duties of the county superintendents of schools, and among these powers is not included the power to appoint trustees to fill vacancies. Nor is such power given to the superintendent when acting with the consent and approval of the county board of education. 155 Section 32-1104 of the Code provides the manner of electing trustees. There is not express provision made for the filling of vacancies, either by appointment or by election. In the case of Edmondson v. Holt, 176 Ga. 907 our Supreme Court in construing the law with reference to the election of trustees and their terms of office held that a mandamus will lie against a county board of education to compel them to call an election "to fill vacancies created by the expiration of terms of office of trustees who have been duly elected and qualified. " It occurs to me that this decision is also applicable in the case of a vacancy caused by the resignation of a trustee, and that citizens of the district would be entitled to a mandamus to require an election to be called to fill said vacancies. I must point out, however, that our Supreme Court has also held that trustees not elected by the voters of the district but recommended by mass meeting of citizens are good de facto trustees whose actions cannot be collaterally attack. Stephens v. School District #3, Habersham County, 154 Ga. 275. See also Hardrick v. The State, 53 Ga. App. 299. EDUCATION; LOCAL SCHOOL DISTRICTS-Trustee not necessarily a qualified voter. April 3, 1939 Hon. M. D. Collins State Superintendent of Schools I have your letter of March 31, 1939, inclosing a letter addressed to you dated March 27, 1939, from Honorable Casey Thigpen of Gibson, Georgia, in which he asks if a person is legally qualified to hold the position of school trustee in the event he is not a qualified voter. Section 32-1104 of the 1933 Code provides in part as follows: "The trustees shall be intelligent citizens of good moral character who are known to be earnest supporters of public education, and they shall serve, one for three years, one for two years, and one for one year, as the county board of education may determine. " (Emphasis supplied.) In the case of Ramsey v. Mingledorff, 181 Ga. 803 at 805 (2) , the Court held: "There was no question as to the eligibility of the plaintiff to serve as a school trustee. 'If intelligent citizens of good moral character, who are known to be earnest supporters of public education, are duly elected trustees of a school district, the county board of education is not clothed with absolute discretion to refuse to approve their election and to commission them, said board having power to refuse to confirm the election of such trustees only when the persons elected are unqualified for the work; that is, where they lack the qualifications prescribed for such trustees under this Section.' Bryant v. Board of Education, 156 Ga. 688 (2, b) (119 S. E. 601)." In view of the above quoted portion of Section 32-1104 of the 1933 Code and of the Court's decision in the case of Ramsey v. Mingledorff, supra, it is my opinion that the only qualification required of a school trustee is that he be an intelligent citizen of good moral character who is known to be an earnest supPorter of public education. It is not necessary, therefore, that he also be a quali- 156 tied voter. The fact that he may or may not be a duly qualified voter is immaterial. I am returning herewith the letter which Mr. Thigpen wrote you under date of March 27th. EDUCATION; LOCAL SCHOOL DISTRICTS-Eligibility of Federal Seed Loan Adtilinistrator as trustee. September 5, 1940 Reverentl It.' 'A. 'McNeil Tignall, Georgia I am pleased to acknowledge yours of the 3d instant requesting information as to whetl\ed1. man, holding the position of Seed Loan Administrator, receiVing pay from,the Feaeral Government, is eligible to serve as trustee, elected by popular vote of a consolidated school district. Your inquiry involves a question of a purely local nature in which the State has no interest, and I am not authorized to render you an official opinion upon the subject. I am glad, however, to give you the benefit of my personal views, as based upon the statutes of this State, which are binding upon no one. Section 89-101 (4) of the Code of this State provides in part: "The following persons are held and deemed ineligible to hold any civil office . .'' ; ':ply Persons holding any office of profit or trust under the Gov- ernment of the United States (other than that of postmaster and officers of the reserve corps of the United States army, navy or marine corps), or either of the several states, or of any foreign state." (Emphasis supplied.) If the position of Seed Loan Administrator held by the person referred to in your letter is ali 11office" as distinguished from a mere "employment, " then the statute quoted above woUld disqualify said person to serve as trustee of the consolidated school district. I am not familiar with the statute creating the position of Seed Loan Administrator and I cannot, therefore, advise you whether this position is considered, under the Federal statutes an office or employmimt. As to this feature of your inqUiry I woUld suggest that you write to the Attorney General of the United States, Honorable Robert H. Jackson. EDUCATION; LOCAL SCHOOL DISTRICTS-Qualification of voters in an election for trustee. Who serves as trustee when an election is called and no votes cast. April 13, 1939 Dr. M. D. Collins State Superintendent of Schools I have your letter of April 6th to which you attach a letter addressed to you from Honorable A. N. Swain, Superintendent of Floyd County Schools, Rome, Georgia, under date of April 5, 1939. The question is raised in Mr. Swain's letter as to the validity of commissions which have been issued by the County Board of Education of Floyd County to certain trustees of a local school district. It appears from Mr. Swain's letter that the County Board of Education duly advertised for election of trustees of a local school district, but that at the time and place fixed for holding the election no votes were cast for any trustee. It further appears that under these circumstances at a regular meeting of the Board of Education of Floyd County, 157 a resolution was passed by said board ordering the trustees who had previously been serving to be re-commissioned for another term. Mr. Swain's letter requests an opinion on the question, stating that at an early date a bond election was coming up in one of the school districts and the validity of the trustees might be made an issue. Such questions as are presented by Mr. Swain's letter relate to alocal matter which the Attorney General is not empowered under the law to render an official opinion. However, in order to be helpful, and with the understanding that what is said hereinafter is not to be considered an official opinion or binding on anyone, I point out below some provisions of the law and some decisions of the courts of this State which may assist the local authorities or the county attorney, or such attorney as the local authorities may desire to consult in determining the questions. Section 32-1104 of the Code of Georgia of 1933 provides how trustees of local school districts shall be elected and commissioned. Among the provisions of this Section are the following: "The election shall be held at a time and place and in a manner prescribed by the county board of education. The trustees shall be intelligent citizens of good moral character who are known to be earnest supporters of public education, and they shall serve, one for three years, one for two years, and one for one year, as the county board of education may determine. In districts containing incorporated towns there may be five trustees, one of whom shall be elected for one year, two for two years, and two for three years. The notice of their election shall be filed by the election managers with the county superintendent of schools, who shall submit the same to the county board of education for their approval. After the local board of trustees have been approved and properly commissioned by the county board of education, it shall meet immediately and organize by electing one of the members president, and one secretary and treasurer. " In the case of Morris et al. v. Smith, tax-collector, et al., 153 Ga. page 438 (3), it was held: "The board of education performing the duties thereof for the district are at least de facto trustees, and their official actions are valid as such, and cannot be attacked collaterally. Brown v. Flake, 102 Ga. 528 (29 S. E. 267) ; DeLoach v. Newton, 134 Ga. 739 (3a), 742 (68 S. E. 708, 20 Ann. Cas. 342) ; Tucker v. Roberts, 151 Ga. 753 (108 S. E. 222). In the case of Stephens et al. v. School District No. 3, Habersham County, 154 Ga. 275, 277, 278, it was held: "The trustees of this district were not elected by the voters of this district, but seem to have been recommended for these offices by a mass meeting of fifteen or twenty citizens. Upon this recommendation the county board of education commissioned the persons so selected as trustees of this district; and they have acted as such ever since they got their commissions. The notice, calling the election to determine whether bonds should be issued for building and equipping a schoolhouse in this district, was signed by two of these trustees, and approved by the ordinary of the county and the county board of education. The intervenors objected to the validation of these bonds on the ground, that, as these trustees were not elected by the citizens of the district as required by law (Code of School Laws, sec. 120 Ga. Laws 1919, p. 335, Civil Code of 1910, Section 1533), their appointment, the calling of said election and the election itself were null and void. Held, that such trustees were de facto trustees, and their action 158 as such in calling this election cannot be collaterally attacked as void on account of the manner of their selection and appointment. DeLoach v. Newton, 134 Ga. 739 (68 S. E. 708, 20 Ann. Cas. 342) ; Morris v. Smith, 153 Ga. 438 (112 S. E. 468) . " It is my personal view, and not an official opinion, that if the trustees were once elected in the manner provided by law and continue to hold over without other trustees being elected to replace them, such hold over trustees are at least hold over or de facto trustees and their official actions are valid as such. Since the commissions have already been issued to the trustees, it is not important or proper that I now give my views as to whether or not the county board of education was lawfully authorized to issue said commissions under the circumstances related. It would be more desirable to have had a regular election in which votes were cast and notice of election filed by election managers, but if the trustees are actually serving as trustees of the local school district either as hold over trustees or as de facto trustees, I can only point out the above decisions of the courts relating to questions where the validity of bond issues have been attacked upon said grounds. EDUCATION; LOCAL SCHOOL DISTRICTS-Secretary-treasurer not entitled to commissions on bond taxes. March 30, 1939 Ron. Zach Arnold State Auditor In Re: Compensation of Local School District Secretary and Treasurer. This will acknowledge your request for an opinion as to whether a secretary and treasurer of a local school district is entitled to a commission upon the amount of local tax collected for the purpose of taking care of and paying the principal and interest on schoolhouse bonds in the district, where the Board of Trustees, acting under the authority of Section 32-1119 of the Code, by order or resolution, authorized the payment to the secretary and treasurer of such a commission "on the amount of local tax collected. " Section 32-1119 of the Code provides in part: "The Board of Trustees of a local school district may pay the secretary and treasurer a commission on the amount of local tax collected not to exceed two and one-half per cent, but there shall be no commission allowed on the amount received from the State. " Section 32-1108 of the Code provides for an election in local school districts upon the question of local school tax. I am of the opinion that the commission authorized to be paid to the secretary and treasurer of a local school, district, upon the vote or resolution of the board of trustees, is restricted to the commission collected on local taxes collected in the district pursuant to the levy authorized under an election held according to the provisions of Section 32-1108, and does not apply to any taxes collected for the payment of principal and interest on school district bonds. I am forced to this conclusion by the language of Section 32-1402 of the Code, which specifically provides how the proceeds of bonds voted for the purpose of building a schoolhouse shall be held and used, said Section containing the following provision: "Should bonds be issued and sold, the proceeds shall be turned over to the board of trustees in trust for the purpose of erecting a school building 159 or buildings or purchasing buildings already erected which said board of trustees may deem suitable-no compensation shall be paid to said board of trustees or any member thereof for service. 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 commissiqners 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 thereof and the interest thereon; this to be in addition to the general tax for the maintenance of the schools of said territory." (Emphasis supplied.) In this connection, it should be noted that the secretary and treasurer of a local school district is a member of the board of trustees. (Code Section 321104) . Being a member of the board of trustees, the above quoted statute precludes the secretary and treasurer from receiving any compensation for services rendered in connection with the collection of taxes for the payment of schoolhouse bonds and the interest thereon. While it does not appear that our courts have directly passed upon this question, the Court of Appeals in the case of Matthews v. Rowell, 49 Ga. App. 673, held that residents of a local school district and members of the board of education of DeKalb County could maintain a suit upon the bond of the secretary and treasurer of a local school district to recover certain sums appropriated by said officer to his own use as salary and commissions claimed to be due him as treasurer, out of taxes which had come into his possession as secretary and treasurer which had been levied for the purpose of payment of the principal and interest upon the issue of school bonds of the district. Although it appears in said case that there was a total absence of any resolution or action by the board of trustees authorizing the payment of the commissions on taxes collected to retire bonds, nevertheless, I am of the opinion that the board of trustees is without authority, acting under Section 32-1119 of the Code, to authorize by resolution or order the payment to the secretary and treasurer of the board a commission upon taxes collected for the purpose of providing a sinking fund for the retirement of schoolhouse bonds and for paying the principal thereof and the interest thereon, as the statute authorizing the voting of bonds and the levying of taxes therefor expressly limits the purposes for which the tax may be collected and, as pointed out above, provides that no member of the board of trustees shall be entitled to any compensation for service in connection with said bonds. EDUCATION; LOCAL SCHOOL DISTRICTS-Secretary-treasurer entitled to receive delinquent tax due former districts. May 2, 1939 Honorable Arthur H. Stephens Tax Commissioner, Washington County Sandersville, Georgia This will acknowledge yours of April 27, 1939, requesting my opinion "in regard to paying delinquent tax to former School Treasurers where they have been consolidated with another school and have outstanding indebtedness to Pay out of the delinquent funds collected for the years before the consolidation. "You desire advice as to whom checks should be made payable under these circumstances. 160 Of course you realize that I cannot give you any official opinion on the question asked, as my official dutie{l are restricted by law to advising the Governor and State House officials, and representing the State in matters in which the State has an inter;llst. I am glad, however, to give you my unofficial opinion with reference to the question asked in your letter. This opinion, being unofficial, is not binding upon anyone. When the County Board of Education of a cov.nty consolidates two or more schools districts, the old districts lose their legal identity and a new legal entity -the consolidated school district-is formed. The local school district treasurers of the school districts consolidated by the County Board of Education to make one consolidated school district are no longer officers and a new set of trustees should be elected in the consolidated school districts. When trustees for the consolidated school district are elected it is their duty to select a secretary and treasurer. When and if this is done I think that you should deal with the treasurer of the consolidated school district, rather than any former school district treasurer, and should make any checks representing the payment of delinquent taxes collected payable to the treasurer of the consolidated school district. If the local school districts left outstanding debts unpaid at the time of their consolidation, and funds are received by you as Tax Commissioner from delinquent tax payments (that is, from taxes levied for the purposes for which the debts were created), you should make your checks payable to the treasurer of the consolidated school district (if he is bonded, as required by law), and it would be his duty to apply such funds turned over to him by you to the payment of such debts. EDUCATION; LOCAL SCHOOL DISTRICTS-Bonds of treasurers, amount. May 16, 1940 Hon. Zach Arnold State Auditor I am pleased to acknowledge yours of the 15th inst. requesting my con- struction of Sections 32-1120 and 89-419 of the Code with reference to the ques- tion as to whether it would be feasible to enforce Section 32-1120, in the light of the conditions set forth in Section 89-419, and to require a full compliance with said section with special reference to the requirement that the bond be in an amount not less than double the amount of money likely to be received by a treasurer or secretary and treasurer of a local tax school district during his term of office. Code Section 32-1120 provides: "It shall be the duty of the treasurer or the secretary and treasurer of any board of trustees of a public school receiving money raised by local taxation for public schools, to make a good and sufficient bond for the faithful performance of his duties, payable to the county board of educa- tion in a sum not less than double the amount of money likely to be received by him during his term of office, the amount and sufficiency of said bond to be judged by the county board of education, which amount may be in- creased in the discretion of the county board of education. " I am of the opinion that when the language of this section "in a sum not less than double the amount of money likely to be received by him during his term of office, the amount and sufficiency of said bond to be judged by the county board of education" is properly construed, it means that the statute makes it 161 mandatory upon the treasurer or secretary and treasurer to furnish a bond of at least double the amount of money likely to be received by him during his term of office, and vests in the county board of education the discretion of requiring an even larger bond if they see fit. The county board of education does not have the discretion to fix the bond at less than double the amount of money, but only has a discretion with respect to requiring an even larger bond. This construction must necessarily be placed upon said code section if we are to attribute any meaning whatsoever to the words "in a sum not less than double the amount of money, etc. ". Otherwise, these words would have no meaning. If the General Assembly had intended to vest the discretion in the county boards of education of fixing the amount of bond of the treasurer at less than double the amount of money likely to be received by him, it could have very well omitted the language "in a sum not less than double the amount of money, " and merely provided that said treasurer should give a bond "the amount and sufficiency" of which was to be judged by the county board of education. Since we are bound, by various decisions of our appellate courts, to give meaning to every word and phrase in a statute if possible (see Falligant v. Barrow, 133 Ga. 87, 92 Smith v. Davis, 85 Ga. 630,) we must necessarily conclude that when the General Assembly said that such treasurers should give a bond "in a sum not less than double the amount of money, etc.", it meant to leave no discretion to the county boards of education to accept a bond providing for a lesser amount of penalty. As to the "sufficiency" of such bond, it appears that the General Assembly has vested the county boards of education with a broader discretion. The word "sufficiency" as used in this statute, however, is not synonymous with the word "amount". This is apparent from the plain language of the statute, for if said words had been used by the General Assembly as being synonymous in meaning, it would have been unnecessary to have used both words. Therefore, I am of the opinion that, while the county boards of education have a broad discretion in determining the "sufficiency" of a bond given by a local treasurer, this means that they may determine the sufficiency of the bond given from the standpoint of the legal and financial accountability of the sureties on the bond. It may be also that they would have some discretion in determining the sufficiency of the amount of a bond where it was found necessary to require a bond of a greater amount than double the amount of money likely to be received by a local treasurer. Code Section 89-419 reads: "Whenever any officer, required by law to give an official bond, shall act under a bond which is not in the penalty payable and conditioned, or not approved and filed as prescribed by law, such bond shall not be void, but shall stand in the place of the official bond, subject, on its condition being broken, to all the remedies, including the several suits, which the persons aggrieved might have maintained on the official bond." This section should be construed, for the purpose of answering your request, in connection with Section 32-1121, which provides: "In the event the treasurer or secretary and treasurer as aforesaid, shall fail to make the bond as required in section 32-1120, then and in that event, any money raised by local taxation for public schools or otherwise, which under the laws should have been paid over to the treasurer or the secretary and treasurer, shall be paid over to the county board of education to be by 162 them paid out on the orders of the board of trustees of such school district in the manner other moneys are paid out by them. " Since this last code section provides the procedure to be followed where a bond has not been given in accordance with Section 32-1120, and since the question as to whether or not, in view of Section 89-419, bonding companies might be called upon to pay a loss far in excess of the bond they have executed is at this time an academic question, I think it both unnecessary and unwise to pass upon prospective liability which might be suffered by a bonding company. After all, your request seems to be chiefly concerned with the construction of Section 32-1120, and having fully construed this section, I would suggest that when your assistants find cases where such bonds do not provide for a penalty in double the amount of money likely to be received by the local treasurers during their term of office, they report the matter to the proper county board of education and require them to deal with the local boards of trustees in the manner provided in Section 32-1121 of the Code quoted above. EDUCATION; LOCAL SCHOOL DISTRICTS-Have no authority to sell tax fi. fas. at discount. April 16, 1940 Hon. M. D. Collins State Superintendent of Schools I am pleased to acknowledge yours of the 11th inst. transmitting the request of Hon. Paul W. Calhoun, Montgomery County Superintendent of Schools, for an opinion upon the following question: "Would it be legal for a local tax district to sell tax fi. fas. for years back which are within the seven years last past. These levies made for bonds, but bonds and interest are paid up to date. This is of course the uncollected levies for the period mentioned. "The district would like to sell these fi. fas. at a discount and add rooms to their school building. They have no other way of raising this money at present. They want to be sure that they are right before they make any move, however. I would appreciate it if you will advise me about this matter or have Mr. Arnall advise." I think that the question propounded must be answered in the negative. Under the statute prescribing the powers and duties of local district trustees, there is a total absence of any authority vested in such officials to sell or otherwise dispose of or handle tax fi. fas. In fact, since the tax fi. fas. represent taxes due for the purpose of retiring school district bonds, I am of the opinion that, even if the fi. fas. could be sold, the proceeds derived from such a sale wouid have to be retained by the trustees of the local district and used solely "for the purpose of taking care of and paying the principal and interest of" the school district bonds, and, in the event that the principal and interest on such bonds is paid up to date, and there is no provision in the bonds whereby they may be paid before falling due, then such funds would have to be placed in "a sinking fund for the retirement of said bonds" and the interest thereon when the same becomes due. (See Code Section 32-1402) . This is true for the reason that the statute just referred to so provides, and for the further reason that our Supreme Court has held, in the case of Dodge County Board of Education, et al. v. Dykes, 171 Ga. 317, that the proceeds derived from the sale of bonds issued and sold by a consolidated school district are impressed with a trust for the erection of a school building or buildings by the district board of trustees in the district, 163 and that the district trustees are bound to faithfUlly execute this trust, and that they are liable for any breach of such trust. It necessarily follows, therefore, that the trustees are likewise under a solemn duty and trust to apply all proceeds of taxes levied and collected to the purpose outlined in the statute, to wit, "to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and the interest thereon". EDUCATION; BONDS FOR SCHOOL BUILDINGS-Additions to building after consolidation. June 6, 1940 Miss Ruth Williams County School Superintendent Catoosa County Ringgold, Georgia I am pleased to acknowledge yours of the 4th instant in which you state that the Fairview School District of your county wishes to consolidate with the Boynton School District; that the Boynton School District has outstanding bonds and no room to take care of the Fairview District if the consolidation should be voted. You request my opinion as to whether it is possible for Fairview to vote a $3, 000. 00 bond issue in the Fairview District before the consolidation, the proceeds of such bonds to be used to build an addition in the Boynton School District. Article 8, Section 4, Paragraph 1 of the Constitution provides in part: "Provided also, that authority is hereby given to two or more local school districts, any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated; provided, however, before such consolidation shall become effective, the same shall be approved by the vote of two-thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendations of the respective boards of trustees, under the same terms and conditions as to advertisement as bond elections by school districts, the tickets for said elections to have written or printed thereon, "For Consolidation with Bonded District, " or "Against Consolidation with Bonded District;" and in the event said elections result in favor of said consolidation, the result shall be so declared by the boards of trustees of said districts, and thereafter the indebtedness outstanding against any one or more of said districts shall be a valid outstanding indebtedness of the district as consolidated, and taxes for the payment of said indebtedness shall be levied accordingly: ... " You will note that if the consolidation is perfected in the manner outlined above separate elections will have to be held in the respective school districts, and the people in the Boynton School District will have to vote to assume the bonded indebtedness outstanding in the Fairview District, and the people in the Fairview District will have to vote to assume the bonded indebtedness outstanding in the Boynton School District. Therefore, it might be just as well to consolidate the two school districts before the Fairview District votes bonds, and then, after the consolidation has been perfected in accordance with the constitutional provision set out above, a new election could be held in the entire consolidated school district and the resUlt, insofar as the burden upon the tax payers of the consolidated school district, would be the same. That is, the people in the consolidated school district would, in either event, be required to pay taxes to retire the bonds which were outstanding at the time of the consolidation, and the bonds which were voted after the consolidation. In View of the fact that there might be some question as to whether the FairView District, before its consolidation with the Boynton School District, would have the authority to vote bonds and then turn the money raised from the sale thereof over to the Boynton School District, or to build a school house or an addition to the school house in the Boynton School District, it occurs to me that it would be preferrable to first consolidate the two districts in accordance with the procedure first above outlined in the constitutional proVision quoted, and then if the people in the districts involved in the consolidation did not approve of a consolidation, the county board of education could pass a proper resolution rediViding the two districts, restoring them to their prior status. Under several decisions of our Supreme Court it, has been held that when two or more school districts are consolidated, the old districts lose their standing as separate legal entities and an entirely new legal entity-the consolidated school district-is created. See Perry v. Baggett, 164 Ga. 143; Towns v. Workmore Public School District, 166 Ga. 393; Barber v. Cummings, 167 Ga. 289; Huie v. Morris, 176 Ga. 562. Applying these decisions to the plan proposed in your letter, it necessarily follows that if bonds are voted in the FairView District before the consolidation the trustees of the FairView School District would have no authority to build a school house in the Boynton District. Carrying the proposition one step further, if the school trustees had not used the proceeds from the sale of the bonds at the time of the consolidation of their district with the Boynton School District, and the consolidation of the two districts results in the abolition of the FairView District, and the trustees of the FairView District become functus officio, no one would have the authority to transfer the bond money to the Boynton School District's trustees for their use in building the school house. Therefore, as suggested above, I think the best plan to be followed would be to consolidate the two districts in accordance with the procedure outlined above, before the FairView School District has voted bonds. Of course, you realize that this opinion is purely unofficial, for the reason that under the law the Attorney General has no authority to render official opinions upon questions of this kind, except upon the written request of the Governor. Since the matter is somewhat complicated I would suggest that you confer with your county attorney before taking any action and seek his adVice in working out the details of the proposed consolidation. EDUCATION; BONDS FOR SCHOOL BUILDINGs-Valuation of assessible property, how determined. Effect of homestead exemption. August 20, 1940 Mrs. N. M. Reynolds Tax Collector Jenkins County Millen, Georgia I have your letter of August 16 stating that the people of Jenkins County voted school bonds, which were validated on November 29, 1938. You state that 165 on August 14, 1940, the Board of Commissioners of Roads and Revenues levied two and three fourths mills to pay these bonds, and you ask if this levy shoUld apply to the "total valuation of the 1940 Digest before exemption or to the net valuation after exemption. " While the law does not permit me to render an official opinion on matters of this kind, I am glad, however, to call your attention to the case of Campbell v. Red Bud Consolidated School District, 186 Ga. 541, in which the Supreme Court held that the 1937 amendment to Article 7, Section 2, Paragraph 2 of the State Constitution, exempting certain personal property from ad valorem taxation, applies to school bonds, but that the homestead exemption amendment does not apply to realty where the purpose of the tax is to pay interest on and retire school bonds. In the course of its opinion in that case the Court said (p. 548): "7. On the question whether the assessed value of all taxable property in the Red Bud Consolidated School District was such that a proposed bonded indebtedness of $15, 000 to build a schoolhouse, would exceed "seven per centum" of such assessed value, the value of exempted personalty shoUld be omitted, while the value of exempted realty shoUld be counted. Where, as in the instant case, the assessed values of the realty alone are such that the proposed debt would not exceed seven per centum of property values, omitting from the count the assessed value of exempted personalty, the school district woUld be authorized to incur the bonded indebtedness. " EDUCATION; BONDS FOR SCHOOL BUILDING&-No particular coin payment can be specified. December 14, 1940 Hon. M. D. Collins State Superintendent of Schools I am pleased to acknowledge receipt of your letter of December 11, 1940, inclosing a letter which you received from Hon. R. A. Stallings, County School Superintendent of Berrien County, in reference to whether or not a provision proposed to be inserted in bonds to the effect that the bonds will be paid in gold coin of the United States will invalidate the election. Section 463 of Volume 1 of U.S. C. A. reads in part as follows~. "Every provision contained in or made with respect tq any obligation which purports to give the obligee the right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy, and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment dollar for dollar in. any coin or currency which at the time of payment is legal tender for public and private debts." (Emphasis supplied.) While it is quite doubtful as to whether such a provision is enforceable, its . inclusion would certainly not invalidate the bond election. 166 EDUCATION; BONDS FOR SCHOOL BUILDINGS-Use of surplus bond tax levies. October 24th, 1940. Hon. M. D. Collins, State Superintendent of Schools, I am pleased to acknowledge yours of the 16th instant, relative to the bonded indebtedness of the Chatsworth School District in Murray County, your letter stating that for several years the millage for the retirement of the school bonds has brought in more than the necessary amount to retire said bonds each year and more than $3, 000 has accumulated and the people of Chatsworth desire to use these funds for the purpose of matching WPA funds and erecting two additional rooms to the present grammar school building. You request my official opinion as to whether the school authorities at Chatsworth would be within their legal rights to use this accumulated $3, 000 to match Federal funds to erect additional rooms to their present bUilding. I regret to advise you that since the question submitted is one which involves a matter in which neither the State nor the State Department of Education has any interest, the law prescribing my duties will not permit me to render you an official opinion upon this subject. While I would like to help the local school authorities in determining what their rights and duties are in this matter, nevertheless the question should be addressed to the county attorney for his decision and advice. Any opinion which I might give upon the question would be purely unofficial and binding upon no one. The language of Code Section 34-1402 which prescribes the uses of proceeds of taxes levied for retiring a bonded indebtedness is rather plain and explicit. It provides "for the purpose of taking care of and paying the principal and interest of the 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 taxes as may be necessary to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and the interest thereon; this to be in addition to the general tax for the maintenance of the schools of said territory. " Comment upon the language of this statute, in view of its plain meaning, is hardly necessary. If more taxes are being levied than are necessary to retire the bonds and pay the principal and interest of the bonds, then it would be probable that the millage of the levy should be reduced. Certainly the Code Section referred to and quoted from above casts such a serious doubt upon the legality of the proposed plan to use the $3, 000 of accumulated funds to erect additional rooms on the present building that the school authorities should consult with their county attorney about this matter before proceeding. Unofficially, I do not think school authorities are authorized to use the accumulated funds for the aforesaid purpose, and any taxpayer could enjoin such use. (Emphasis supplied. ) Let me again reiterate the fact that everything which is said in this letter is purely unofficial and is not binding upon the school authorities in Murray County. 167 EDUCATION; REFUNDING SCHOOL BONDS-Constitutionality of Ga. Laws 1937 pp. 869-878 discussed. February 5, 1940 Honorable W. Wright Abbot, Jr. Attorney at Law Louisville, Georgia I hope that you will pardon my delay in answering yours of the 19th ultimo with reference to the constitutionality of the statute approved March 31, 1937 (Georgia Laws 1937, pp. 869, 878) authorizing school districts, etc., to refund outstanding bonded indebtedness. This delay was due to the fact that this office has been unusually burdened with official State business for the past several weeks, and I have been out of the city much of the time. The statute referred to in your letter was drawn by two of my assistants, Honorable Marshall Allison and Honorable E. J. Clower, at the request of certain school people. At the time it was being prepared, my assistants advised these gentlemen that the statute would be of doubtful constitutionality and would probably have no practical effect in relieving any distressed situation with respect to past due bonds and interest. Subsequent to the adoption of this statute, this office has communicated with several bond attorneys and has learned that none of these bond attorneys are willing to advise any of their clients to purchase any bonds refunded under the plan set out in the statute. The first obstacle is that such a refunding scheme would, in effect, create a debt without an election, and might serve to extend the obligation originally incurred beyond the period of 30 years, thus violating Article 7, Section 7, Paragraph 2 of the Constitution (Code Section 2-5502). So, as a practical matter, with the bond attorneys assuming this position, which is perhaps correct, it is very doubtful that even if a school district endeavored to refund its bonded obligation according to the scheme of this statute it would find no sale for the refunding bonds. I think that your suggestion with reference to a test case is good and that the question as to the constitutionality of the statute could be raised in the manner set out in your letter, to wit: By having an election called and then bringing a suit to enjoin the same on the ground that the expenses incurred in holding the election would be an illegal expenditure of funds because the election itself would be void, if held. Regretting that I cannot give you any more encouraging information with reference to this statute and again apologizing for my delay in answering your inquiry, I am with kindest personal regards and best wishes, EDUCATION; TEXT BOOKS-Code sections cited. May 5, 1939 Committee on Economy and Efficiency This will acknowledge yours of the 4th instant requesting information as to the number and contents of Code Sections relating to the preparation of civics text books, and other text books, by the Department of Education. Code Section 32-509 provides: "The State Superintendent of Schools is required to prepare, with necessary assistance, a text book on civil government and have it printed and sold to the schools at cost. " Code Section 32-1901 provides: 168 "The Georgia State Board of Education shall prescribe a course of study in physical education for all common schools and shall fix the time when such said course shall go into effect. This course shall occupy periods total~ ingnot less than thirty minutes each school day which shall be devoted to instructions in health and safety, to physical exercises and to recess play under proper supervision. "A manual setting out the details of said course of study shall be prepared by the State Superintendent of Schools in cooperation with the State Board of Education, and such expert advisors as they may choose. Said manual when published shall be sent by said State Board of Education to the teachers of the common schools. " While your Committee did not ask for an opinion upon these Code Sections, I might point out that it is possible, should the question be raised, that the Courts woUld hold that the provisions of Code Section 32~509-if not also those of 32-1901 insofar as the preparation of the manual is concerned-are super~ seded by the Act of 1937 (Ga. L. 1937, p. 896, 901}. EDUCATION; W & A RENTALS DISCOUNT-Discretionary with county fiscal authority to use for educational purposes. March 23, 1939 Hon. H. C. Cox Attorney at Law Monroe, Georgia I have your letter of March 22nd. You state that Walton County received certain money from the W&A Rental Discount during the year 1938 and that the county made levies for \loll usual purposes to cover expenditures for said year of 1938. You state that the co'unty board of education takes the position that the county is due the county board of education the money received by the county from the W&A Rental. You ask my opinion on this matter. You also ask if the county can legally pay over to the county board of education any funds that it may now have on hand. These questions that you present are local questions involving power of the county authority to expend certain funds which may be in his hands. Such a question is not one upon which the Attorney General is authorized or em~ powered by law to render an official opinion. My opinion upon this matter would not be binding upon any one. I have no right to presume that the county authority would desire my personal views upon the matter. However, in order to be helpful, I am giving you hereinafter my personal views with the understand~ ing that it is not an official opinion and is not intended to be binding upon any one. The Act of the General Assembling providing for the W&A Rental Discount (Ga. Laws 1937-38, Extra Session, pages 75, 76} in Section 3 thereof, provides in part: "All funds herein provided for and distributed to each county shall be applied toward and used solely for the payment of the expenses of the operation of the courts, or for educational purposes. The intent of this amendment to allow the county commissioner, or fiscal authority of each county to use said funds for the courts of said county, or the schools, or both, as the needs may be, in the discretion of the fiscal authority of each county. " Assuming that the funds referred to in your letter consist solely of money received by Walton County from theW&A Rental Discount and that the county authority yet has in his hands those particular funds on a part thereof, it ap- 169 pears to me that if the fiscal authority of Walton County determines that such funds or any part thereof are needed for educational purposes, he may, in his discretion, use the same for the support of the schools of said county. ELECTIONS; REGISTRATION OF VOTERS-Elector's oath must be subscribed in person, hence husband cannot register for his wife. Aprill3, 1940 Mr. J. A. Tuten Tax Collector Appling County Baxley, Georgia I am glad to acknowledge yours of the 7th inst. requesting an opinion upon the following questions: {1) Can a man register his wife or other member of his family? Answer: No. Section 34-103 of the Code provides: "The oath to qualify an elector shall be as follows: 'I do swear, or affirm, that I am a citizen of the United States; that I am 21 years of age, or will be on the ______ day of ---------------- of this calendar year; that I have resided in this State for one year, and in this county for six months, immedi- ately preceding the date of this oath, or will have so resided on the____day of ---------------- of this calendar year; that I have paid all poll taxes which I have had an opportunity of paying agreeably to law; that I possess the qualification of an elector required by the Constitution; and that I am not disfranchised from voting by reason of any offense committed against the laws of the State. I further swear, or affirm, that I reside in the------------ district, G. M., or in the ______ ward of the city of---------------- at num- ber ______ on ------------------------ street; my age is ------ my occupa- tion------------------------'" Section 34-108 provides: "Upon request of the applicant, the officer in charge of the voters' book shall read or repeat said oath distinctly to the applicant, and if the applicant cannot sign his name, the said officer shall sign it for him, the applicant making his mark thereto." Section 34-109 provides: "The tax collector or his clerk shall in no instance permit a person to sign the voters' book or any separate printed oath unless such person shall have actually made the oath before him thereon contained. " Our Court of Appeals, in the case of Turk v. Royal, 34 Ga. App. 717, has held that one cannot lawfully register as a voter without signing his name in the voters' book in person or by making his mark as prescribed by Section 34-108. Accordingly, tt necessarily follows that a husband could not sign the voters' book or take the oath of an elector for and on behalf of his wife, or vice versa. {2) How many years must I collect back poll taxes? Answer: While a fi. fa. or execution for poll taxes may not be legally collecti- ble at the expiration of seven years, nevertheless, the defendant in fi. fa. would, notwithstanding this fact, be disqualified as a voter until he had paid "all poll taxes that he may have had an opportunity of paying agreeably to law". See Art. 2, Sec. 1, Paragraph 3, Constitution of Georgia. {3) What must I do where a poll tax fi. fa. is not on the digest? 170 Answer: I am not certain that I fully understand your question, but I think that the proper procedure would be to collect the fi. fa. and issue a receipt therefor and mark the same "Not on Digest". See Code Section 92-7110; Douglas v. McCurdy, Sheriff, 154 Ga. 814 (8). (4) Where a woman's name has been placed on the registration list without her knowledge and consent, and she has never voted, shall I let her register in her handwriting without paying any back poll tax? Answer: Yes. That would be the proper procedure, for, under the provisions of Code Section 92-108 levying the poll tax, a female voter is not required to pay poll tax except after she registers for votmg. No one else could register for her. (5) What must I do where a man of any age who has never registered or made a poll tax return seeks to register? Such a person (unless he is blind) would have to pay a poll tax for each year since he became 21 years of age, that he has been an inhabitant of this state. Of course, you realize that what is said herein is purely unofficial, for the reason that I am not authorized, under the law prescribing my duties, to render you an official opinion upon the questions asked. I am happy, however, at all times to help county officers and election officials in any manner that I am able to, and if there is any further information that I can give you I shall be delighted if you will call upon me for the same. ELECTIONS; REGISTRATION LISTS-Shall show race, age, occupation and residence of each voter. May 28, 1940 Hon. S. M. Hay Tax Collector Covington, Georgia This will acknowledge receipt of your letter of May 18th in which you state: "Is it necessary that a person's age, occupation and address be placed on registration list of voters? I understand that this should be entered on voters or registration book at the time an individual registers for voting, but would it disqualify a voter who was otherWise qualified if their age, occupation, etc. was not placed on the registration lists? "Provided the above is necessary should the age of the individual at the time he registered be used, as well as the occupation in which they were engaged at that time be placed on the registration list, or if the registrars are aware that the occupation of some has been changed should the occupation be corrected from that given on the registration book?" You must understand of course, that since the Attorney General is authorized by law to render official opinions only when so requested by the Governor or by one of the officials of the Executive Department of this State, anything which might be said in response to your inquiry must be considered as merely an expression of my personal views upon the subject, and not binding upon anyone. Section 34-107 of the Georgia Code of 1933 provides, in part, as follows: "Any person desiring to be registered as a voter may apply to the tax collector or his clerk, and, after reading the oath required to qualify an elector or having the same read to him, shall subscribe the same by signing his name in the voters' book, underneath the written or printed oath above described, or on some page folloWing the one on which said oath is printed !71 or written, or upon a separate printed oath; a.memorandum or entry of the district or ward (giving the name of the street, and the number of the residence, if any, in which affiant lives, and the age and occupation) being first made by the officer in charge of the book, or by the affiant above the place of signature of the affiant. " Section 34-201 of the Code provides that each year the tax collectors of the several counties shall make up the registration lists for the year as now provided by law by putting on such registration lists the names of such electors as appear on the permanent qualification or voters' book, and who have duly paid all poll taxes due and required of them at least six months prior to the election for which the registration list is made up. Section 34-202 provides: "Within 10 days after closing the voters' books, as provided in Section 34-106, the tax collector shall file with the county registrars an accurate and complete copy of the registration list made up as provided, in the preceding section, arranged in alphabetical order, and by militia districts and city wards, and also showing the dates in that year when persons will arrive at full age or will have resided in the State and county the requisite time, as sworn to in the voters' books. The list shall also show the race of each person -that is to say whether white or colored-his age, occupation, and residence. " (Emphasis supplied. ) Section 34-401 provides in part, as follows: "The registrars shall examine the list furnished by the tax collector and compare the same with the list of disqualified persons, prepared and filed by the tax collector, the ordinary, and the clerk of the superior court, and shall proceed to make up a list to be known as 'registered voters', in alphabetical order of names and by militia di'ltricts and city wards, distinguishing in said lists between the white and colored voters, said list to show the age, occupation, and residence of said voters. " (Emphasis supplied.) Although the age, occupation and residence of the voter should appear upon the registration list, I do not believe that it would disqualify a voter who was otherwise qualified if his age, occupation and residence failed to appear upon the list. Section 34-405 of the Code which defines the persons entitled to vote, provides in part: "Each person whose name is upon the registration list for the general election provided for in the foregoing section shall be entitled to vote at the general State election for said year and all primaries to nominate candidates for offices to be filed at said general State election and also at the Federal election in November of said year, and the election for justices of the peace and constables to be held in said year, and at all primaries for the nomination of candidates for the offices to be filled at said elections, and also at all primaries for nomination for county offices, and all other primaries and elections to be held for any purpose during said year after the filing of said registration list or during the succeeding year . . . " You will note that the requirement of the foregoing Code Section is that in order for a person to be entitled to vote, his name shall be upon the registration list. It would appear therefore, that the provisions requiring the tax collector and the registrars to include the age, occupation and residence of the voters upon the respective lists prepared by such officers are directory, and the failure to do so would not disqualify a voter whose name was upon the registration list and who was otherwise qualified. 172 When words are affirmative and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they are often construed to be directory. (Southern Security Company vs. American Discount Company, 55 App. 736). Since it is contemplated that the l~t to be prepared by the Tax Collector is to be taken from the voters' book and the list to be prepared by the registrars is to be made up after an examination of the list furnished by the Tax Collector and a comparison of that with the list of disqualified persons, I believe it would be sufficient for the registrars to designate the age, residence and occupation set out in the tax collectox's list. The registrars would have no way of knowing of changes in residence and occupation. However, I do not believe that it would affect the right of any person whose name was on the list of registered voters and who was not otherwise disqualified to vote if the registrars, being aware that such person's age, residence or occupation had been changed from that appearing on the voters' book, made such correction in preparing the list of registered voters. ELECTIONS; LISTS OF PERSONS DISQUALIFIED-Furnished by tax collector, Ordinary and Superior Court Clerk to county registrars. July 6, 1939 Honorable C. S. Vining, Registrar 309 East Gordon Street Th:>maston, Georgia This will acknowledge yours of the 3d instant asking: "Is it not the duty of the tax collector, ordinary and clerk of Superior Court to furnish Registrars the list of tax defaulters?" In reply I wish to refer you to Sections 34-203 and 34-1001 of the Code of Georgia of 1933. Section 34-203 provides: "The tax collector, the ordinary and clerk of the Superior Court of each county shall, before the 20th day of April of each year prepare and file with the county registrars, a complete list, alphabetically arranged, of all persons living in the county on AprillO of that year, who appear to be disqualified from voting by reason of non-payment of poll taxes, or by reason of idiocy, insanity or conviction of crime whose penalty is disfranchisement, unless such convict has been pardoned and the right of suffrage restored to him; and said list shall also show the race of such person, that is to say whether white or colored. " Section 34-1001 prescribes the amount of compensation which shall be awarded these officers for performing these duties. ELECTIONS; QUALIFICATIONS OF VOTERS-Age limits of persons subject to poll tax. Male inhabitant over 21 registering for first time must pay poll taxes for prior years due and unpaid. September 23, 1939 Mrs. W. W. DeLoach Tax Collector Bulloch County Statesboro, Georgia I have your letter of September 21st asking the following questions: 1. "Should a man who is 25 years old register that has never registered in any place before or paid any poll tax?" 173 2. "Should he pay poll tax from the time he became 21 years of age to be a qualified voter?" 1. He need not register unless he wants to vote. No person except a. registered voter, however, can cast a ballot at any election. Sections 34-801 and 34-3206 of the 1933 Code. 2. Answering your second question, reference shoUld be made to Article II, Section I, Paragraph III of the Constitution of Georgia, which provides as follows: "Who entitled to register and vote. To entitle a person to register and vote at any election by the people, he shall have resided in this 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. " Section 34-113 of the 1933 Code provides that no one shall be allowed to register for a general election unless he shall have paid all poll taxes due by him at least six months before the date of the election. Section 34-405 of the 1933 Code provides that no person shall be qualified to vote at any election unless he shall have paid all poll taxes due at least six months before the same, except when said election is held within six months from the expiration of the time fixed by law for the payment of said taxes. (Emphasis supplied.) Section 92-108 of the 1933 Code provides as follows: "Poll tax; exemptions. -There shall be levied and collected each year upon every inhabitant of the State between the ages of 21 and 60 years, on the day fixed for the return of property for taxation, a poll tax of $1, which shall be used for educational purposes in instructing children in the elementary branches of an English education only: Provided, that this tax shall not be demanded of blind persons, or female inhabitants of the State who do not register for voting. " In view of the above Sections of the Code, it is apparent that no male citizen between the ages of 21 and 60 years can become a qualified voter unless he has paid all poll taxes due since he became 21. Furthermore, all male citizens of this State between the above ages are subject to poll taxes, whether they register or not. Breedlove v. Suttles, 183 Ga. 189; Sims v. Kennedy, 184 Ga. 822 at 826 (3). In the case of Sims v. Kennedy, supra, the Court said, at page 826 (3) : " . . . where a male inhabitant arrives at the age of 21 years after .January 1 in a given year, he is not subject to the poll tax for that year, but is subject to it in later years whether he registers or not. " ELECTIONS; QUALIFICATIONS OF VOTER8-Females, when subject to poll tax; when subject to arrears of poll taxes. November 20, 1939 Honorable G. L. Galbraith Tax Collector, Wheeler County Glenwood, Georgia This will acknowledge yours of the 17th instant requesting an opinion upon the question as to whether, under the law, a female who registered for voting in 1931, paid poll tax and voted and later had her name stricken from the list 174 and who has not subsequently paid any poll tax, may now come in, register again and vote without paying all poll tax accrUing since her first registration, or whether she may now re-register and vot~ by paying only one year poll tax. 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, and there was at that time, no law in Georgia levying a poll tax upon females (see Brown v. Atlanta, 152 Georgia 283) . The General Assembly of Georgia, in Section 20 of the General Tax Act of that year, provided that 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 effective January 1, 1922. Of course, the effect of this Act was to impose a poll tax upon every inhabitant of this State without respect to sex. In the General Tax Act of 1923 (Georgia Laws Extra Session 1923, page 21, paragraph 1) a poll tax of $1. 00 was levied upon each and every inhabitant of the State between the ages of 21 and 60, but this paragraph contained a further proviso which read: "This tax shall not be required or demanded of female inhabitants of the State who do not register for voting. " And it also embodied as Subsection (a) the following: "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 remained in effect until the General Tax Act of 1927 (Georgia Laws 1927, page 57), which said General Tax Act became effective January 1, 1928. This General Tax Act of 1927 omitted the provisions of subsection (a) of the General Tax Act of 1923 as above quoted, and levied a poll tax of $1. 00 in the same language as that used in the Act of 1923. Since this General Tax Act of 1927 was dealing exhaustively with the subject of the payment of poll taxes, as well as other specific and occupation taxes, it must be construed as having superseded the General Tax Act of 1923 (See Fidelity FrUit and Produce Company v. City of Atlanta, 183 Georgia 698). This being true, it is obvious that since January 1, 1928, there has been no statute permitting a female who had previously registered as a voter to have her name stricken from the registration book as formerly provided by the Act of 1923. Therefore, if the person referred to in your letter registered for voting in 1931 and later had her name stricken from the registration book, it was done without legal authority and had no legal effect. Such a female would still be due poll taxes for each year since she had registered, unless she is over the age of 60 or has become blind. Generally speaking then, it may be said that female voters who registered prior to January 1, 1928, and who had never had their names stricken from the registration book in accordance with the provisions of the Act of 1923, as well as female voters who have registered subsequent to January 1, 1920, may not now and could not at any time since January 1, 1928, have their names stricken from the registration book, and thus relieve themselves from the payment of any poll taxes which may have been levied upon females since January 1, 1928. 175 I might add that this opinion is in accordance with the views expressed by my distinguished predecessor, Honorable M. J. Yeomans, and in an opinion to Governor Talmadge under date of June 29, 1935 (see Opinions, Attorney General 1935-36, page 127) . ,. ELECTIONS; QUALIFICATIONS OF VOTERS-Voter 61 years of age must pay poll taxes in arrears for prior years. January 20, 1940 Honorable R. E. L. Culpepper Ordinary, Mitchell County Camilla, Georgia I am pleased to acknowledge yours of the 17th instant requesting my opinion as to whether or not a voter who became 61 years of age last year, and who is now exempt from poll tax, may vote in an election although he owed a poll tax for the years 1937 and 1938. Your question is very definitely answered by Article 2, Section 1, Paragraph 3 of the Constitution which provides in part: "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 elec- tion, and shall have paid all poll taxes that he may have had an opportunity of paying agreeably to law. " (Emphasis supplied.) Accordingly I am of the opinion that the person referred to in your letter must pay his 1937 and 1938 poll taxes in order to become a qualified voter in any election by the people, even though he is now over 60 years of age. Of course, you realize that what is said in this opinion is purely unofficial and is binding upon no one. It is merely my personal views as to the law upon the question asked, as based upon the Constitution of this State. ELECTIONS; QUALIFICATIONS OF VOTERS-Resident of another state moving to Georgia in December subject to poll tax the following January 1st. December 27, 1939 Hon. Mosely Hogan Tax Collector Lincoln County Lincolnton, Georgia I have your letter of December 22nd asking the foliowing question, to-wit: "Where a non-resident moves into the county and State, coming from another State in December, is he subject to poll tax as of January 1st, some three or four weeks after he comes to Georgia?" Section 92-108 of the 1933 Code provides as follows: "Poll tax; exemptions. -There shall be levied and collected each year upon every inhabitant of the State between the ages of 21 and 60 years, on the day fixed for the return of property for taxation, a poll tax of $1, which shall be used for educational purposes in instructing children in the elementary branches of an English education only: Provided, that this tax shall not be demanded of blind persons, or female inhabitants of the State who do not register for voting. " (Emphasis added.) In the case of Sims v. Kennedy, 184 Ga. 822, at 826 (3) , the Supreme Court of Georgia held that "the day fixed for the return of property for taxation" 176 is January 1 of each year. In that case the Court held that where a male inhabitant of this State arrives at the age of 21 after January 1 in a given year, he is not subject to the poll tax for that year, but is subject to it in later years whether he registers to vote or not. (Emphasis added. ) In view of the foregoing provisions of law, it is my opinion that where a non-resident moves into the State of Georgia in December of a given year, he is not subject to poll taxes for that year, but beginning with January 1st after his removal into the State of Georgia he is subject to poll taxes so long as heresides within this State. You realize, of course, that since the Attorney General is not authorized by law to render official opinions except when so requested by the Governor or by one of the officials of the Executive Department of this State, anything which might have been said in this letter must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. ELECTIONS; QUALIFICATIONS OF VOTERS-Grandfather's clause. May 18, 1939 Hon. Hugh Quin Central Bag Company 423 Plum Street Macon, Georgia This will acknowledge yours of the 12th instant in which you state that you have been requested to make a talk on Civics to a group of Boy Scout8 and one of the questions is "What is the Grandfathers Clause to the Constitution?" You desire advice as to what this clause provides. I quote you herewith the provisions of Article 2, Section 1, Paragraph 4 of the Constitution of Georgia {Code Section 2-604) which is commonly known and referred to as the "Grandfather Clause": "Qualifications of electors. Every male citizen of this State shall be entitled to register as an elector, and to vote in all elections in said State, who is not disqualified under the provisions of Section II of Article II of this Constitution, and who possesses the qualifications prescribed in Paragraphs II and III of this Section or who will possess them at the date of the election occurring next after his registration, and who in addition thereto comes within either of the classes provided for in the five following subdivisions of this paragraph. "1. AU persons who have honorably served in the land or naval forces of the United States in the Revolutionary War, or in the War of 1812, or in the War with Mexico, or in any War with the Indians, or in the War between the States, or in the War with Spain, or who honorably served in the land or naval forces of the Confederate States, or of the State of Georgia in the War between the States; or, "2. All persons lawfully descended from these embraced in the classes enumerated in the subdivision next above; or, (Emphasis supplied.) "3. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or, "4. All persons who can correctly read in the English 1anguage any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are un- 177 able to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars; or, "5. Any person who is the owner in good faith in his own right, of at least forty acres of land situated in this State, upon which he resides, or is the owner in good faith in his own right of property situated in this State and assessed for taxation at the value of $500. " We sometimes speak of the "Grandfather Clause" in the Appropriation Act of our State. When this expression is used we refer to that Section of the Appropriation Bill which provides that in event of a deficiency in revenue whereby the full amount of the appropriations can not be paid, all of the appropriations are reduced pro rata to conform to the available amount of revenue. ELECTIONS; QUALIFICATIONS OF VOTER8-Physical disability other than blindness does not exempt person from poll tax. January 13, 1940 Hon. Lonnie Fountain 759 County Road Thomaston, Georgia I have your letter of January 11th asking if you are relieved from having to pay poll tax because of your physical disability. Section 92-108 of the 1933 Code and Section 2, Paragraph 1 of the General Tax Act approved March 28, 1935 (Georgia Laws 1935, pages 11, 12) provide as follows: "There shall be levied and collected each year upon every inhabitant of the State between the ages of twenty-one and sixty years, on the day fixed for the return of property for taxation, a poll tax of $1. 00, which shall be used for educational purposes in instructing children in the elementary branches of an English education only; Provided that this tax shall not be demanded of blind persons, or female inhabitants of the State who do not register for voting. " (Emphasis supplied.) You will notice that the foregoing provisions of law exempt only those persons within the specified age limits who are (1) blind, or who are (2) female inhabitants of the State who do not register for voting~ No other exceptions or exemptions are authorized by the law. ELECTIONS; QUALIFICATIONS OF VOTERS-Person becoming 21 nine days after general election cannot vote in that election. April 19, 1940 Hon. U. B. Sammons Watkinsville, Georgia I am pleased to acknowledge yours of the 18th inst. in which you request my advice as to the eligibility of your son, U. B., Jr., who wishes to vote in the coming state primary and general election, your letter stating that your son will not be 21 years of age until November 14, 1940. I am enclosing you herewith a mimeographed copy of an unofficial opinion, from paragraph 7 of which you will observe I have answered your question. No Person who will not be 21 years of age on or before the date of the November 178 general election, to-wit, November 5th, may register and become qualified to vote in said election, or in any primary for the nomination of candidates to run in said general election. Since your son will not be 21 until about nine days after November 5, he cannot qualify as a voter in said election. I trust that you realize that this opinion is not official, for the reason that, under the law prescribing my duties, I am not authorized to render official opinions except upon the request of the Governor or heads of State departments. ELECTIONS; DISQUALIFIED PERSONS-Conviction of certain crimes disqualify. Hon. L. H. Edenfield Route 1, Box 34 February 1, 1940 Stillmore, Georgia I am pleased to acknowledge yours of January 25th in which you request information as to the status of a person who has served a sentence in the United States prison in Atlanta, as applied to the question of his right to vote for or hold a county or state office. Article 2, Section 2, Paragraph 1 of the Constitution of this state provides in part: "The General Assembly may provide, from time to time, for the registration of all electors, but the folloWing classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor or trust in this state to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the state, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this state With imprisonment in the penitentiary, unless such persons shall have been pardoned. " (Emphasis supplied. ) ELECTIONS; DISQUALIFIED PERSONS-Conviction on ordinary liquor charge is not a "crime involving moral turpitude" May 23, 1940 Hon. J. L. Haralson, Chairman Board of Registrars Seminole County Donalsonville, Georgia This will acknowledge receipt of your letter of May 20th in which you state that you are now revising the list of registered voters and would like to have my opinion as to whether or not a person convicted in the United States Court on a liquor charge and who has served a year and a day in the penitentiary is qualified or disqualified as a voter under the Georgia law. You must understand of course, that since the Attorney General is authorized by law to render official opinions only at the request of the Governor or one of the officials of the Executive Department of this State, anything which I might say in answer to your inqUiry is only an expression of my personal views upon the matter and not binding upon anyone. Article 2, Section 2, Paragraph 1 of the Constitution of this State (Section 2-701 of the Georgia Code of 1933) provides: 179 "The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office or appointment of honor or trust in this State, to-wit: (1) Those who shall have been conVicted in any court or competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned; (2) Idiots and insane persons. " With reference to the conviction in a Federal Court for the violation of a Federal penal statute, the Appellate Courts of this State apparently have never decided whether such a conviction is within the provisions of Article 2, Section 2, Paragraph I of the Constitution, relating to convictions in courts of competent jurisdiction of crimes involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary. However, in view of the rule that statutory or constitutional provisions depriving persons of their civil rights should be strictly construed, I am inclined to the belief that a conviction in a Federal Court for a Federal offense would not come within the provisions of that section. There is also serious doubt as to whether a conviction "on a liquor charge" constitutes the conviction of a crime involving moral turpitude. In the case of Holloway vs. Holloway, 126 Ga. 459, the Supreme Court of this State in discussing the question of the meaning of the words "moral turpitude", said: "The respondent was sentenced to the penitentiary exceeding two years, and the right of the libellant to a divorce depends upon whether the offense of which he was convicted involved moral turpitude. Turpitude in its ordinary sense involves the idea of inherent passion or vileness, shameful wickedness, depravity. Webster's International Diet. In its legal sense, it includes everything contrary to justice, honesty, modesty or good morals. Black's Law Diet. ; Bouvier's Law Diet. " In the case of Baugh vs. The State, 112 So. 157, the Supreme Court of Alabama held that under the Code of that State making the distilling of liquor a statutory felony, a conviction for this crime was not a conviction for a crime involving moral turpitude and the conviction for such offense could not be shown in impeachment of the credibility of a witness. My personal view therefore, is that a person convicted in the United States Court on a liquor charge and who has served a year and a day in the penitentiary, is not disqualified for that reason as a voter under the Georgia Law. ELECTIONS; DISQUALIFIED PERSONS-Restoration of voting privilege by pardon. November 1, 1939 Ron. F. Holmes Johnson Attorney at Law Gray, Georgia This will acknowledge yours of October 30, 1939, requesting an opinion upon the following matter: "In 1928 A was convicted of the offense of murder and sentenced to life imprisonment. Prior to A's conviction he was a duly registered and qualified voter. After the conviction A did not pay any taxes and of course made no 180 attempt to vote. A was pardoned a short time ago, and wishes to know if it is necessary for him to register again and to pay all taxes to cover the period from the time he was convicted up until now. " The Constitution reqUires as a qualification of each voter that he shall have paid all poll taxes due by him. See Article 2, Section 1, Paragraph 3. Poll taxes are levied under Section 2, Paragraph 1 of the General Tax Act of 1935, (Ga. Laws 1935, page 12) , "upon every inhabitant of the State between the ages of 21 and 60 years etc. " I am of the opinion that notwithstanding a person may be convicted of a crime and may lose his citizenship so that he is prevented from voting, until he has been pardoned and his citizenship restored, nevertheless if the sentence is served in this State such person is still an "inhabitant" of the State and would be subject to poll tax during the period of his imprisonment. I am therefore of the unofficial opinion that the person referred to in your letter must pay all poll taxes which have accrued from the time he was convicted up until now if his name is to be placed on the voters' list. (Emphasis supplied.) Of course you realize that this opinion is purely unofficial and is binding upon no one, for the reason that the Attorney General, under the law, can render no official opinions with reference to the subject matter of your request except upon the request of the Governor. ELECTIONS; JUNE GENERAL-Qualifications of voters. Apr113, 1939 Han. E. D. Rivers, Governor Yours of April 1st requesting an opinion as to the qualifications of voters in the election to be held on June 6th, 1939, received. Section I of H. B. 124 approved February 24, 1937 (Ga. L. 1937 p. 712) provides for: "A State-wide general election to be known as the June general election which shall be held biennially on Tuesday after the first Monday in June, beginning on the above da'te in 1937, which election shall be held in the same manner, with the same formality, and in accordance with all rules and regulations in existence in holding the November general election, and which June general election shall be held in every county and every Militia District therein in the State for the purposes hereinafter specified in detail in this Act. " Tuesday after the first Monday in June-in 1939 is June 6th. Under the provisions of this Act all the rules, regulations and laws and all the constitutional requirements which apply to the November election apply to the June election to be held on June 6, 1939. Section I of Article 2 of the Constitution of tbls State, which is Section 2-603 of the Code provides as follows: "To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months 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 will be noted that to entitle a person to register and vote in any election by the people he (1) shall have resided in the State one year next preceding the 181 election, (2) in the county in which he offers to vote six months next preceding the election, (3) shall have paid all the poll taxes that he may have had an opportunity of paying agreeably to law, (4) that such payments must have been paid at least six months prior to the election in which he offers to vote, (5) except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes. The time fixed for the payment of poll taxes for any year is on or before December 20th of that year. As the election to be held on June 6, 1939 comes within six months after the poll taxes for 1938 were due, the Constitution does not require that the poll taxes of 1938 be paid six months before the election of June 6, 1939, but it does require that all poll taxes must be paid before a person can vote. The Constitution is clear that a poll tax defaulter, that is, one who owes poll taxes, can not vote "at any election by the people". As taxes are assessed as of January 1st of each year, women who registered for the first time after January 1, 1938, and men who became 21 years of age after the same date are not liable for 1938 poll taxes. In the case of Callaway v. Tunnell Hill School District, 51 Ga. App. 101, Judge Jenkins, now of the Supreme Court, writing the opinion states; "All prior poll taxes becoming past due after December 20th of each year must have been paid at least six months prior to the election, unless that length of time has not intervened between the preceding date of maturity of the tax and the date of the election. This exception, however, does not relieve one liable for poll tax on the preceding December 20th from paying it before the election in order to become a qualified voter. " (Emphasis supplied.) Paragraph I of Section I of Article III of the Constitution of this State being Section 2-601 of the Code of 1933 provides as follows: "After the year 1908, elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law." Section 34-106 of the Code of 1933 provides as follows: "The tax collector shall, in each year in which there is a general election to be held for Governor and members of the General Assembly, close the voters' books for said election six months before the date of the election. '' Only those who registered on or before the date of the closing of the voters' books-December 6, 1938-may, if possessing other qualifications, vote in the election of June 6, 1939. The Act creating and establishing "the June general election" states that it shall be held in the same manner, with the same formality and in accordance with the same rules and regulations in existence in holding the November general election. Section 34-401 of the Code of 1933 provides in substance: "The registrars shall, in each year in which a general election is to be held, meet on the 20th of April, or the Monday thereafter if the 20th of April falls on Sunday and begin the work of perfecting a true and correct list of the qualified voters of their county. The list furnished by the tax collector shall be prima facie evidence of the right of the person whose name appears thereon to vote; in any case where the registrars question the right of a party whose' name is furnished by the tax collector, to vote, such person shall 182 be notified of that fact and be given an opportunity to appear before the registrars as provided in Section 34-604. " Section 34-604 provides in substance that if the right of any person whose name appears on the voters' books to have his name placed upon the list of registered voters is questioned by the registrars, said registrars shall give said person at least one day's notice of the time and place of hearing the question; which notice shall be in writing and served upon said person, either personally or by leaving the same at his most notorious place of abode. Section 34-403 of the Code of 1933 provides that the registrars shall complete their work not later than June 1st. This section also provides for the appointment of additional registrars by the Judge of the Superior Court if necessary in order to complete their work within the time required. Section 34-404 provides that the registrars shall prepare a list of qualified voters and file the same with the Clerk of the Superior Court, the list to be alphabetically arranged by militia districts, etc., and that no person "shall vote or be allowed to vote at said general election, or at any party primary to nominate candidates for the offices to be filled at said general election, unless his name is upon the said registration list so filed by said registrars, and no person whose name is not on said li.st shall vote or be allowed to vote at any other election or primary except as hereafter provided in this Title. " In the case of Callaway v. Tunnell Hill School District, supra, the election was held on April28, 1934. The Court in that case held: " (1) That the 1933 poll taxes could be paid at any time before the election. " (2) That the 1932 and all prior poll taxes had to be paid six months before the election." By analogy, the decision in that case is applicable to the election of June 6 next. In view of the foregoing, I am of the opinion that under the Constitution and laws of this State, to entitle a person to vote in the election of June 6, 1939, (1) He must have been registered on or before December 6, 1938, (Code 34106); (2) He must have paid all poll taxes due for 1937, and prior years, on or before December 6, 1938, (Canst. Art. II, Section 1, Par. 3); (3) He must have paid 1938 poll taxes, if any due, in time to have his name placed on the list of qualified voters certified by the Board of Registrars and filed in the office of the Clerk of the Superior Court. (Code 34-401; Art. II, Section 1, Par. 3). ELECTIONS; VOTING RESIDENCE-Persons temporarily absent from their counties by reason of employment by State in Atlanta. July 23, 1940 Honorable E. D. Rivers Governor This will acknowledge your request for an opinion as to the authority of the Board of Registrars of a county to strike the names of persons temporarily employed and temporarily residing at the seat of Government in Atlanta, Fulton County, Georgia, but who are legal residents of other counties, from the list of registered voters of the county of their legal residence. Our Courts, by many decisions, have recognized the distinction between legal and actual residence. A person may be a legal resident of one place and an 183 actual resident of another. He may abide in one state or country without surrendering his legal residence in another if he so intends. See Hardeman v. Hardeman, 179 Ga. 34 (7). There is also recognized in this State a distinction between domicile and residence. Under Section 79-406 of the Code it is provided: "The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention." (Emphasis supplied.) As was said in Worsham v. Ligon, 144 Ga. 707: "Residence and domicile are not synonymous and convertible terms. In order to change his domicile a person must actually remove to another place with a present intention of remaining there as his place of domicile, or, having removed to the new place, avow his intention of remaining there as his place of domicile. " Under the facts set out in your letter, I am of the opinion that a person who accepts employment with the State and whose duties require his presence at the seat of the government, or at some other place other than the county of his residence, and who leaves the county of his residence with the full intention of returning there when he has completed his duties, and without any intention of making any other county in this State his legal residence, does not become disqualified as a voter and is not subject to have his name removed from the list of registered voters in the county of his legal residence. In Bush v. The State, 10 Ga. App. 544, it was said by Justice Russell: "Loss of citizenship does not result from a change of residence not intended to be permanent . . . There must be either the tacit or the explicit intention to change one's domicile before there is a change of legal residence. " Applying the ruling in this last decision to the facts set out in your letter, it does not appear that these persons have changed their domicile, in that they have avowed no intention of permanently residing in Fulton County, and it necessarily follows, therefore, that they have not changed their legal residence. Again in the case of Knight v. Bond and Brother, 112 Ga. 828 (1), it was held: "A man having wife and children with whom he permanently resided in a given county did not, by accepting a contract in another county, renting a furnished house therein, and occupying the same with his family during the period covered by the performance of such contract, acquire a domicile in the latter county, when he did not intend to abandon his domicile in the county first referred to or that he or his family should permanently reside elsewhere, but did intend that his or their stay in the county wherein the contract was to be performed should be temporary only and terminated upon the completion thereof. " See also Alvaton Mercantile Company v. Caldwell, 34 Ga. App. 151 (9) . Under Section 34-401 of the Code the registrars, in each year in which a general election is to be held, are required to perfect a true and correct list of the qualified voters of their county, and they have the authority to question the-right of any person whose name appears upon the voters list furnished by the tax collector to them to have his or her name placed upon the list of qualified voters, but before the registrars may strike the name of such a person off of the voters list furnished by the tax collector they are required to notify such person as provided in Section 34-604 of the Code and give him or her an opportunity to appear before the registrars and be heard why his or her name should not be stricken from the voters list. Under Section 34-402 of the Code the board of 184 registrars have the authority to withhold from the list of registered voters the name of any person which appears upon the list of voters furnished by the tax collector but only when they "are convinced by sufficient legal proof that such person is, in fact, not qualified to vote. " The last quoted language necessarily implies a lack of authority in the board of registrars to arbitrarily withhold a person's name from the list of registered voters. Such authority may be exercised only after sufficient legal proof in the nature of affidavits or witnesses appear before the board of registrars and testify to facts which amount to a legal disqualification of the voter whose name appears on the list taken from the voters book. (Emphasis supplied. ) Therefore, it necessarily follows that if one of the persons described in your letter had his nanie upon the voters book and he has never moved to Atlanta or Fulton County since taking his job with the State with the intention of making Atlanta or Fulton County his home, the board of registrars would have no authority to arbitrarily strike his name from the list of registered voters being prepared by them, and especially would this be true where no evidence had been submitted to the board of registrars as to the fact of said person having moved to Fulton County, Georgia, and having avowed his intention to make Fulton County, Georgia, his home, and having thus changed his domicile and legal residence. ELECTIONS; VOTING RESIDENCE-How changed from one militia district or county to another. July 30, 1940 Honorable Alton C. Mock Rocky Ford, Georgia I am pleased to acknowledge your letter of recent date with reference to the change of your voting residence. Under the law prescribing my duties I am not authorized to render you any official opinion with reference to this matter. I am glad, however, to quote you the law of this State which governs such matters. Section 34-804 of the Code provides: "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent qualification or voters' books and should desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election." This is the procedure which should be followed in order to have your voting residence changed from one militia district to another or from one county to another. ELECTIONS; VOTING RESIDENCE-Transfer of registration from one county to another. September 6, 1940 Honorable Wm. Hicks Key Attorney at Law Monticello, Georgia I am pleased to acknowledge yours of the 4th instant in which you state that the Board of Registrars of Jasper County desire to know whether they can 185 place upon the voters list at this time before the primary on September 11 those who have been registered in other counties of the State but who have moved their citizenship and registration to the permanent registration book after securing a certification from the tax collector that all poll taxes have been paid and that they are qualified in the county from which they have moved. Your letter indicates that you are familiar with the provisions of Code Section 34-804 which prescribes the procedure to be followed by a voter who changes his residence from one county to another or from one militia district to another. I direct your attention to the language of this section: "At which he would be qualified to vote. " This language must necessarily be construed so as to be made to harmonize, if possible, with the requirements of Article II, Section I, Paragraph III of the Constitution which provides in part: "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. " (Emphasis supplied. ) When so construed, I am of the opinion that the registrars would not be authorized to place the name of any person upon the voters list who has removed his residence from some other county unless and until it appears that such person has already resided in the county into which he has removed for a period of at least six months next preceding the date of the general election to be held in November, or who, at the time of the general election in November, will have resided for a period of at least six months next preceding said general election. Any contrary construction of Code Section 34-804 would nullify the provisions of Article II, Section I, Paragraph III of the Constitution relating to the residence requirement of voters. Of course you realize that what is said in this letter is purely unofficial and binding upon no one, for the reason that I am not authorized to render an official opinion upon this subject except upon the written request of the Governor. This letter expresses only my personal views, as based upon the relevant code section and constitutional provision. ELECTIONS; VOTING RESIDENCE-Six months' residence in county required. August 15, 1940 Honorable A. L. Girardin Vice-Chairman Lowndes County Board of Registrars Valdosta, Georgia I am pleased to acknowledge yours of the 13th instant requesting an opinion upon the following question. Where persons having transfers from other Georgia counties issued within the last sixty days apply to the Board of Registrars to have their names placed upon the list of registered voters being prepared by the registrars, but said persons have not or will not have resided within the County of Lowndes six months prior to the election in which they seek to qualify as voters, are the registrars authorized to refuse to place their names upon the list of registered voters? Code Section 34-804 provides: "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent qualification or voters' book and should desire to vote in any election in the district or county into which he removes at which he would be quali- 186 fied to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election. " (Emphasis supplied. ) This section, and especially the language emphasized therein, must be construed in connection with Article II, Section I, Paragraph III of the Constitution which reads in part: "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. " (Emphasis supplied. ) When thus construed, I am of the unofficial opinion that the language "at which he woUld be qualified to vote" as used in Code Section 34-804 means that the name of the,person seeking to be transferred shoUld not be placed by the registrars upon the list of qualified voters if it appears either (a) that such person has not at the time of making application to have his name placed upon the list resided within the County of Lowndes at least six months, or (b) at the time of the general election to be held in this State on November 5, 1940, will not have resided in Lowndes County for a period of at least six months immediately preceding said election. I think this construction must necessarily be placed upon Code Section 34-804, for if we shoUld place any other construction on said section, it would make said section conflict with Article II, Section I, Paragraph III of the Constitution above referred to and accordingly woUld render said code section unconstitutional. I trust that you and your board realize that what is said in this letter is purely unofficial and, therefore, binding upon no one, for the reason that under the law prescribing the duties of the Attorney General, I am not authorized to render official opinions upon questions of this kind except upon the written request of the Governor. The personal views expressed herein, as based upon the pertinent statutes and sections of the Constitution, and any information contained herein is given you in a desire to be helpful, but with the hope that this office will not be involved in any local controversy which might arise with reference thereto. I hope, therefore, that you will treat this letter as confidential. ELECTIONS; VOTING RESIDENCE-Transfer between primaries. April 8, 1940 Hon. Paul J. Varner Attorney at Law Darien, Georgia I am pleased to acknowledge yours of the 6th inst. requesting advice upon the following situation: "John Doe is a qualified registered voter of Liberty County. He votes in Liberty County Primary in February 1940. He subsequently moves to Mcintosh County, moving his registration by proper transfer. Can he vote in the Mcintosh County Primary on April 16, 1940. That is, can the Registrars of Mcintosh County properly refuse to place his name on the list, for the reason that he voted in Liberty County in January?" Section 34-804 of the Code provides: 187 "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent aualification or voters' book and should desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered votets for the district or county into which he has removed, for said election, with the same rights as others registered for said election. " Section 34-9904 of the Code provides: "Any person who shall vote more than once at any election which may be held in any county, or vote out of the county in which he may usually reside, for members of the legislature, or for county officers, unless authorized by law, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than two years. " Section 34-9928 reads: "Any person who shall vote at a primary election more than once or at more than one polling place, shall be guilty of a misdemeanor. " If a person has obtained the proper transfer in the manner provided by Section 34-804, and his name has been placed by the registrars upon the list of registered voters for the district or county into which he has removed, I am of the opinion that he would be qualified to vote in the county primary election of Mcintosh County, even though he had previously voted in a similar primary election in Liberty County. Code Section 34-9904 and 34-9928 seem to be a prohibition only against a person voting in the same election more than once. These sections will not be violated where the voter has properly transferred to another district or county after having voted in a primary election in the first county. Of course, you must realize that what is said herein is purely unofficial, and binding upon no one, for the reason that, under the law prescribing the duties of the Attorney General, I am not authorized to render an official opinion upon these questions except upon the written request of the Governor. ELECTIONS-Qualification after preparation of lists by registrars. .Tune 19, 1939 Honorable .Toe .T. Hurst County Commissioner QUitman County Springvale, Georgia This will acknowledge yours of the 16th instant in which you state that an election is to be held on the 21st of .Tune to determine whether or not the sale of liquor in QUitman County shall be legalized. You desire to know whether per-sons may now pay their poll taxes and vote in said election, although the lists of qualified voters have already been made up by the Board of Registrars. Section 34-801 of the Code provides in part: "All persons whose names appear on "!;he lists of registered voters placed in possession of the election manager, and no others, shall be allowed to deposit their ballots according to law . . . " (Emphasis supplied. ) As a strict legal proposition, therefore, I am of the unofficial opinion that after the registrars have completed their work and have placed the lists of qualified voters in the possession of the election managers there is no way whereby a per- 188 son might pay delinquent poll taxes and get his name upon the lists of qualified voters. In other words, the election managers are supposed to go by the lists prepared by the registrars, rather than by tax receipts, in determining who is entitled to vote in the election. Of course you realize that this opinion is purely unofficial and is binding upon no one. Under the law the Attorney General has no authority, except upon the request of the Governor, to render any official opinion upon a question of the nature submitted in your letter. ELECTIONS; MEMBERS OF GENERAL ASSEMBLY-Vacancy in State Senate, how filled. December 11, 1940 Ron. E. M. Price Attorney at Law Waynesboro, Georgia I have your letter of December 7th with reference to the problem presented by the death of our esteemed friend Judge Joe Law, Ordinary of Burke County. You state that Mr. Milledge Gresham, the new Senator-elect, wants to run for the office of Ordinary, but wants to avoid the risk of having Burke County lose its time to furnish a Senator. Dr. Cail, of Screven County, is now your Senator, but Mr. Gresham is slated to become your Senator when the General Assembly convenes in January. You ask if Mr. Gresham, the new Senator-elect, can take the oath of office as Senator prior to the commencement of his term, so that he can then resign and thus create a vacancy, authorizing the call of an election to fill that vacancy. You also ask if Mr. Gresham could hold both the office of Ordinary and State Senator at the same time. The law does not permit the Attorney General to render an official opinion to private individuals in matters of this kind. I am glad, however, to give you the benefit of my personal views for whatever they may be worth. 1. Can the new Senator-elect take the oath of office as Senator prior to the commencement of his term? I am of the clear opinion that he cannot take the oath of office prior to the convening of the General Assembly at the ten day organization session, because the incumbent holds until that time. Article 3, Section 4, Paragraph 1 (1933 Code Section 2-1501) of the State Constitution. Moreover, the person organizing the Senate (the Secretary) procures the Justice or Judge who administers oaths to members, and that cannot be done prior to the organization session. See 1933 Code, Sections 47-104, 47-105. No one can become a member of the State Senate until he has first taken the oath of office. Article 3, Section 4, Paragraph 5 (1933 Code Section 2-1505), of the State Constitution. It follows, therefore, that prior to the taking of the oath of office the Senator-elect has no office from which to resign, and that since the oath of office cannot be taken before the Senate convenes at the organization session, a Senator-elect cannot "resign" prior to such organization session. While a Senator-elect cannot.resign until after he has taken the oath of office, and while the oath of office cannot be administered prior to the organization session of the Senate, there is nothing to prevent a Senator-elect from publicly disclaiming his rights to the office and from so notifying the Governor prior to the organization session of the General Assembly. If he does this, it is my opinion that the Governor would then be authorized to issue a writ requir- 189 ing an election to be held to fill such office, and the election could be held prior to the convening of the General Assembly at its organization session. If the law were otherwise, then the district for which the refusing Senator had been elected to represent would be without a Senator between the date of the organi- zation session of the General Assembly and the time of calling an election to fill the vacant office. I use the word "vacant" because the law definitely contemplates that a Sena- tor shall be elected for two years, and that he shall serve only until the time fixed by law for the convening of the next General Assembly. Article 3, Section 4, Paragraph 1 (1933 Code Section 2-1501) of the State Constitution. It will be noticed that this last cited constitutional provision definitely limits a Senator's term of office to the prescribed period and does not contain the usual proviso authorizing a holdover until a successor has been elected and qualified. In this connection, see the Act approved March 23, 1939 (Georgia Laws 1939, pages 311- 312), clearly protecting the right of a county to furnish a State Senator under the rotation system. In any event, the Senate is the sole judge of the election, returns, and qualifications of its members. Article 3, Section 7, Paragraph 1 (1933 Code Sec- tion 2-1801) of the State Constitution, and I do not believe that the Senate would question such an election, under the circumstances, inasmuch as it would be grossly unfair to deprive a county of its right to furnish a Senator for any period of time, no matter how short, just because the election was called and held prior to the organization session rather than after the organization session. In view of the foregoing, it is my definite opinion that Mr. Gresham can, if he desires, disclaim his rights as Senator-elect and become eligible to hold the office of Ordinary of Burke County. In answer to your second question, relating to the right of a person to hold both the office of Ordinary and that of State Senator at the same time: Article 3, Section 4, Paragraph 7 (1933 Code Section 2-1507) of the State Constitution provides, in part, that no person holding a military commission, or other ap- pointment, or office, having any emolument, or compensation annexed thereto, under this State, except Justices of the Peace and officers of the militia, shall have a seat in either House. Because of the above constitutional provision, I have serious doubts as to the right of a person to hold both of said offices at the same time, although if a person, while holding the office of Ordinary, is elected to and becomes a mem- ber of the State Senate, he does not thereby vacate the office of Ordinary or render himself ineligible to continue to hold that office; and his right to hold a seat in the State Senate could be judged only by the Senate itself. See McWil- liams v. Neal, 130 Ga. 733; Rainey v. Taylor, 166 Ga. 476. ELECTIONS; MEMBERS OF GENERAL ASSEMBLY-Vacancy in State Senate in Which county or counties of senatorial district held. December 14, 1940 Hon. W. L. McElmurray Waynesboro, Georgia I have your letter of December 11th asking if the special election to choose Mr. Gresham's successor in the State Senate must be held in all the counties of the 17th Senatorial District, or whether it should be held only in Burke County. As I understand the facts, it is Burke County's time to furnish a Senator; and Mr. Gresham, of Waynesboro, was elected at the general election in November, 190 but be now refuses to accept the post, thus necessitating the call of a special election to prevent a vacancy when the General Assembly convenes in January. The precise question has never been passed upon by the courts. The State Constitution provides that "each District shall have one Senator. " 1933 Code, Section 2-1301. Under Section 1 of the Act approved March 23, 1939 (Georgia Laws 1939, page 311) it is provided that primaries for State Senator shall be held only in the county whose turn it is to furnish the nominee under the rotation system. Under Section 2 of said Act is is provided that no person other than such nominee shall qualify or have his name placed upon the ballot as the party's nominee for said office. Under Section 3 of said Act it is provided that unless the Executive Committee or other party organization of the county whose turn it is to furnish such nominee shall, by resolution, disclaim the right of the members of such party in such county to furnish such nominee, no county or the members of any such party in any such county shall furnish such party nominee for the office of State Senator at two successive elections for State Senator in said District, or after having furnished such nominee, again do so until every county in such District has furnished the nominee of such party in its turn. And Section 4 of said Act provides as follows: "Section 4. For the next general election thereafter held for State Senator in the various Senatorial Districts of this State, the nominee of any political party, organization or association as a candidate for such office shall come from the county whose turn it is to furnish such nominee under the rotation system as recognized and in force in such Senatorial District, prior to January 1, 1936. " The 1939 Act, supra, by its terms applies only to political parties and their nominees. But Section 34-1701 of the 1933 Code provides that elections to fill vacancies for members of the General Assembly shall take place under the authority of a writ. of election issued by the Governor "to the ordinary of the county where the vacancy occurs. " The words "ordinary of the county where the vacancy occurs" could, however, as applied to elections to fill vacancies in the State Senate, be construed to mean that a writ of election must be issued to the ordinary of each county within the Senatorial District in which the vacancy occurs. Regardless of which view is taken about this matter, in the last analysis, the Senate itself is the sole judge of the "election, returns, and qualifications of its members." Article 3, Section 7, Paragraph 1 of the State Constitution (1933 Code, Section 2-1801). See Rainey v. Taylor, 166 Ga. 476. ELECTIONS; WHERE, WHEN AND HOW HELD-Hours polls are kept open. December 23, 1940 Hon. Byron Anglin Richland, Georgia I am pleased to acknowledge your letter of December 17th, requesting information as to the election laws which control the opening and closing of the polls. You state that you are of the opinion that there should be a general law allowing all precincts of equal size or larger than the county seat to have the privilege of remaining open until6 P. M. Our statute on this subject as codified in section 34-1302 now reads: 191 "The day of holding such elections shall be Tuesday after the first Monday in November in the even-numbered years, and the time of day for keeping open the elections shall be from seven o'clock A. M. to six o'clock P. M. at the courthouse, and from eight o'clock A. M. to three o'clock P. M., at the precincts. In incorporated towns and cities having more than one election precinct situated in the corporate limits of such incorporated town or city, such precincts, at all elections held, shall be kept open from seven o'clock A. M. to six o'clock P. M. and when there are in such incorporated towns or cities precincts other than the courthouse precinct for the holding of elections, the elections in such precincts shall be kept open for the same time and during the same hours as provided by law for keeping open elections at the courthouse." You will note that this statute provides that in incorporated towns and cities having more than one election precinct situated in the corporate limits, such precinct may be kept open from 7 A. M. to 6 o'clock, P. M. If Richland has only one precinct, and you desire to remedy the situation so as to provide for the keeping open of said precinct until 6 P. M., you could easily amend this code section so as to provide that "where, in a county, there are cities having a population according to the last official federal census of an equal or greater number of persons than there are in the county seat the polls in said precinct shall remain open for the same period of time as those at the county seat." Should you desire an amendment drawn to carry out your ideas about this matter this office will be glad to serve you. ELECTIONS; WHERE, WHEN AND HOW HELD-Fees of Ord,inaries in elections. May 11, 1939 Hon. R. 0. Barksdale Ordinary, Wilkes County Washington, Georgia This will acknowledge ;;ours of the 8th instant requesting an opinion as to the proper construction of that portion of the Act approved March 4, 1939, relating to the fees of ordinaries, reading as follows: "For preparing all papers, appointing managers, consolidating returns in general and special election, each ballot box. _____ ._. ____ $3. 00. " The particular question you desire answered is whether an ordinary in a county having fifteen militia districts, or polling places, would be entitled under this provision of the statute to $45.00 for holding the coming general election in June. I am of the unofficial opinion that the construction that you have placed upon the statute is correct. That is, an ordinary would be entitled to $3.00 for the preparation of papers, appointing managers and consolidating returns in each election precinct. The statute, I think, must be given this construction, for the reason that in some precincts more than one ballot box is used, yet the returns of the precinct are not consoli.dated upon the ba~is of each box but upon the basis of the precinct as a whole. See Sections 34-1303 and 34-1303 (8), (9) of the Code. Where more than one ballot box is used in a precinct therefore, the ordinary is entitled to only one fee of $3. 00 for the precinct. Your letter indicates that only one ballot box is used in each precinct and I am therefore of the opinion that when you have performed the services referred to in your letter you will be entitled to total fee of $45.00. 192 ELECTIONS; WHERE, WHEN. AND HOW HELD-Election blanks, how furnished. April 25, 1939 Honorable J. M. Tomlinson Ordinary, Dougherty County Albany, Georgia This will acknowledge yours of the 22nd instant requesting advice as to whether it is the duty of the State, or of the county, acting through you as Ordinary, to furnish the ballots to be used in the election of June 6, 1939. Under the provisions of Chapter 34-14 it is the duty of the Governor to furnish the several ordinaries all blank forms necessary for general elections including tally sheets and blank lists for voters. After these blank forms and lists are received, it is the duty of the Ordinary to provide and furnish "at the expense of the county" official ballots for the election, provided your county is one which has adopted the Australian ballot law (see Code Section 34-1904; Chapter 34-19). The ballots are required to be printed in accordance with the provisions of Code Section 34-1904. If there is any further information desired by you, please do not hesitate to call upon me. I shall be glad at all times to help you in any way possible. ELECTIONS; WHERE, WHEN AND HOW HELD-Expense of general elections imposed on counties, .not the State. April 27, 1939 Honorable B. H. Chappell County Attorney, uscogee County Court House Columbus, Georgia This will acknowledge receipt of your letter of April 20 in which you inquire if there is any provision of law whereby the entire cost of the general election to be held in June for the purpose of voting on constitutional amendments falls upon the several counties or if there is any provision of law whereby the State shares any of the expense of such an election. The Attorney General is authorized to render an official opinion only when so requested by the Governor or by one of the officials of the Executive Department of this State. Therefore, anything which I might say in reply to your inquiry must be regarded as merely an expression of my personal views on the subject and binding upon no one. The act providing for the June general election (Acts of 1937, p. 712) contains in section 1 thereof the following language: "In addition to the general election created under and by virtue of an act approved August 14, 1914 (Act of 1914, p. 47-48), there is hereby created and established a statewide general election to be known as the June general election which shall be held biennially on Tuesday after the first Monday in June, beginning on the above date in 1937, which election shall be held in the same manner, with the same formality, and in accordance with all rules and regulations in existence in holding the November general election, and which June general election shall be held in every county and every Militia District therein in the State for the purposes hereinafter specified in detail in this act. " There is no provision of the above ouoted act specifically dealing with the expense of the said election. Therefore, the above quoted section applies and the 193 laws governing the expense of holding the November general election also govern the June general election. With the exceptions of the Act approved March 24, 1939, dealing with the printing of the text and summaries of proposed constitutional amendments, Section 34-1401 of the Code of 1933 requiring the Governor to furnish the several ordinaries blank forms necessary for said elections and Section 34-1402 requiring the Governor to furnish the proper authorities of the several counties sufficient blanks, tally sheets and blank lists for voters, I find no provision of the law of this State imposing the expense of the November general election or part thereof upon the.State; nor do I find any provision of the general Appropriation Act of 1937 (Acts of 1937, pages 54-72) appropriating money for such purpose. On the contrary, all provisions of the law which specifically deal with any of the expenses of a general election seem to impose this expense upon the counties. As illustrative of this, see Code Sections 34-1001, 34-1303 (13) , and as to counties which have, by the recommendation of two consecutive grand juries of said counties, put into force and operation what is called the Australian ballot system, see Code Sections 34-1906, 34-1904, 34-1902, 34-1911. ELECTIONS; WHERE, WHEN AND HOW HELD-Write in ballots. October 17, 1940 Hon. Roy V. Harris Attorney at Law 1008 Southern Finance Building Augusta, Georgia This will acknowledge receipt of your letter of October 11th in which you state that a question will arise in your county as to whether in a county where the Australian ballot system is in effect, the voter can write in the name of an independent candidate and strike the name of a Democratic nominee where the independent candidate has not filed with the Ordinary 15 days in advance of the General Election. The Code Section to which you apparently refer is Section 34-1904 of the Georgia Code of 1933 which provides in part: "In all elections other than primary elections held under the auspices of a political party, it shall be the duty of the ordinary to provide and furnish at the expense of the county, and in case of purely municipal elections, at the expense of the municipality, official ballots for all such elections, having printed thereon, in separate columns, the names of the candidates of each political party, designating the names of the political party to which they belong, and also the names of any other candidates for the offices to be filled at said election; and in case of election for President and Vice President of the United States, the names of the candidates for such offices may be added with the electors and party designation: Provided, however, it shall not be the duty of said officers to place the names of any candidates on said official ballots, unless notice of their candidacy shall be given in the following manner, to-wit: . . . All candidates for district and county offices, either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 15 days before the regular election . . . " You will notice that while Section 34-1904 requires candidates for county Offices to file notice of their candidacy with the ordinary of the county at least 194 15 days prior to the regUlar election before it becomes the duty of said officer to place the name of such candidate on the official ballot, this section does not prohibit a qualified voter from striking the name of a Democratic nominee appearing on the official ballot and writing in the name of an independent candidate who has not filed notice with the ordinary 15 days before the regular election. While I do not find that this specific question has been before the appellate courts of this State, the overwhelming weight of authority is that where there is no express statute prohibiting a person from voting for a candidate whose name is not upon the official ballot, a voter may properly write in the name of a candidate whose name does not appear upon the official ballot and vote for such candidate. Even in those jurisdictions where the Legislature has by statute sought to prohibit the voting for a candidate whose name is not upon the official ballot, the majority view seems to be that a statute prohibiting the writing in of names of candidates upon the ballot is unconstitutional. See, 18 Am. Juris. 307, Section 191. You understand of course, that since the question you ask is not one upon which I am authorized to render an official opinion, anything which might have been said in this letter must be considered as merely an expression of my personal views and not binding upon anyone. ELECTIONS; PRESIDENTIAL ELECTORS: Eligibility. October 9th, 1940. Hon. James Walter Mason, Attorney at Law 1220 Healey Bldg., Atlanta, Georgia. I am pleased to acknowledge yours of the 4th instant, with reference to the eligibility of the presidential electors who will be chosen by the people at the November election. I appreciate your concern in this matter, and your letter has caused me to check the constitutional provision, the statutes and the court decisions very carefully in order to determine the eligibility of these electors. Article 2, Section 1, Clause 2 of the Federal Constitution provides in part as follows: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." It will be observed that only those persons holding an office of profit or trust under the United States, and Senators or Representatives are disqualified to serve as electors. Of course, state and county officers cannot be said to be holding an office of profit or trust "under the United States" as these officers hold their offices under the state. (Emphasis supplied. ) The Democratic nominees for presidential electors are: State at Large_____________________ Clark Howell State at Large_____________________ Abit Nix 1st Congressional District________ . John J. Bouhan 2nd Congressional District. ______ .Henry Mcintosh 3rd Congressional District_ _______ Columbus Roberts 4th Congressional District_________ Quimby Melton 195 5th Congressional District_________ Ivan Allen, Sr. 6th Congressional District_________ R. Earl Camp 7th Congressional District_________N. A. Morris 8th Congressional District______ .___ o. E. Raynor , 9th Congressional District_________ Mrs. Fred Hayes lOth Congressional District________ John C. Evans So far as I know, none of these persons hold an office of profit or trust "under the United States. " If you have any information to the contrary I shall be glad for you to write me and I will check the same. ELECTIONS; MEMBERS OF CONGRESS--Vacancy. Qualifications of voters. July 15, 1939 Hon. E. D. Rivers, Governor In compliance with your request that I advise you as to the eligibility of voters in the special election to be held on August I, 1939 throughout the Fourth Georgia Congressional District to fill the vacancy occasioned by the death of Congressman E. M. Owen, I am pleased to advise you as follows: 1. Poll taxes are assessed and levied as of January 1st of each year and become in default after December 20th of that year. 2. No one who is a poll tax defaulter can legally vote in any special or general election by' the people. Callaway v. Tunnel Hill School District, 51 Ga. App. 101 (2). 3. Male citizens who became 21 years of age after January 1, 1938 are not due any poll taxes for 1938. 4. Female citizens who registered for the first time after January 1, 1938 are not due any poll taxes for 1938. 5. Any one who will become 21 years of age on or before the day of a special election may register before the call or within five days after the call for the special election and vote therein. 6. Those who were legally registered and qualified to vote in the general election of June 6, 1939 and who pay their 1938 poll taxes (if not already paid) within five days after the call for the special election are entitled to vote in such special election. In view of the foregoing, I am of the opinion that any person whose name appears on either of the two lists compiled by the registrars [(I) the list used at the June 6, 1939 general election as purged by the registrars for the special election and (2) the list containing the names of persons becoming 21 years of age on or before the day of the special election and females who have not previously registered for voting and who did register within five days after the call of the special election] is entitled to vote in the special election of August I, i939. ELECTIONS; SPECIAL-Qualifications of voters. November I, 1939 Ron. E. D. Rivers, Governor Your letter of recent date reading as follows received: "Please furnish me an opinion as to who is eligible to vote in special elections. " In this opinion it is assumed that the special election involved will be held before the registrars have prepared and filed the list of qualified voters to be 196 used in the general election of November 5, 1940, and based on that assumption, I beg to advise as follows: 1. Poll taxes are assessed and levied as of January 1st of each year and become in default December 20th of that year. 2. No one who is a poll tax defaulter can legally vote in any special, primary or general election. Callaway v. Tunnel Hill School District, 51 App. 101. 3. Males who became twenty-one years of age after January 1, 1939, are not due any poll taxes for 1939. 4. Females who registered for the first time after January 1, 1939, are not due any poll taxes for 1939. 5. Anyone who will become twenty-one years of age on or before the day of a special election may register before the call or within five days after the call for the special election and vote therein. Likewise, females who have not registered previously may register before the call or within five days after the call and vote therein. 6. Those who were legally registered and qualified to vote in the general election of June 6, 1939, and who pay their 1939 poll taxes within five days after the call for a special election are entitled to vote in such special election, provided it is held at least six months before the November general election, but if such special election is held within six months of the November 5, 1940, general election, all poll taxes must have been paid and the person proposing to vote must have been legally registered six months before said November general election. 7. Under a recent decision of the Supreme Court and the general laws relating to special elections a person may, before the call for a special election or within five days after the call, pay his 1939 poll taxes and all other poll taxes then due and register and become a qualified voter in the special election when such payment and registration are six months before the next general election. Sims, et al, v. Kennedy, et al, 184 Ga. 822. 8. It is impossible within the limited range of this opinion to discuss every problem that may arise and as stated above what is said is to be construed and applied with respect to special elections held after December 20, 1939, and before the registrars complete their work of compiling a list of qualified voters for the general election of-1940 and file it with the Clerk of the Superior Court. December 20, 1939, is the time fixed by law for the payment of poll taxes for the year 1939, and all persons who fail to pay poll tax by that date will be tax defaulters and cannot vote in any election, general or special, so long as the default remains. 9. If the special election is held before December 20, 1939, poll taxes for 1939 do not have to be paid before voting in the election. ELECTIONS; COUNTY OFFICERS-County School Superintendent cannot be voted on by residents of an independent school district. January 20, 1940 Honorable James R. Davis, Jr. Vice-Chairman Upson County Board of Education Thomaston, Georgia I am pleased to acknowledge yours of the 18th instant requesting my opinion as to whether or not persons residing in the independent school district of Thomaston are eligible to vote in the county primary election for county school superintendent. 197 Section 32-1002 of the Code provides: "All county superintendents of schools shall be elected by the qualified voters of their respective counties quadrennially on Tuesday after the first Monday in November, for terms of four years beginning on tile first day of January following the day of election. Each shall hold office until his successor is elected and qualified: Provided, if there is in any county one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in any primary or election for the county superintendent. But this section shall not disqualify registered, qualified voters residing in the limits of a quasi-independent school district from voting in any primary or election for county superintendent of schools. " (Emphasis supplied.) It will be noted that the language emphasized above serves to disqualify persons residing in independent school systems from voting in an election for county superintendent of schools. There have been several so-called "general laws with local application" enacted amending this general law so as to provide that in counties of certain population voters residing in independent school systems may vote for the county superintendent. However, I do not find that any of these acts apply to a county having a population of 19, 509, which was the population of Upson County according to the last Federal census of 1930. Of course, you realize that what is said in this opinion is purely unofficial and is binding upon no one. I think, however, that your question is clearly and definitely answered by the provisions of the Code Section above quoted. ELECTIONS; COUNTY OFFICERS-County School Superintendent's election governed by general law prohibiting participation by voters in independent school district, hence a special law providing differently is unconstitutional. January 13, 1940 Honorable Lamar Wiggins Representative, Dodge County Eastman, Georgia I am pleased to acknowledge yours of the 8th instant in which you state that the Dodge County Democratic Executive Committee has met and set February 20 as the date of the county primary, and that they also voted to allow the City of Eastman to vote in the race for County School Superintendent, although the city has an independent school system. You request my opinion as to the legal right of persons residing in the independent school district to vote for County School Superintendent. What is said in this opinion must be treated as purely unofficial and binding upon no one for the reason that I do not have the authority, as Attorney General, to render an official opinion with reference to the question asked except upon the written request of the Governor. I am glad to give you the benefit of the law on the subject and my own personal views with reference thereto. The general law upon the subject of the election of County Superintendents of Schools is set out in Code Section 32-1002, as follows: "All county superintendents of schools shall be elected by the qualified voters of their respective counties quadrennially on Tuesday after the first Monday in November, for terms of four years beginning on the first day of January following the day of election. Each shall hold office until his successor is elected and qualified: Provided, if there is in any county one or 198 more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in any primary or election for the county superintendent. But this section shall not disqualify registered, qualified voters residing in the limits of a quasi-independent school district from voting in any primary or election for county superintendent of schools." (Emphasis supplied.) You will note that the proviso emphasized above prohibits voters residing in independent systems from voting in any primary or election for the county superintendent. It appears that the General Assembly in 1931 (Ga. L. 1931, page 130) , passed an act, Section 2 of which provides: "In all counties in this State having a population of not more than 23,000, and a population of not less than 21, 118, all residents of municipal corporation therein who are duly registered and qualified voters of the county and entitled to vote for members of the General Assembly may vote for the office of county superintendent of schools, although such voters may reside in a municipality which maintains a municipal school system independent of the county school system." In connection with this statute it should be observed that the county of Dodge, according to the official United States Census of 1930, had a population of 21, 599 which would bring it within the purview of this local act. Therefore, if said act is constitutional, persons residing in the independent school system of Eastman would be qualified to vote in a primary election for county school superintendent. The power to declare a statute unconstitutional resides in the courts, and not in the Attorney General. The courts have many times declared similar statutes unconstitutional, as being violative of Article 1, Section 4, Paragraph 1 of the Constitution which provides in part that: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. " Since Code Section 32-1002 is a general law, and the Act of 1931 above referred to is in its nature a special law it would seem to be clearly violative of the section of the Constitution above referred to. ELECTIONS; COUNTY OFFICERS-Ordinary, vacancy in office. Qualifications of voters. December 18, 1940. Mrs. Frances McE. Cates, Tax Commissioner Burke County, Waynesboro, Georgia I am pleased to acknowledge yours of the 14th instant, in which you state that a special election has been called to fill the vacancy in the office of Ordinary of Burke County, to be held January Bth, 1941. You request a ruling from me as to voters qualified for this election. The law with reference to the qualifications of voters in special elections is set out in Code Section 34-407. This statute should, of course, be construed in connection with and in the light of Article 2, Section 1, Paragraph 3 of the Constitution (Code Section 2-603) . When thus construed, no person is entitled to register and vote in a special election who has not: (1) Resided in the State one year next preceding the election. (2) Resided in the county six months next preceding the election. 199 (3) Paid all poll taxes that he may have had an opportunity of paying agreeably to law at least six months prior to said election, except that in the election in question, since it is being held on January 8th, 1941, and thus "within six months from the expiration of the time fixed by law for the payment of" poll taxes for the year 1940, poll taxes for the year 1940 do not have to be paid six months before the date of said election. Poll taxes for the year 1940, however, would have to be paid before a person would be qualified to vote in said election, as our Court of Appeals held in the case of, Callaway vs. Tunnel Hill School District 51 Ga. App. P. 101 (2) that the exception as stated in Article 2, Section l, Paragraph 3 of the Constitution as follows: "Except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes," does not relieve one liable for poll tax on the preceding December 20th, from paying it before the election, in order to become a qualified voter. I am of the opinion that it is your duty as Tax Commissioner, acting under the authority of Code Section 34-407 to leave your tax books open for five days after the call of said special election, during which period persons who desire to vote in said election shall have the opportunity to pay their 1940 poll taxes. At the end of five days it is your duty to close your voters books and within five days file with the county registrars an accurate and complete list of all the names in said voters book since the close of the voters book for the last general election, etc. The registrars are then required to make up a supplemental registration list in the manner prescribed in said statute. Of course, it is now too late for any person to pay any past due poll tax for previous years and qualify 'as a voter in said election, as the constitutional provision above cited requires that said poll taxes for previous years must have been paid six months prior to the election on January 8th, 1941. In order for persons who had previously registered and who were due poll taxes for 1939 or previous years to be qualified as a voter in said election, it must appear that said persons paid any past due poll tax at least six months prior to January 8th, 1941. Also during the five days after the call of said election that your voters book remains open any person who had not previously registered and who was not due any poll taxes for previous years could register and vote in said election. Of course you realize that what is said in this letter is purely unofficial and binding upon no one, for the reason that under the law prescribing the duties of the Attorney General, I am not authorized to render official opinions upon questions of this kind except upon the written request of the Governor. Despite these limitations I sincerely trust that the information contained herein will be of help to you. ELECTIONS; COUNTY OFFICERS-Ordinary, vacancy in office. When election held. February 12, 1940 Honorable J. V. Merritt Clerk of Superior Court Forsyth County Cumming, Georgia I am pleased to acknowledge yours of the lOth instant advising that a special election is to be called to fill the vacancy in the office of Ordinary of Forsyth County caused by the death of JudgeR. L. Bagley, and that you are to have 200 your county primary election on March 20, 1940. You request my opinion as to whether there is any legal reason why the special election to fiJI the vacancy in the office of Ordinary may not be held at the same time as the county primary election. I am sure that you are familiar with the provisions of Code Section 24-1707, which reads: "When a vacancy occurs in the office of ordinary in any county it shall be the duty of the clerk of the superior court of said county, on the fact of said vacancy being made known to him, to order an election to take place within 20 days from the date of said order, and notice thereof shall be given by publication in the newspaper in which the ordinary of said county publishes his citations, and until the vacancy is filled the said clerk of the superior court shall perform all the duties which the ordinary could perform as clerk, and no more. " There is no statute which prohibits the holding of a special election for the purpose of filling a vacancy in a county office at the same time as a county primary. Accordingly, I am of the opinion that if the special election for the filling of the vacancy in the office of Ordinary is held on March 20, 1940, and said date is within twenty days from the date of the order calling said special election, it may be held on said date. Of course you realize that what is said herein is purely unofficial and is binding upon no one, for the reason that under the law prescribing my duties, I am not authorized to render an official opinion upon questions of this kind except upon the written request of the Governor. Notwithstanding these limitations, I am delighted to give you these, my personal views of the law upon the subject. ELECTIONS; COUNTY OFFICERs-Sheriff, vacancy in office. When held. Qualifications of voters. March 5, 1940 Mrs. E. B. Spivey Ordinary Chattahoochee County Cusseta, Georgia I am pleased to acknowledge yours of the 2nd instant in which you state that a special election to fill a vacancy caused by the recent death of your sheriff has been called for March 12th-the same day that your 1940 county primary election is to be held. You request my opinion upon the following questions: 1. Can this election to fill said vacancy be held in connection with the primary? Answer: There is no statute which would prohibit the holding of this special election upon the same day as the primary election is held, provided the necessary time between the calling of said election and the holding thereof shall have elapsed, that is, if notice of said special election has been given as required by statute for at least twenty days previous to March 12th, it may be held upon the same day as the primary election. (See Sections 24-2704; 24-2803, Code of 1933.) 2. Can the names of those who have qualified for the unexpired term be attached to the primary ballot, eliminating an extra ballot? Answer: In view of the fact that the county primary election is held at the expense of the party authorities holding the primary (Code Section 34-3216) , 201 whereas the expense of holding the special election to fill the vacancy in the office of sheriff must be paid by the county, I am of the opinion that the same ballot cannot be used in both elections. 3. Will it be necessary to have separate papers for making returns otherwise than a consolidated return mailed to the Secretary of State so the one elected could be commissioned? Answer: For the reasons stated in answer to Question 2, I am of the opinion that it will be necessary to have separate election papers for making returns. 4. Would it be necessary to have two lists of voters, or use the list of qualified voters of the primary? Answer: I am of the opinion that the list of qualified voters as prepared by the county registrars for the county primary election could be used in the special election, provided that the names of all persons who registered "within five days after the call of the special election" and who, in accordance with the provisions of Section 34-407 of the Code, were entitled to have their names placed upon the list of qualified voters, were actually placed by the registrars upon said list. 5. The primary is under the jurisdiction of the County Democratic Executive Committee, and if they would cooperate, agreeing, would their rulings be legal in this special election, or would the county have to bear part of the expense? Answer: The County Democratic Executive Committee would have no authority to promulgate any rules or regulations with respect to the special election, as this election is governed by law. Under Sections 34-3209 and 34-3210 of the Code, any rules or regulations promulgated by the County Democratic Executive Committee with reference to the primary election would be valid and binding as to said primary election. See also Code Section 34-3218. For your general information, I am also inclosing you herewith a copy of an opinion with reference to the general qualifications of voters in special elections, and another opinion with reference to the qualifications of voters in county primary elections. Of course you realize that the views expressed by me in this letter upon the questions asked are purely unofficial and are, therefore, not binding upon you, the County Democratic Executive Committee, or any voter in said election. The information contained in this letter is given you in a desire to be helpful and cooperative, and I assure you that if there is any additional information that I can give you, I shall be pleased if you will call upon me for the same. ELECTIONS; COUNTY OFFICERS-Superior Court Clerk, vacancy in office. Qualifications of voters. Hon. c. J. Owens April 8, 1939 Chairman, Board of Registrars Coweta County Newnan, Georgia This will acknowledge your request for an opinion as to who will be qualified to vote in the special election to be held on April 29th for the purpose of filling a vacancy in the office of Clerk of the Superior Court of Coweta County. Generally speaking, the list of qualified voters in said election is required to be prepared in accordance with the provisions of Code Section 34-407. This section provides: 202 "34-407. Additional registration list; preparation, etc. ; special elections. -Any person who has registered for any general election shall, if otherwise qualified to vote at any special election before the next said general election, be listed and entitled to vote at such special election. Within five days after the call of said special election, the tax collector shall close his voters' books, and within five days thereafter he shall file with the county registrars an accurate and complete list of an names signed in said voters' books since the close of the voters' books for the last general election and not before filed with said registrars for the last general election, said list to be made out and arranged as provided in Section 34-201. Within five days thereafter the registrars shall file with the clerk of the superior court said supplemental registration list showing the names of additional voters who are entitled to vote at said special election, and any person whose name appears upon said list may vote at such special election and at any primary to nominate candidates for offices to be filled at such special election, but the registrars shall purge said list before filing it of all persons who will not be qualified to vote at said election in the same manner as preparing and purging the registration list for the general election. It shall be the duty of the registrars 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 poll taxes becoming due subsequent to the last general election, and it shall be the duty of the registrars to furnish to the managers of said special election two lists, one composed of the names of voters entitled to vote by reason of their registration for the last general election, and the other made up of the names of those entitled to vote by their subsequent registration as hereinbefore provided for, and if a primary is held for said special election, it shall be the duty of the registrars to furnish said lists also to the managers of said primary in time for use in said primary, and no one shall be entitled to vote either in said special election or in said primary unless his name is upon one of the lists furnished by the registrars. " Poll taxes are levied as of January 1st of each year, and become in default after December 20th of each year. No one who is a poll tax defaulter can legally vote in any special or general election by the people (See Callaway v. Tunnel Hill School District, 51 Ga. App. 101) . Male citizens who became twenty-one years of age after January 1, 1938, and any female citizens who registered for the first time after January 1, 1938, are not due any poll taxes for that year. Anyone who will become twenty-one years of age on or before April 29th, or any female who has never previously registered, may register before the call of the special election or within five days after the call, and vote in said election, without the payment of any poll taxes. Those who were legally registered and qualified to vote in the general election of last November, and who pay their 1938 poll taxes within five days after the call of the special election, are entitled to vote in the election, provided they are not otherwise disqualified on account of conviction of crime whose penalty is disfranchisement, insanity, etc. (See Code Section 34-203) . Of course, in any opinion of this nature, it is not possible to cover all contingencies or questions which might arise. Should any question not clarified by this opinion come up, please do not hesitate to call on me for further advice or information. 203 ELECTIONS; COUNTY OFFICER&-Tax Collector, vacancy in office. Qualifications of voters. November 20, 1939 Honorable Luther Morris, Ordinary Rockdale County Conyers, Georgia I am pleased to acknowledge yours of the 18th instant in which you state that you have called a special election for December 14, 1939, for the purpose of electing a tax collector for the county, the present office holder having resigned. You request "A ruling on who is qualified to vote in this election". Generally speaking, I am of the opinion that any person whose name appears upon the list of registered voters prepared by the registrars and filed with the Clerk of the Superior Court for the last general election of June 6, 1939, and who has not become subsequently disqualified, as well as aU persons who within five days from the date of the call of said special election legally registered with the tax collector or paid any delinquent poll taxes during said period, and whose names appear upon his supplemental or additional list of voters as made up and prepared pursuant to Section 34-407 of the Code, may vote in said election. In other words, the provisions of Code Section 34-407 are controlling as to the qualification of voters in special elections. If a person's name appeared upon neither of the lists as prepared in accordance with the requirements of this Code Section, he is ineligible to vote in a special election. If a voter's name does appear upon one or the other of these lists, he is eligible to vote in said election. Your request was very general, and if my answer does not cover any particular question you have in your mind I shall be glad to hear from you further and to furnish you any additional information that I can. Of course, you must realize that what is said in this letter is purely unofficial as I am not authorized to render any official opinion upon the questions propounded. Being unofficial, what is said in this letter is binding upon no one. Notwithstanding this, I wish to assure you that I am always delighted to be of any service to any of the county officers at any time that I can, and shall be glad to give you any additional information with respect to the qualifications of voters in the election referred to. ELECTIONS; JUSTICES OF THE PEACE-Notice of candidacy. November 25, 1940 Hon. G. A. Garrett, Ordinary Walton County Monroe, Georgia I am pleased to acknowledge yours of the 18th instant directing my attention to Code Section 34-1904 which relates, among other things, to the notice required to be given by candidates for district and county officers. You request my opinion as to whether, under this section, any candidate for the office of justice of the peace or constable who had not notified the ordinary at least 15. days before the date of the election should have his name placed upon the ballot. Code Section 34-1904 provides in part: "All candidates for district and county offices, either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy, with the ordinary of the county at least 15 days before the regular election. " 204 This statute prevails in those counties which have adopted the Australian ballot law. I assume from your letter that your county has adopted said statute. In the case of Long vs. The State 127 Ga. 285, it was held that an election for justice of the peace in a militia district is a state election, and it was said by Justice Atkinson: "While a justice of the peace might possibly be classed as in a certain sense a county officer, this is really not the true way of designating the office that he holds. The justice court over which he presides is a part of the State judicial system. It is a constitutional court, and there is constitutional provision for his election by the legal voters of his district. He is an officer of the State. While his functions can be exercised only in a given county, and generally in the district of his residence only, he is nevertheless an officer of the State. " Notwithstanding these decisions, and notwithstanding the fact that Code Section 34-1904 provides in part that "all candidates for national and state offices . . . shall file notice of their candidacy . . . with the Secretary of State at least 30 days prior to the regular election, " I understand from the office of Secretary of State that candidates for the office of justice of the peace and constable have never given notice of their candidacies to the Secretary of State, but have established an unbroken custom of giving notice of their candidacy to the ordinary. At any rate, certainly the ordinary shoUld not place the name of any candidate upon the ballot who had not either given notice of his candidacy to said ordinary or to the Secretary of State. The same rUle woUld apply to constables. Of course you realize that what is said in this letter is purely unofficial for the reason that under the law prescribing the duties of the Attorney General I am not authorized to render official opinions upon matters of this kind except upon written request of the Governor. What is said herein expresses only my personal opinion, as based upon the statutes, and being unofficial is binding upon no one. I have given you my personal opinion upon this matter in a desire to be helpful and I trust that the information will serve its purpose. ELECTIONS; JUSTICES OF THE PEACE-Vacancy in office, how filled. March 26, 1940 Hon. J. L. Herndon Coroner, Ware County Waycross, Georgia I am pleased to acknowledge receipt of your letter of recent date inquiring about the ballots and the manner of holding a special election for Justice of the Peace. Section 24-406 of the Code of 1933, in reference to special elections for Justice of the Peace, provides in part as follows: "On the designated day such Justice of the Peace, with two freeholders, shall hold an election in the same manner that a regular election for Justice of the Peaceis held, and shall duly certify the election to the Governor who shall commission the person elected for the unexpired term. " (Emphasis supplied.) And Section 24-407 provides that if there is no Justice of the Peace in the district, the Ordinary of the county shall hold an election in the same manner. 205 The law in reference to the manner of holding a regular election for Justice of the Peace is set forth in Section 34-2704 of the Code of 1933, which is as follows: "The laws governing the election for members of the General Assembly shall govern in the elections for Justice of the Peace, whenever they may be applied and are not inconsistent with this chapter." In other words, special elections for the election of Justice of the Peace shall be held in the same manner as elections held for members of the General Assembly, as nearly as the law applicable thereto can be applied to elections for Justice of the Peace. I trust that this fully answers the questions you have in mind. But I want to remind you that this is given for your own personal information and cannot be considered as official, as the Attorney General is authorized to render official opinions only to certain departments of the State. ELECTIONS; PRIMARY-Time of holding county primary. January 15, 1940 Honorable Hughes Spalding County Attorney 434 Trust Company of Georgia Building Atlanta, Georgia I am pleased to acknowledge yours of the 11th instant in which you state the Fulton County Democratic Executive Committee will have before it in a very short time the problem of setting a date for the 1940 Democratic primary for the nomination of candidates for county officers in Fulton County. You request my opinion as to whether or not said committee may legally provide for the holding of a primary at a time prior to the date when the registrars shall have completed the registration list of those qualified to vote in the general election in November 1940. As you know, the duties of the Attorney General are prescribed by law, and under the law I am not authorized to render an official opinion upon the question set out in your letter except upon the written request of the Governor. Consequently anything that is said in this letter must be taken as purely unofficial and as binding upon no one. Notwithstanding the limitations with respect to my official duties, I am always glad to be of any assistance that I can to the election officials of my party and to give any information called for by them which it is within my power to do and which under the proprieties of each particular case I may do so consistent with my official duties. Code Section 34-401 makes it the duty of the registrars in each year in which a general election is to be held to meet on the 20th day of April, or on Monday thereafter if the 20th of April falls on Sunday and begin the work of perfecting a true and correct list of the qualified voters of their county. Further provisions of this section prescribe how the list shall be made up and other details with respect to the work of the registrars. Section 34-402 prescribes what names are required to be entered on the list being prepared by the registrars, and section 34-403 provides that the registrars shall complete their work "not later than June 1". However, there is a further provision that vests the judge of the superior court with the authority to appoint assistant boards of registrars and for the extention of the time within which they are to complete their work until "the 20th day of August during the year in which general elections are held". 206 Section 34-404 provides for the filing of the list with the clerk of the superior court when it is completed and requires that the names of the voters be listed alphabetically and according to militia districts, wards, etc. Section 34-405 provides: "Each person whose name is upon the registration list for the general election provided for in the foregoing section shall be entitled to vote at the general State election for said year and all primaries to nominate candidates for offices to be filled at said general State election and also at the Federal election in November of said year, and the election for justices of the peace and constables to be held in said year, and at all primaries for the nomination of candidates for the offices to be filled at said elections, and also at all primaries for nomination for county offices, and all other primaries and elections to be held for any purpose during said year after the filing of said registration list or during the succeeding year: Provided, that such person is not otherwise disqualified from voting at any election or primary held during such succeeding year: Provided, that no person shall be qualified to vote at any election unless he shall have paid all poll taxes due at least six months before the same, except when said election is held within six months from the expiration of the time fixed by law for the payment of said taxes. " (Emphasis supplied. ) By an Act approved February 24, 1937 (Ga. L. 1937, p. 712), the General Assembly created a June general election to be held "biennially on Tuesday after the first Monday in June, beginning on the above date in 1937", and further provided that said election should be held "in the same manner, with the same formality, and in accordance with all rules and regulations in existence in holding the November general election, etc." Since said act prescribed no further machinery for the preparation of a list of qualified voters to be used in said election, it is obvious that it was the legislative intent, in the use of the language last quoted, to adopt the existing statutes, rules and regulations with reference to the preparation of lists of qualified voters by the registrars, as well as the statutes, rules and regulations with respect to the qualification of voters, as a part of the machinery to be used in said June general election. This being true, and construing this June general election Iaw in connection with the code sections above referred to and quoted from, I am of the opinion that in the year 1939, which was a year "in which a general election" was to be held, it was the duty of the registrars to prepare a list of qualified voters to be used in said election. It is to be presumed that the registrars of Fulton County, being public officers, performed their duty and prepared and filed this list. Therefore, if this list was prepared and filed by the registrars as required by law it became the list of qualified voters to be used in the June general election, as well as in "all other primaries and elections to be held for any purpose during said year or during the succeeding year" (1940) . (Code Section 34-405). Of course as to elections held since December 19, 1939, persons whose names were upon said list and who had not paid their 1939 poll taxes on or before December 19 became disqualified, and it is necessary, in order to perfect the list of qualified voters previously filed with the clerk of the superior court for use in the June general election, for the registrars to purge it of their names as well as of the names of persons disqualified for some other legal reason. By Section 34-406 it is provided in part: "If any person whose name is not on said registration list desires to vote at any election or primary subsequent to the general state election whether in the said year or the succeeding year, he shall, upon paying all poll taxes 207 due by him, at least six months before the election at which he desires to vote, if otherwise qualified, have the right to take the oath and subscribe the same in the voters' book. " (Emphasis supplied.) It is further provided in this section that the names of such persons shall be furnished by the tax collector to the registrars and it is made the duty of the registrars to pass upon the qualifications of the persons whose names are upon said list and to file a supplemental registration list of additional voters as provided in said section. In view of all these statutes I am of the very definite opinion that the Fulton County Democratic Executive Committee, or any other such executive committee in this state, has the authority to fix a primary date for the holding of an election for the nomination of county officers at any time before May 6, 1940, even though the registrars have not completed their work of preparing a list of qualified voters to be used in the general election of 1940. If a date for such an election is set prior to May 6, 1940, the list of qualified voters to be used in said election would be the list used in the June general election, as purged of the names of any persons who have subsequently become disqualified as voters, together with an additional or supplemental list of persons who have become qualified as voters since the list for the June general election was filed with the clerk of the superior court. Giving to the statutes this construction, it makes the June general election law harmonize with the other statutes of this State upon the subject. If any other construction were placed upon the code sections referred to above, it would necessarily mean that no machinery is actually provided for the preparation of a list of qualified voters to be used in the June general election, to which elections have already been held in this state and upon the validity of which the courts have already favorably passed. ELECTIONS; PRIMARY-Voters'lists, how prepared. November 20, 1939 Honorable Joel H. Terrell Attorney at Law Warrenton, Georgia I am pleased to acknowledge yours of the 17th instant in which you state that a primary for the nomination of county officers for Warren County has been set for January 16, 1940, and that the Board of Registrars have asked you for an opinion as to how the voters list is to be made up for this election and who would be entitled to vote at this election. You request my views upon these questions. I am of the opinion that the lists of persons qualified to vote in said election should be prepared by the registrars in the following manner: First, the registrars should take the list of qualified voters prepared for the last general election in this State on June 6, 1939, and purge the same of the names of any persons who have become subsequently disqualified. That is, for example, this list should be purged of persons who, subsequent to the election of June 6, 1939, have failed to pay their 1939 poll taxes which will become past due and delinquent on December 20, 1939, or who for some other reason have become legally disqualified. Second, the registrars should prepare another list made up of the names of persons registering and paying their taxes under the provisions of Code Section I I 208 34-406, after first purging the same as therein provided. This opinion is based upon Sections 34-405 and 34-406 of the Code, and is in harmony with other opinions covering similar questions as rendered by my distinguished predecessor, Honorable M. J. Yeomans. Most requests for opinions are primarily interested in whether the poll tax for 1939 must have been paid in order to qualify a person as a voter in a primary election held subsequent to December 19, 1939, after which date the poll tax for this year becomes past due and delinquent. For this reason I call your attention to the decision of the Court of Appeals in the case of Callaway v. Tunnel Hill School District, 51 Georgia Appeals 101 (2) in which it was held, in substance, that any person who is a poll tax defaulter cannot vote in any election by the people. The payment of this tax is not required to be made six months before the date of primaries or special elections, the six months provisions in Article 2, Section 1, Paragraph 3 of the Constitution having been held to relate only to general elections. See McGill v. Simmons, 172 Georgia 127; see also Sims v. Kennedy, 184 Georgia 822. Of course, you realize that this opinion is purely unofficial and is binding upon no one. It is given to you in a desire to be helpful and cooperative with you and your county officers and registrars, and I assure you that notwithstanding the law prohibits me from rendering you any official opinion with reference to the questions asked, I shall be delighted to give you or the registrars my own personal and unofficial views with respect to any questions arising as to your primary election. ELECTIONS; PRIMARY-Qualifications of voters in county primaries. November 21, 1939. This unofficial information is furnished merely in a desire to be helpful and is binding upon no one. 1. Poll taxes are levied as of January 1st of each year and become past due on December 20th. (Code Sections 92-108, 92-6202, and 92-5102.) 2. Males are due no poll taxes for the year in which they become twenty-one years of age unless they become twenty-one on January 1st. They are liable for poll taxes for each succeeding year until they become sixty years of age, including the year in which they become sixty, unless they become sixty years of age on January 1st. (Code 92-108.) 3. Females are due no poll taxes until they register and then are not liable for poll taxes for the year in which they register unless they register on January 1st. They are liable for poll taxes for each succeeding year until they become sixty years of age, including the year in which they become sixty, unless they become sixty on January 1st. (Code 92-108.) 4. The payment of poll taxes for 1939 is not a necessary qualification to entitle one to vote in the primaries held prior to December 20, 1939, as poll taxes for 1939 will not be past due until December 20, 1939. On the other hand, persons voting in primaries held on or after December 20, 1939, must have paid their 1939 poll tax. (Callaway v. Tunnel Hill School District, 51 Ga. App. 101 (2) . ) 5. Females having once registered cannot now have their names stricken from the registration list, the General Tax Act of 1923, authorizing same having been superseded by the General Tax Act of 1927. Once registered, they are subject to the payment of poll taxes in the same manner as males. 209 6. Before offering to vote in any county or other primary held after December 19, 1939, to nominate candidates for the general election in 1940, all past due poll taxes, if any, including poll taxes for 1939, must have been paid. In addition, the person offering to vote must have been duly registered as provided by law and his or her name must appear on the voters' list prepared by the Board of Registrars and filed in the office of the Clerk of the Superior Court. A voter must be thus qualified to vote in the general election for which candidates are being nominated before he or she can vote in any primary to nominate candidates for the general election. (Article 2, Section 1, Paragraph 8, State Constitution.) 7. In any primary held before the registrars have completed their work of preparing a list of qualified voters to be used in the general election of November 5, 1940, the Board of Registrars may at any time file a supplemental voters list in the office of the Clerk of the Superior Court giving the names of voters not on the regular voters list that have qualified to vote, and when a copy of the same has been furnished to the election managers, such persons may then vote. 8. Any citizen, male or female, who will be twenty-one years of age on or before November 5, 1940, may register and vote in any primary election of 1939. 9. Monday, May 6, 1940, is the last day for paying poll taxes, registering and qualifying to vote in any primary held after May 6, 1940, and in the general election in 1940. No one can pay poll taxes, register or otherwise qualify for such elections after May 6, 1940. Under the law, persons who are otherwise qualified and who desire to vote in county primary elections held in this State prior to May 6, 1940, may do so by paying any past due poll tax, including poll tax for the year 1939, at any time before the registrars have completed their work of compiling a list of qualified voters to be used in said election, or within the time fixed by the County Democratic Executive Committee as a closing date for the qualification of voters in said primary. It is not required under the law or the constitution that past due poll taxes must have been paid six months prior to the date of any such primary election. If the voter, who is otherwise qualified, pays all past due poll tax in time to get his name placed upon the list of qualified voters being prepared by the registrars for use in the primary, he is qualified to vote. ELECTIONS; PRIMARY-Time of payment of poll taxes. October 28, 1939 Honorable E. D. Rivers, Governor This will acknowledge yours of the 24th instant inclosing letter of Honorable Harry M. Wilson, a member of the Board of Registrars of Ware County, requesting an opinion upon the questions propounded in the letter of Mr. Wilson. Mr. Wilson states that the County Democratic Executive Committee has set January 17, 1940, as the date upon which the county primary for the nomination of county officers shall be held. In connection with the qualification of voters in said primary he propounds the following questions: (1) "Does 1939 poll tax have to be paid to entitle one to vote?" (2) "Do 1938 and prior poll tax have to paid six months prior to January 17, 1940?" I shall deal with the questions in the order stated. In answer to the first question I am of the opinion that since the poll tax for 1939 will become past due 210 on and after December 20, 1939, it is required that the same shall be paid before the person owing such tax is qualified to vote in a primary election to be held on January 17, 1940. In the case of Callaway v. Tunnel Hill School District, 51 Ga. App. 101, it was held that a person who is a poll tax defaulter is not entitled to vote in an election by the people. In answer to the second question I am of the opinion that while 1938 poll tax must also be paid, it is not required that such payment must have been made six months prior to January 17, 1940, in order to qualify the tax payer as a voter in the primary election in January 17, 1940. I base this opinion upon the decisions of the Supreme Court construing that portion of Article 2, Section 1, Paragraph 3 of the Constitution (Code Section 2-603) which reads as follows: "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", as applying only to general elections. See McGill v. Simmons, 172 Ga. 127; Sims v. Kennedy, 184 Ga. 822. ELECTIONS; PRIMARY-All poll taxes must be paid if due in order to qualify voter in primaries. December 4, 1939 Honorable E. D. Rivers Governor I am pleased to acknowledge yours of November 28, 1939, referring to a letter which you have received from Honorable C. C. Padgett, Tax Collector of Spalding County, who desires to be informed upon the following questions: 1. Must 1939 poll tax be paid before December 20 in order to qualify a person to vote in a primary which is called on March 15, 1940? Answer. If the person referred to is due a poll tax for the year 1939 the same would have to be paid before he would be entitled to vote in a primary held on March 15, 1940. This is true, for the reason that under Code Section 92-5102 it is the duty of the tax collectors of this state to issue executions "on the 20th day of December in each year . . . against each delinquent or defaulting tax payer in their respective counties", and in the case of Callaway v. Tunnel Hill School District, 51 Ga. App. 101 (2), it was held that any person who is a tax defaulter is not entitled to vote in elections held in this state. So although the person referred to would not necessarily have to pay the tax before December 20, he would have to satisfy the execution issued by the tax collector for the tax before he could vote on March 15, 1940. 2. When should registration books be closed for parties reaching the age of 21 following the last legal registration date and when should registration books be closed in cases where women have not registered before? Answer. Poll taxes being levied as of January 1 of each year upon each inhabitant of this state between the ages of 21 and 60 (except blind persons and females who do not register for voting) , I am of the opinion that any person who will become 21 years of age on or before the date of any general election to be held in this state may register with the tax collector and vote in said general election, as well as in any primary to nominate candidates to run in such general election, and such a person may avail himself of the right to thus register and 211 qualify any time up until six months prior to the date of the general election. The same rule is applicable to females who have never previously registered for voting. In other words, for the general election which is to be held in this state on November 5, 1940, persons who will become 21 years of age on or before said date and females who have never before registered, may, up through May 6, 1940, register with the tax collector to vote in said election. If the person thus registering did not become 21 years of age on January 1, 1940, or the female did not register on January 1, 1940, they would not be required to pay any poll tax for the year 1940. Answering the question specifically, therefore, I beg to advise that the tax collectors of this state should not close their books for the registration of persons who will become 21 years of age on or before November 5, 1940, and to females who have never before registered until May 7, 1940. In the event that you desire to transmit the same to Mr. Padgett, lam herewith inclosing mimeographed copy of a general opinion upon the law with reference to the qualifications of voters in primary elections. I perceive that this opinion may be of further help to Mr. Padgett and inclose the same for your convenience. ELECTIONS; PRIMARY-Qualifications of voters in county primaries held on or after December 20th. Poll taxes required to be paid. November 14, 1939 Honorable E. D. Rivers, Governor I am pleased to acknowledge your request for an opinion upon the question as to whether persons, otherwise qualified, who have not paid their 1939 poll taxes are qualified to vote in any primary election held in any county on or after December 20, 1939. Section 92-5102 of the Code of Georgia provides: "The tax collectors shall keep an execution docket, and on the 20th day of December in each year issue executions against each delinquent or defaulting tax payer in their respective counties, unless further time is allowed as provided by law, and enter the names of such delinquent or defaulting taxpayers on said docket, together with an itemized statement of the taxes covered by such execution. " Article 2, Section 1, Paragraph 3 of the Constitution requires, as a prereqUisite of voting that a person "shall have paid all poll taxes that he may have had an opportunity of paying agreeably to law" and that "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. " In constrUing this paragraph of our Constitution, our Court of Appeals in the case of Callaway v. Tunnel Hill School District, 51 Ga. App. 101 (2) held that the exception as emphasized above "does not relieve one liable for poll tax on the preceding December 20 from paying it before the election, in order to become a qualified voter". Although the Court, in that case, was dealing with a special election, I think that the same principle would apply to primary elections, for the reason that it was never contemplated that a person should be permitted to vote in any election, whether a primary, special or general election, where such person is a poll tax defaulter. I am, therefore, of the very definite opinion that where a county primary is held on or after December 20, 1939, poll taxes for the year 1939 must be paid by persons subject thereto. (Emphasis supplied.) 212 ELECTIONS; PRIMARY-Authority of registrars to close lists. November 14, 1939 Honorable Allen Pannell Tax Collector, McDuffie County Thomson, Georgia This will acknowledge yours of the 13th instant in which you state that a primary election has been called in your county for the nomination of county officers to be held December 22, 1939. In connection with this election you desire information with reference to two questions: 1. In order for a person, otherwise qualified, to be eligible to vote in said election must he have paid 1939 poll tax? 2. Who has the right to close the registration books as between the county registrars and the tax collector? In answer to your first question I am of the opinion that 1939 poll taxes which, as stated in your letter, become delinquent after December 19, 1939, must be paid by persons subject to such poll tax before they will be qualified to vote in said election. I base this opinion upon the construction given to Article 2, Section 1, Paragraph 3 of the Constitution by the Court of Appeals in the case of Callaway v. Tunnel Hill School District, 51 Ga. App. 101, wherein it was said by Justice Jenkins: "All prior poll taxes becoming past due after December 20 of each year must thus have been paid at least six months prior to the election, unless that length of time has not intervened between the preceding date of maturity of the tax and the date of the election. This exception, however, does not relieve one liable for poll tax on the preceding December 20 from paying it before the election, in order to become a qualified voter. " (Emphasis supplied.) In answer to your second question I am of the opinion that since the election we are dealing with is a primary election the party authorities holding the primary may in cooperation with the registrars and the tax collector formulate any rules and regulations in connection therewith with reference to the time of the closing of the books and the preparation of the lists of qualified voters to be used in the election as may be reasonable. (See Code Section 34-3209, Georgia Code of 1933.) Under Article 2, Section 1, Paragraph 5 of the Constitution and under Section 34-401 of the Georgia Code of 1933 the registrars are vested with certain powers and duties. With respect to general elections, the time when their work shall be completed is specified by statute. See Section 34-403. With respect to primary elections, there is no time specified in the statute governing the date or time when the registrars shall complete their work in compiling a list of qualified voters to be used in such elections. Therefore, I am of the opinion that any reasonable time fixed by the registrars for the completion of their work in compiling lists of qualified voters would be within the scope of their powers. Of course, you must realize that this opinion is purely unofficial for the reason that I am not authorized to render an official opinion upon the questions propounded in your letter other than upon the written request of the Governor. Notwithstanding this, however, I am always glad to be of any assistance that I can to county officers or other election officials. Being unofficial, the opinions expressed in this letter are not binding upon you, the Board of Registrars or any tax payer or citizen in your county. 213 ELECTIONS; PRIMARY-Authority of party executive committee as to plurality or majority necessary to nominate. July 9, 1940 Honorable L. E. Moore, Chairman Honorable Eugene Edwards, Secretary Haralson County Democratic Executive Committee Buchanan, Georgia I am pleased to acknowledge yours of the 6th instant requesting my advice as to whether your Democratic Executive Committee has the authority to require a majority vote in the September 11 primary for the nomination of a representative in the General Assembly, and to fix the date for a runover primary in the event no candidate receives a majority of the votes in said primary. This is a matter about which I cannot give you any official opinion, for the reason that under the law prescribing my duties I am not authorized to render official opinions except upon the written request of the Governor and to heads of State Departments, consequently what is said herein must be taken as only expressing my own personal views with reference to your problem and is not binding upon anyone. In fact, I prefer that anything said herein should be treated as entirely confidential and that this office or myself not be quoted in the matter. I am of the opinion that your question is controlled by provisions of Section 34-3203 of the Code which requires, among other things, that primary elections for nomination of candidates for members of the General Assembly shall be held on one and the same day throughout the State at such date as may be fixed by the State Executive Committee of the party holding the primary. This date, as to the Democratic primary, has been fixed, as you know, as September 11, 1940. I do not think that your county committee has the authority to require any candidate in this primary election to obtain a majority of the votes in the county in order to be nominated. This is true for two reasons: First, because party authorities may prescribe rules and regulations "for holding said primary election" and for "making returns thereof to the proper party authorities, " but no authority is given to prescribe a basis for the determination of the result of the election such as requiring that a majority of the votes cast must be received by one candidate before he shall be declared the nominee; and Second, because the statute (Code Section 34-3213) fixing the date for a second primary election throughout the State on the first Wednesday in October following the first primary election applies only to those officers who are nominated on the basis of county unit votes throughout the State, which, of course, does not include members of the General Assembly. Therefore, since Code Section 34-3203 provides that elections for the nomination of candidates for members of the General Assembly shall be held on one and the same day throughout the State it necessarily follows that if a runover primary were held in only one or two counties in the State such elections would depart from the requirements of the aforementioned section. In this discussion the language of the last proviso of Code Section 34-3203 should not be overlooked. This proviso reads: "Provided further, that this section, shall not have the effect of requiring a primary for judges and solicitors except in their respective circuits, or for members of the General Assembly except in their respective counties, or for State Senators except in their respective counties, as the authorities of said party may authorize or direct." (Emphasis supplied.) 214 A proper construction of this proviso in the light of the entire Code Section would seem to be that when a primary election is held for the nomination of members of the General Assembly only those persons qualified to vote for members of the General Assembly in the particular county in which the election is being held shall vote for such members, but the proviso does not vary the requirement that the election for members of the General Assembly shall be held on the same day in the various counties throughout the State. In its last analysis, however, the question of whether a person has been properly nominated, elected and is eligible for a seat in either house of the General Assembly to which he has been elected, addresses itself to the members of the house in which such person is claiming a seat, for Article III, Section II, Paragraph I of the Constitution (Code Section 2-1801) provides, "Each house shall be the judge of the election, returns and qualifications of its members, etc." The questions submitted by you are not at all free from doubt and the statutes bearing upon the subject do not shed much light upon your problem. It may be that the County Executive Committee does have the authority to promulgate the rules and regulations referred to in your letter, since there seems to be an absence from our statutes of any express or specific provision upon the subject. All things considered, however, I am inclined to take the same view of the matter as that expressed in your letter, that is, that the committee does not have this authority. ELECTIONS; PRIMARY-Date of primary for members of General Assembly. December 28, 1939 Hon. Casey Thigpen Representative from Glascock County Gibson, Georgia I have your letter of December 23rd asking my opinion as to the proper time to hold primary elections for nomination of candidates for members of the House of Representatives. Section 34-3203 of the 1933 Code provides as follows: "34-3203. (129) Time for holding election. -Whenever any political party shall hold primary elections for nomination of candidates for office, such party or its authorities shall cause all candidates for nominations for Governor, Statehouse officers, members of Congress, United States Senators, judges of the superior courts, Justices of the Supreme Court, Judges of the Court of Appeals, solicitors general and members of the General Assembly to be voted for on one and the same day throughout the State at such date as may be fixed by the State executive committee of such party, except where a second primary shall have been called by the authorities of said party for any particular office on some subsequent day, through failure to make, for any cause, a valid nomination at the first primary, or in consequence of a contest: Provided that said executive committee shall not fix the date for the said general primary earlier than 60 days before the date of the general State election in November: Provided further, that this section shall not have the effect of requiring a primary for judges and solicitors except in their respective circuits, or for members of the General Assembly except in their respective counties, or for State senators except 215 in their counties, as the authorities of said party may authorize or direct. " (Emphasis added. ) In ruling on this same question under date of June 6, 1934, my distinguished predecessor, the late Honorable M. J. Yeomans, held that a candidate for representative nominated at a county primary held on any date other than that fixed by the State Executive Committee under the provisions of the above quoted Code section could not be the legal nominee of the Democratic Party and would not be entitled to have his name placed on the ticket at the November election as the nominee of the Democratic Party. In the opinion rendered by Judge Yeomans on June 6, 1934, he stated in part as follows: "It has been the custom in some counties, usually followed in the year in which all county officers are nominated, to hold preferential primary elections for representative at the same time as the primary is held for county officers. This action, however, is not binding and a candidate for representative nominated at such an election is not and cannot be the nominee of the party unless he is again voted on and again nominated in the regular State Primary. The County Executive Committee might hold a preferential primary for representative on June 20, 1934, but the result would not be binding on anyone and the candidate nominated in the primary would not be the nominee of the party and could not be the nominee of the party unless he was again nominated at the September Primary. " Opinions of the Attorney General, 1933-1934, page 276 at 277. ELECTIONS; PRIMARY-Time between primary and general election. December 28, 1939 Honorable P. B. Childs, Secretary Taylor County Democratic Executive Committee Butler, Georgia This will acknowledge receipt of your letter of December 22 in which you ask the following questions: "This month the chairman of our Democratic Executive Committee died. As you know there should be a meeting of the committee soon to set the fees, etc., for our county primary. Who should call this meeting? "Please advise also bow long before the general election should a primary be held?" The Attorney General is authorized by law to render official opinions only when so requested by the Governor or by one of the Statehouse officials upon matters directly affecting the State's interests. Therefore, anything which might be said in response to your inquiry must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. There does not seem to be any statutory law controlling the first question which you ask. This would properly be a matter controlled by the by-laws of your County Democratic Executive Committee. I might suggest, however, as a practical solution that if you have no by-laws making provision for the calling of a meeting of your committee under the circumstances set forth in your letter, you might get the members of the committee to join you in issuing the can and setting the time and place for such meeting. It occurs to me that the Secretary could, however, call the meeting. With reference to your second question your attention is called to Section 34-3203 of the Georgia Code of 1933 which provides as follows: 216 "Whenever any political party shall hold primary elections for nomination of candidates for office, such party or its authorities shall cause all candidates for nominations for Governor, Statehouse officers, members of Congress, United States Senator, Judges of the Superior Courts, Justi.ces of the Supreme Court, Judges of the Court of Appeals, Solicitors General and members of the General Assembly to be voted for on one and the same day throughout the State at such date as may be fixed by the State Executive Committee of such party, except where a second primary shall have been called by the authorities of said party for any particular office on some subsequent day through failure to make, for any cause, a valid nomination at the first primary, or in consequence of a contest: Provided, that said executive committee shall not fix the date for the said general primary earlier than sixty days before the time of the general State election in November: Provided further, that this section shall not have the effect of requiring a primary for judges and solicitors except in their respective circuits, or for members of the General Assembly except in their respective counties, or for State senators except in their counties, as the authorities of said party may authorize or direct." Section 34-3212 provides in part: "Whenever any political party shall hold primary elections for nomination of candidates for United States Senator, Governor, Statehouse officers, Justices of the Supreme Court, and Judges of the Court of Appeals, such party or its authorities shall cause all candidates for nominations for said offices to be voted for on one and the same day throughout the State, which is hereby fixed as the second Wednesday in September of each year in which there is a regular general election." Section 32-3217 provides: "Nothing in this law shall be construed to provide or require any definite unit of election for candidates for nominations for members of Congress, Judges of the Superior Courts, Solicitors General, members of the General Assembly and county offices; and this law shall not be construed to require a primary for any of the last named officials, except in their respective districts, circuits or counties, as provided by law: Provided, however, that primaries for nomination of members of Congress, Judges of the Superior Courts, Solicitors General and members of the General Assembly shall be held on the date named i.n Section 34-i212 for primaries for United States Senator, Governor, Statehouse officers, Justices of the Supreme Court and Judges of the Court of Appeals. " With reference to the offices not specifically named in the foregoing code sections the question is controlled by Sections 34-3209 and 34-3210 of the Code, which sections provide as follows: "34-3209. The party authorities shall, in all matters :o.ot provided for in this Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities. "34-3210. Every such primary election shall be held at the time and place, and under the regulations prescribed by the rules of the party, organization, or association holding the same, and the return shall be made and the result declared as prescribed in this Chapter. " There is no restriction as to how long before the general election a county primary must be held. It is a matter left to the judgment of the county democratic committee. 217 ELECTIONS; PRIMARY-Authority of party executive committee to designate voting precincts. February 12, 1940 Mrs. W. B. Powell Secretary Butts County Historical Society Indian Springs, Georgia I am pleased to acknowledge yours of the 6th instant which would have received my earlier attention but for the fact that I have been out of the city for the past several days and all of my time has been taken up with pressing official business of the State. You request information as to whether the County Executive Committee of your county has the power to designate in what precinct a citizen shall cast his vote, the particular question arising by virtue of the fact that Militia District No. 614 of Butts County has one voters' list but two polling places, and voters usually poll at either place without question. The question also arises with reference to two incorporated towns in one Militia District, to-wit, City of Jackson and the Town of Pepperton. You request other information which will be given below. Section 34-3204 of the Code of Georgia, relating to primary elections, provides: "No elector shall vote in any such primary election in a Militia District other than the one in which he resides, or, if he resides in a city, in a ward other than the one in which he resides, if an election precinct shall be located in such ward. " Section 34-9928 of the Code provides a penalty for plural voting as follows: "Any person who shall vote at a primary election more than once or at more than one polling place, shall be guilty of a misdemeanor." These sections of the law should be construed in connection with the law prescribing the duties of the registrars in preparing the list of voters, and especially Section 34-404 which requires the registrars to prepare the list of registered voters alphabetically, "arranged by militia districts, and, in case a city is located in the county, by wards of the city", and further provides that said list as thus prepared shall be used in party primary elections to nominate candidates for the offices to be filled at general elections. Thus it will be seen that the law fixes the place at which a person who is duly registered may vote in a primary election. If he lives in a militia district in which there are two voting precincts other than in incorporated cities or towns, then he may vote at either of said precincts. If he lives in a militia district in which there are two cities or towns, he would be required to vote in the city in which he resides, and if the city is divided into wards, and there is a precinct in his ward, then he would have to vote at the precinct in said ward. As is seen from the Code section set out above, it is the duty of the registrars to arrange the voting lists according to militia districts and wards. No duty or authority is placed upon the County Democratic Executive Committee to perform this service. You should be able to find the Australian Ballot Law in the office of the Ordinary of your county. It will be found in the Acts of the Legislature of 1922 (Georgia Laws, 1922, page 105) . It is codified as Chapter 34-19 in the Code of Georgia of 1933. In counties where this Australian Ballot Law has been adopted, it is provided that "No person or persons, other than the voter himself, while occupying the booth or while in the immediate act of voting, shall come within ten feet 218 of said booth or booths while said polls are open. This section shall not apply to any of the officers in charge of holding said election. " Code Section 34-1902. Code Section 34-3202 provides in part that "At the close of the election, the managers shall proceed publicly to count the votes and declare the result. " (Emphasis supplied. ) I regret that I do not have a printed copy or pamphlet containing the Australian Ballot Law and other laws of this State governing primary elections, sUitable for mailing, but if you can find a copy of the 1933 Code of Georgia in the office of the Ordinary, I would suggest that you read Chapter 34-32, relating to primary elections in general, and Chapter 34-19, relating to elections held under the Australian Ballot Law. Of course you realize that what is said herein is purely unofficial and is binding upon no one, for the reason that under the law prescribing my duties, I am not authorized to render any official opinion with reference to these subjects except upon the written request of the Governor. I trust that the information given above will be of help to you, and if there are any further questions upon which you desire my unofficial opinion, I shall be glad to endeavor to furnish you such information. ELECTIONS; PRIMARY-Authority of party executive committee to place name of candidate for County School Superintendent on ballot where such candidate has not furnished certificate of his eligibility to the office. December 14, 1939 Atkinson County Executive Committee Pearson, Georgia I am pleased to acknowledge yours of the 13th instant requesting my advice upon the following question: "Should the names of candidates be placed on the primary tickets for Superintendent of Schools in the county primary to be held in January who have not first furnished certificate of qualification from the State Superintendent of Schools?" Code Section 32-1004 prescribing the qualification of county school superintendents provides in part: "Before being eligible to qualify for election, candidates for the position must file with the State Board of Education a certificate showing at least one of the above qualifications. This certificate must be signed by the President of the County Board of Education. " (Emphasis supplied.) In construing this section, it should be observed that the statute used the words "for election" and it should be remembered that a primary merely "nominates" candidates who are to be elected. The candidate who is nominated in a primary for the office of county superintendent of schools will not, under the provisions of Section 32-1002 of the Code, be elected until the general election "on Tuesday after the first Monday in November". So while there is no law in this State reqUiring a candidate in a primary election to establish his qualification in the manner provided in Section 32-1004, nevertheless I am of the opinion that the County Executive Committee which, under Code Section 34-3209, has the authority to "Formulate rules and regulations for holding . . . primary elections" may adopt a rule or regulation which reqUires a candidate for county school superintendent to submit to it a certificate showing the qualification reqUired under Section 32-1004 of the Code. If this certificate shows that the person seek- 219 ing to qualify as a candidate will be qualified to hold the position as of the date of the General Election on November 5, 1940, his name should be entered as a candidate (if he is otherwise qualified in accordance with the rules of the County Executive Committee). I trust that you will treat this opinion as purely unofficial and as binding upon no one, for the reason that under the law the Attorney General is not authorized to render any official opinion with reference to the question propounded by you except upon the written request of the Governor. The views expressed in this letter merely state my own personal opinion and are given you in an effort to be helpful and cooperative. If there are any additional questions about which I can furnish you any information I shall be delighted for you to call upon me. ELECTIONS; PRIMARY-Voters' lists, how prepared and filed. November 16, 1939 Honorable Dawson Kea Attorney at Law Dublin, Georgia I am pleased to acknowledge yours of the 14th instant in which you state that the Laurens County Democratic Executive Committee has instructed you to obtain from me an opinion as to the manner of preparation of a list of qualified voters to be used in the county primary election to be held in February or March of 1940. The last general election was held in this State, as you know, on June 6, 1939. Keeping this fact in mind, let us examine the provisions of Sections 34-404 and 34-405 of the Code. The first cited section provides for the filing of the list prepared by the registrars for the general election with the Clerk of the Superior Court, and restricts all persons from voting whose names do not appear on the lists so filed "except as hereafter provided in this title". Section 34-405 provides: "Each person whose name is upon the registration list for the general election provided for in the foregoing section shall be entitled to vote at the general state election for said year and all primaries to nominate candidates for offices to be filled at said general State election and also at the Federal election in November of said year, and the election for justices of the peace and constables to be held in said year, and at all primaries for the nomination of candidates for the offices to be filled at said elections, and also at all primaries for nomination for county offices, and all other primaries and elections to be held for any purpose during said year after the filing of said registration list or during the succeeding year: Provided, that such person is not otherwise disqualified from voting at any election or primary held during such succeeding year: Provided, that no person shall be qualified to vote at any election unless he shall have paid all poll taxes due at least six months before the same, except when said election is held within six months from the expiration of the time fixed by law for the payment of said taxes. " (Emphasis supplied.) In view of these code sections I am of the opinion that the list to be used in any primary election for the nomination of county officers in February or March 1940 would be the list as prepared by the registrars and filed with the Clerk of the Superior Court for use in the general election of June 6, 1939, as purged of the names of any persbns appearing thereon who subsequent to the election of June 6, 1939, have failed to pay their 1939 poll taxes which became Past due and delinquent on and after December 20, 1939. The payment of these Poll taxes for 1939 need not have been made six months before the date of the 220 primary election, but must have been paid within the time fixed by the registrars for the completion of their work in compiling the list to be used in the primary election. See Callaway v. Tunnel Hill School District, 51 Ga. App. 101 (2) . In addition to the list referred to above, I am of the opinion that a supplemental registration list should be prepared, to contain the names of those persons complying with the provisions of Section 34-406. Of course, you must realize that this opinion is purely unofficial and neither binding upon the Chairman of the Executive Committee, nor upon any member thereof, nor upon the Committee as a whole, nor uppn any citizen of the county. This information is given you purely in the spirit of helpfulness and in a desire to cooperate with your Committee in the performance of its official duties. The questions propounded really should be addressed to your County Attorney for advice. ELECTIONS; VOTING BY MAIL-Absentee voting law, if applicable to special elections, requires thirty days notice of intention. May 30, 1939 Ron. T. E. Lewis, Ordinary Colquitt County Moultrie, Georgia Ron. Holcombe Perry, Secretary to Ron. Charles S. Reid, Chief .Justice of the Supreme Court, handed to me for reply your letter of May 26, 1939. It is my understanding from the terms of your letter that you have called a special election for the purpose of filling a vacancy in the office of Clerk of the Superior Court of Colquitt County. In order to save expense, you have called the special election for .Tune 6th and the names of the candidates for the office of Clerk of the Superior Court will be added to the ballots for the general election which will be held on that date. You state that there are several who wish to vote by absentee ballot and you inquire if they would be required to give not less than thirty days notice in order to exercise this privilege. The right of an absentee to vote by registered mail is not a common law right but a privilege which has been granted by the General Assembly and in order to exercise this privilege the absentee must strictly comply with the provisions of the law. Section 34-3301 of the Georgia Code of 1933 provides: "Any voter, when required by his regular business and habitual duties to be absent from the city or county, ward or district in which he is registered, may vote by registered mail; Provided, that he shall give notice in writing of such intention to the registrars of his county, not less than 30 days nor more than 60 days prior to the primary or general election in which he may desire to participate." From the terms of your letter, I am uncertain whether the absentees desire to vote both at the general and the special elections or only at the special election. Certainly, under the above quoted provision, an absentee voter could not vote at a general election without giving the required 30 days notice. There is serious doubt in my mind that the Absentee Voters Act was intended to apply to special elections. The language in Section 34-3301 would seem to limit it to primary or general elections. I do not find any other provisions of the absentee voters act or any other law of this State specifically granting an absentee the privilege of voting at a special election. However, assuming for the purposes of your inquiry that the Absentee Voters Law is broad enough to include special elections, I do not believe that an absentee would be entitled to vote at a special election without complying with the provisions of that law requiring that he 221 give notice in writing of his intention to vote to the registrars of his county not less than 30 days nor more than 60 days prior to the holding of such election. The information contained in this letter must be considered as an expression of my personal views upon this subject and not binding upon anyone, since the Attorney General is by law authorized to render an official opinion on any question of law connected with the interest of the State or with'the duties of any of the Departments only when so requested by the Governor or by one of the officials of the Executive Department. ELECTIONS; VOTING BY MAIL-How accomplished. December 19, 1939 Honorable E. D. Rivers Governor I am pleased to acknowledge your request for an opinion upon the questions submitted in the letter of Honorable Harry M. Wilson of Waycross, Georgia, under date of December 6, 1939. Mr. Wilson desires to know whether under the statutes providing machinery for voting by mail in the case of absentee voting a person who is bedridden and physically unable to attend the polls may make application for a ballot and vote by mail in the manner provided in Chapter 34-33 of the Code. Code Section 34-3301 provides: "Any voter, when required by his regular business and habitual duties to be absent from the city or county, ward or district inwhich he is registered, may vote by registered mail: Provided, that he shall give notice in writing of such intention to the registrars of his county, not less than 30 days nor more than 60 days prior to the primary or general election in which he may desire to participate. " (Emphasis supplied.) Under a proper construction of this statute, I am of the opinion that any person who is not actually absent from the county in which he or she is registered may not avail himself or herself of the provisions of Chapter 34-33 and vote in a county primary election. A person physically present within the county, although disabled and unable to attend the polls on account thereof could not legally apply for and obtain a ballot and vote in such primary election as an absentee voter. Under Section 34-3309 it is made the duty of the ordinary of each county to furnish, at the expense of the county, the registrars with a sufficient number of blank ballots for use by absentee voters. It would be an illegal expenditure of county funds if the ordinary furnished ballots to persons who were not authorized to apply for same within the contemplation of Section 34-3301. ELECTIONS; FOR SCHOOL BUILDING BONDS-Voters' lists, how prepared. April 8, 1940 Hon. L. H. Edenfield Route 1, Box 34 Stillmore, Georgia I am pleased to acknowledge yours of recent date with reference to the qualifications of voters in local school district bond elections. Your inquiry would have received my earlier attention, but for the fact that all of my time and that of my assistants has been taken up for the past several weeks in attending to urgent official State business and litigation pending in our courts in which the State and its officers are involved. 222 Our Supreme Court has, upon several occasions, held that, since there can be no special registration for district school bond elections, the list of voters to be used in such an election is the list used in the last general election, as purged by the County Board of Registrars of the names of any persons on said list who have, subsequent to said general election, become disqualified as voters, and that it is the duty of the Tax Collector to certify said list as purged to the election managers. See Terrell v. Forrest Park School District, 175 Ga. 88; Chapman v. Sumner Consolidated School District, 152 Ga. 450 (2). If, therefore, a person whose name appeared upon said list as used in the last general election has subsequently moved his residence from the district or county in which he was registered, the registrars, in preparing the list to be certified by the Tax Collector, should strike or purge his name from the list. Persons whose names were on the list of qualified voters used in the last general election could pay any past due poll taxes to the Tax Collector up until the time that the registrars completed their work of purging the list, and could thus become qualified to vote in the bond election. Persons becoming 21 years of age since January 1st, or who will become 21 years of age before the general election to be held in November of this year, and whose names do not appear upon the list of registered voters as used in the last general election, could not vote in the bond election, for the reason that, as stated above, our Supreme Court has held that the list to be used in school district bond elections is the list of qualified voters used in the last general election as purged of the names of any persons who have subsequently become disqualified. In the case of Briscoe v. Between Consolidated School District, 171 Ga. 820 (2b), the Supreme Court, in 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 said 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 1aw. See also Fairburn School District v. McLarin, 166 Ga. 867. In the last cited case it was held: "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. " In summary, when a school district bond election is called, as provided by Code Section 32-1401, it is made the duty of the tax collector to "furnish a certified list of registered voters in such school district or consolidated district to the managers of the election ten days before such election i.s held"; and, before the tax collector could furnish the required list, it would be necessary for the registrars to purge the list of the voters of the last general election of the names of any persons residing in the school district wherein the election is to be held who have, subsequent to the last general election, become disqualified as voters. From these purged lists, the tax collector is required to make up a list of the voters residing in the school district whose names appear upon said list after they have been so purged by the county registrars. Of course, you realize that what is said herein is purely unofficial, and binding upon no one, for the reason that under the law the Attorney General cannot render an official opinion upon matters of this nature except upon 223 the written request of the Governor. I am glad to furnish you this information, however, in a desire to be helpful. ELECTIONS; FOR SCHOOL BUILDING BONDS-Qualifications of voters. June 13, 1939 Ron. L. E. Heath County Attorney, Coffee County Douglas, Georgia I have yours of the 7th instant with further reference to my unofficial opinion to Mr. J. M. Parrish, Chairman of the County Board of Registrars of Coffee County, under date of June 5, 1939, relating to the schoolhouse bond election to be held in the Satilla School District of Coffee County around July 8, 1939. A bond election in a school district is a special election. See Houston v. Thomas, 168 Ga. 67, 70. It has been held that the constitutional requirement as to the payment of poll taxes six months before the election at which a taxpayer offers to vote applies only to general elections, and not to special elections. Consequently, if a taxpayer seeking to vote in a special election has been properly registered, and has paid his poll tax in sufficient time to get his name upon the list of qualified voters prepared for the election by the county registrars, he may vote in such election, although the payment of his poll tax did not occur six months prior to said special election. See McGill v. Simmons, 172 Ga. 127. I did not overlook the decision of the Court of Appeals in the case of Callaway v. Tunnell Hill School District, 51 Ga. App. 101, in writing the letter to Mr. Parrish. I intended to advise Mr. Parrish that poll taxes for the year 1938 would not have to be paid six months prior to the date of the election for bonds. I did advise him that under the Constitution of this State (see Code Section 2-5501), no special registration of voters is permitted in the case of an election called upon the question of the issuance of bonds, and, consequently, no person who was not registered with the tax collector according to law, prior to the closing of his books (see Code Section 34-106) six months in advance of the general election of June 6, 1939, that is, on or before December 6, 1938, would be entitled to vote in said election. In this instance, of course, I was drawing a distinction between "registration" and "payment of taxes". ELECTIONS; FOR SCHOOL BUILDING BONDS-Time of registration of voters. October 14, 1939 Ron. A. H. Freeman Vice Chairman, State Board of Education Newnan, Georgia This will acknowledge yours of the 12th instant with further reference to the election to be held in a local school district upon the question of the issuance of school house bonds. This letter would have received my earlier attention but for ,the fact that I have been out of the State for the past several days upon official business. You desire to know whether women registering for the first time within five days after the call of the said special election would be qualified to vote. I am of the opinion that they would not, as there is no provision made by statute for special registration for bond elections in school districts. Terrell vs. Forest 224 Park Consolidated School District 175 Ga. 88. See also Chapman v. Sumner Consolidated School District, 152 Ga. 450, 453. You desire to know also whether certain citizens who reside in the said district, but who, in the past, have been voting in another militia district, may transfer their registration to their own district and vote in the election, and, if so, when such transfer must be made. These last questions are answered by Code Section 34-801 which provides: "All persons whose names appear on the list of registered voters placed in possession of the election managers, and no others, shall be allowed to deposit their ballots according to law, at the voting precinct of the militia district or city ward in which they are registered, but not elsewhere, except as hereinafter provided. If in any city ward or militia district a voting precinct is not established and opened, the county registrars shall furnish to the election managers at the voting precinct at the courthouse, at the county site, the lists of registered voters of such ward or militia district, and persons whose names appear on such lists shall be allowed to vote at the voting precinct at the courthouse, at the county site, under the same rules that woUld have governed if a voting precinct had been established and opened in said ward or militia district. " (Emphasis supplied. ) See also Briscoe v. Between Consolidated School District, 171 Ga. 820. As I understand your auestion, the persons referred to have not actually changed their residence from the militia district to the school district where election is to be held, and consequently Section 34-804 of the Code is not applicable. ELECTIONS; FOR SCHOOL BUILDING BONDS-Time for payment of poll tax. October 9, 1939 Hon. A. H. Freeman, Vice-Chairman, State Board of Education, Newnan, Georgia I am pleased to acknowledge yours of the 7th instant requesting my opinion as to the qualifications of voters in a special school district bond election in a certain school district, to be held on October 30th, 1939. You specifically inquire as to whether 1938 poll taxes must have been paid, and if so, by what date, in order for a person to qualify as a voter to vote in said election, and whether delinquent poll tax may be paid "between now and the election, " and whether a person just becoming 21 coUld now register and vote in said election. An election held under the provisions of Section 32-1401 of the Code for the purpose of determining whether or not bonds shall be issued for building and equipping a school house or school houses for a given school district is a special election. Ordinarily the provisions of Code Section 34-407 with reference to the preparation of the list of qualified voters to be used in special elections woUld be applicable and controlling. However, our Supreme Court in the case of, Terrell et al vs. Forest Park Consolidated School District, 175 Ga. 88, in answering a certified question of the Court of Appeals relating to the registration and qualifications of voters in special school district bond elections held, "there is no authority of law whereby a person legally qualified to register, but whose name does not appear on the list of voters made up, certified, and filed with the clerk for the last general election, may be registered so as to entitle him to vote in a special local school-district-bond election held more than six months after 225 the voters' books close for the last general election. " Thus it is clear from this decision that our Supreme Court has ruled that the provisions of Section 34-407 of the Code are not applicable to school district bond elections. This being true, I am of the opinion that any person whose name does not appear upon the list of qualified voters used at the last general election cannot vote in the school district bond election. Neither can such a person register and qualify to vote in such an election after it is called. In the case of, Calloway vs. Tunnel Hill School District, 51 Ga. Apps. 101, the court had under consideration the validity of a proceeding to validate bonds voted in a school district bond election, and of course the validity of the bonds was contingent upon the validity of the election held to authorize their issuance. In said case it was held that although poll taxes becoming past due after December 20th, were not required to be "paid at least six months prior to the election, " nevertheless, one liable for poll tax on the preceding December 20th was required to pay the same before the election in order to become a qualified voter therein. See also, Chapman vs. Sumner Consolidated School District, 152 Ga. 450. In the case of, Fairburn School District vs. McLarin, 166 Ga. 867, the court quoted the language of the statute applicable to school district bond elections which requires the Tax Collector to furnish a certified list of registered voters in the territory to be affected and other acts of the Legislature relating to the registration of voters which require the registrars to "purge the list of regis- tered voters" of the names of all disqualified voters. It was held"that the purged registration list of voters as delivered by the Tax Collector to the election managers must be looked to as showing the totalnumberofvotes the prescribed proportion of which must have voted for the issuance of bonds in order to carry the election. " In view of these decisions, I am of the opinion that when a special school district bond election is called, it is the duty of the Tax Collector of the county to turn over to the Board of Registrars a list of the registered voters used in the last general election, and it is then the duty of the registrars to purge said list of the names of any persons who have subsequently become disqualified as voters for any legal reason, such as the non-payment of past due poll taxes. The Tax Collector would not be authorized to add to said list used in the last general election the names of any persons who had, subsequent to the last general election and after the call of said special election, registered with him. The list of qualified voters to be used in said special election would be the list of qualified voters used in the last general election as purged of the names of persons who had subsequently become disqualified. Persons whose names appeared upon said list of qualified voters used in the last general election could pay past due poll taxes to the Tax Collector on or before the registrars had completed their work in purging the list of disqualified voters, and thus become qualified to vote in the special election. ELECTIONs-Secret Ballots. September 3, 1940 Hon. W. P. Richardson Box 117 Macon, Georgia I have your letter of August 30. You point out that, when a voter votes at the polls of this State, a number is marked on the ballot and a corresponding number is shown on a list of the names of voters in the order of their voting. You 226 question the secrecy of the ballot under these circumstances. In answering your letter I can only discuss the question you raise informally, for the reason that the subject matter of the inquiry and the manner in which it arises do not authorize me to render an official opinion. My duties and powers are prescribed by law, and I can only advise the Governor and heads of the departments of the State upon questions affecting the State. Nevertheless, as a matter of information, and without being considered as an opinion, official or otherwise, I point out some applicable sections of the law intended to make a voter's ballot as secret as it seems humanly possible to do. Section 34-1303 of the 1933 Georgia Code in part provides: "2. Managers and clerks. -There shall be kept by the managers, or by three clerks under their appointment, three lists of the names of voters, which shall be numbered in the order of their voting, and also three tally sheets. "3. As each ballot is received, the number of the voter on the list shall be marked on his ballot before being deposited in the box." Section 34-3207 of the 1933 Georgia Code reads as follows: "Returns of managers, how filed and controlled. -The returns of the managers, with the tally sheets, lists of voters, and ballots, together with all papers connected with said election, shall be filed in the office of the clerk of the superior court of the county in which said election shall be held, within four days after the final declaration of the result thereof. One of the lists of the voters and one of the registration lists with names of those checked or marked as voters shall be exhibited by said clerk to anyone desiring to inspect same, but the other documents deposited as aforesaid shall be kept unopened and under seal until the next meeting of the grand jury, to which grand jury one registration list, one list of voters, and the checked registration list above mentioned shall be exhibited; and if no action shall be taken thereon by the grand jury and no contest shall have been filed within the time prescribed by the authorities of said party, all of said election papers shall be destroyed. " Section 34-9916 of the 1933 Georgia Code provides: "Illegal inspection of ballots or other election papers. -Any clerk or other officer into whose custody ballots and other election papers may be placed who shall1ook into or inspect the same for the purpose of ascertaining how any elector voted, or who shall give out, tell, make known or permit any date, memorandum, or other information concerning for whom any elector voted or against whom any elector voted, except when required by legal process, shall be guilty of a misdemeanor. " From the above quoted code sections it will appear that voting in Georgia is made as secret as the practical registration and counting of ballots will permit. Wbile it is theoretically possible for the election managers, in the short time the ballots are in their possession, to compare the number on the secret ballot with the number contained on the list of voters and tell for whom a particular person voted, it would be impossible for such an election manager to do so without express design and much trouble in sorting through the whole box of ballots to pick out the particular numbered ballot he sought. If such an election manager should do so, he would not only violate his oath as an election manager, but be would violate the criminal statute referred to above and be subject to punishment as for a misdemeanor. The law makers of this State have placed these statutes on the books for the preservation of the secret ballot. I assume that every election manager is conscious of his oath and is cognizant of the express 227 criminal statutes which make it a misdemeanor for him to look into and inspect the ballot for the purpose of ascertaining how any elector voted, or to give out, tell, make known, or permit any data, memorandum or other information con- cerning for whom any elector voted or against whom any elector voted, except when required by legal process. . Insofar as the secrecy of the ballot is concerned, it makes no difference whether the Australian ballot or the former method of voting is used: the above cited statutes are equally applicable in each case. I think you will find that these safeguards of the secrecy of the ballot in Georgia compare favorably with the secrecy of voting in any other state in the Union, and I believe that, as the laws are administered, the voters of this State are as secure as they reasonably can be of the secrecy of their ballot. ELEEMOSYNARY INSTITUTIONS; MILLEDGEVILLE STATE HOSPITAL-Not subject to eminent domain of electric membership corporations. June 24, 1939 Honorable E. D. Rivers Governor This will acknowledge receipt of a letter of June 19th from H. Y. Cook, addressed to you, in which he requests a right of way across the Milledgeville State Prison Farm for a rural electric line. With his letter is inclosed a form for the grant of such right of way by the State of Georgia to the Central Georgia Electric Membership Corporation. On October 19, 1938, my predecessor in office, Hon. M. J. Yeomans, rendered you an opinion as to the right of the State of Georgia to grant an easement to the United States Government upon certain marsh lands in Camden County owned by the State which the Federal Government desired to use in constructing an inland water way. Judge Yeomans' ruling, which I believe to be correct, was that no official of the State of Georgia has any authority to grant an easement of State's property Without express legislative authority given therefor. It was also ruled in this opinion that property of the State could not be condemned without express legislative authorization. I am inclosing herewith a copy of that opinion. In so ruling, I am fully aware of Section 4 (11) of the Electric Membership Corporations Act of 1937 (Acts of 1937, pp. 644-659), which reads as follows: "Section 4. Powers of Corporations. Be it further enacted that each corporation shall have the power: " (11) In connection with the acquisition, construction, improvement, operation or maintenance of its lines, to use any highway, or any right of way, easement, or other similar property right, owned or held by the State or any political subdivision thereof, subject to reasonable rules and regulations as to safety as may be promulgated by the State Highway Commission, or subject to such reasonable terms and conditions as the governing body of such political subdivision shall determine." In my opinion, the purpose of the Legislature was to give electric membership corporations the right to use highways, rights of ways, and other easements owned or held by the State or its political subdivisions over the property of others, and not to give such corporations easements over property owned in fee by the State. This becomes apparent when it is considered that if this section were held to grant an easement over property owned in fee by the State, 228 no express grant or conveyance by any public official would be necessary in order for the corporation to exercise the powers granted by the above quoted Code section on any State property. And since the Milledgeville State Prison Farm is not under the jurisdiction of the State Highway Commission or a political subdivision of the State, the corporation could go upon this property at any place it so desired without being subject to the control provided for in this section of the Act. ELEEMOSYNARY INSTITUTIONS; MILLEDGEVILLE STATE HOSPITAL-Eligibility of State Welfare Board member to rent state farm and serve as county physician. June 25, 1940 Dr. Richard Binion Baldwin Memorial Hospital Milledgeville, Georgia I am pleased to acknowledge yours of the 23d instant replying to my letter of the 21st instant, and requesting certain legal advice as to your eligibility to continue to serve as physician at the training school at a salary of $100 per month, and upon the question as to whether there is any statute which would prohibit you, jointly with one Ralph Simmerson, from continuing to rent to the State Hospital a farm which both of you own; and whether, when you are sworn in as a member of the Board of Public Welfare you may continue to act as county physician and serve as chairman of lunacy commissions for your county and receive the fees prescribed by law. Section 89-904 of the Code provides: "No member of the Board of Regents of the University System or of the Board o:t Control of Eleemosynary Institutions or trustee or other officer of any State institution which is wholly or in part supported by the funds of the State, nor any partnership of which he is a member, shall make any contract with the governing board or trustees of such institution or any officer of such institution for the sale and purchase of merchandise or supplies for such institution whereby profit shall accrue to such board member or trustee or such partnership of which he is a member, nor shall such trustee or officer of such institution inake any profit or receive any money for the sale, handling or disposal of any crop or crops or property of such institution, nor shall such member, trustee or other officer of such institution make or be interested in any contract for supplies or merchandise for such institution, when such contract or the making of the same, is wholly or in part made or influenced by the action of the board governing such institution or the trustees thereof or is controlled by any officer of such institution, and any and all such contracts are hereby declared to be illegal and void: Provided, that any such contracts as are herein described may be made with a corporation of which any such board member or trustee is a stockholder if such member or trustee shall not vote on, nor participate in, the making of such contract: Provided further, that no board member or trustee of such State institution shall be prohibited from making contracts for furnishing supplies to the students or faculty of such institution for their individual use." Section 89-9915 provides: "Any member of the Board of Regents of the University System or of the Board of Control of Eleemosynary Institutions or trustee or other officer 229 of any State institution supported wholly or in part by funds of the State who shall make any profit out of any contract with the governing board or trustees of such institution or any officer thereof, whereby profit accrues to such trustee in the sale to such institution of any goods, wares, merchandise or supplies, or shall make any profit to himself out of the sale of any property, crop or crops of such institution, or any profit out of the handling of any property, crop or crops of such institution, shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished as prescribed in section 27-2500, and also upon such conviction his office shall become vacant, and it shall be the duty of the Governor, where the power to fill the vacancy is lodged in the Governor, to appoint some other person to fill such vacancy, or if any officer of such institution shall be found guilty of violating this section or section 89-904, then in such case he shall be discharged from his office in such institution, and shall not be eligible to be reelected or reappointed thereto, and such vacancies shall be filled by the Board or the authority which, under the law, has the right to fill such vacancy. " Construing these sections together, as applied to contracts made by a member of the State Board of Public Welfare, I am of the opinion that it is only such contracts that provide "for the sale and purchase of merchandise or supplies whereby a profit shall accrue" to a member of said board, or where the contract provides "for the sale, handling or disposal of any crop or crops or property of such institution," or where the contract is one "for supplies or merchandise for" any institution under the jurisdiction of the Board of Public Welfare which are made illegal. The statute does not purport to prohibit the Board of Public Welfare from entering into a contract with a member of said board for the performance of professional services involving skill or knowledge, and its language is not broad enough to prohibit or make illegal the continuance of any contractual relationship providing for the rendering of professional services by a member of the board where such member was under contract with the board before he became a member. Neither does the statute purport to prohibit a member or officer of the board owning property from renting said property to the board. As to the sale, handling or disposal of property, the statute only prohibits a trustee or officer of the institution from making a profit or receiving any money for the sale, handling or disposal of any crop or crops or property belonging to the institution. Where, as in your case, the property being leased is not the property of the institution, but property owned by you jointly with another person who is not a member of the board, the statute does not affect such transactions nor prohibit them. (Emphasis supplied. ) With reference to your employment as county physician and your service as chairman of the lunacy commissions in your county, I refer you to Sections 89-703 and 89-9913 of the Code. Section 89-703 reads: "All Statehouse officers, all solicitors general and solicitors of city and county courts, judges of city and county courts, and all officers and appointees of any department of the State who receive any fees or compensation other than their salaries shall keep a daily account of such fees and compensation and shall make out quarterly an itemized sworn statement of same and file such statement within 10 days after the termination of each quarter with the Comptroller General. " This section would require you to keep a daily account and make a quarterly itemized sworn statement of the fees received by you for your services on the 230 lunacy commissions, the report would be made to the Comptroller General. Section 89-9915 makes it a misdemeanor for those reqUired to make such reports failing to do so. ELEEMOSYNARY INSTITUTIONS; MILLEDGEVILLE STATE HOSPITALFunds from pay patients and sale of cotton goes into general funds of the treasury. February 22, 1939 Committee on Economy and Efficiency I have your letter of February 16, 1939, reciting that there is "approximately $11,000. 00 accumulated funds by reason of payments made by pay patients at MilledgeVille, and that there are also approximately 189 bales of cotton unsold from the Colony farm, which is a part of the Milledgeville State Hospital". You state that there are a number of past-due grocery bills and other pressing needs at Milledgeville. ' In connection with the above information, you ask the following questions: 1. "Is there any legal reason why this approximately $11, 000. 00 cannot now be used in the payment of such bills, or the buying of such goods and merchandise as the Board of Welfare sees fit, for the patients?" 2. "Is there any legal reason why this cotton cannot be sold and the proceeds used for the above-mentioned purposes?" 3. "Is there any binding contract as to the future payments made by pay patients to be located in the old bUildings, meaning buildings that are no part of the new Hospital Authority, requiring that this money paid by pay patients go to the new Hospital Authority?" By Acts 1937, pp. 355-368, the Board of Control of Eleemosynary Institutions (which Board was charged with the control and supervision of the Milledge- ville State Hospital) was abolished and all its functions, authority and duties were transferred to the State Department of Public Welfare created by that Act. Section 35-111 of the 1933 Code, relating to the old Board of Control of Eleemosynary Institutions, provides, in part, as follows: "All moneys received by said Board must be paid into the State Treasury." Except for the said quoted provision of Section 35-111 of the 1933 Code, re- qUiring all moneys received by the Board of Control to be paid into the State Treasury, I have been unable to find any authority, statutory or otherwise, with reference to the disposition of fees received from pay patients at the Milledge- ville State Hospital or with reference to the disposition of proceeds from the sale of products grown at the Milledgeville State Hospital. Section 92-3502 of the 1933 Code, however, provides that " . . . all fees not specially awarded to any particular officer . . . all moneys collected from any source or on any account, to which the State is entitled, not otherwise directed, shall be paid into the State Treasury." In view of the foregoing, it is my opinion that the fund of approximately $11, 000. 00, which has accumulated at the Milledgeville State Hospital by reason of payments made by pay patients therein, must be paid into the general funds of the State Treasury. The proceeds from the sale of the cotton in question, for the same reasons, must also be paid into the general funds of the State Treasury. 231 With reference to any contract pledging future payments made by pay patients located in buildings which are no part of the New Hospital Authority, it is my opinion that the proceeds received from such sources cannot be pledged to anyone, but must be paid into the general funds of the State Treasury. EXECUTIONS; COUNTY ORGANS-How changed. Rules for selection. December 13, 1939 Hon. J. Frank Powell Ordinary, Dooly County Vienna, Georgia This will acknowledge receipt of you:r letter of December 9th in which you state that the Ordinary, Sheriff and Clerk of the Superior Court have decided to make a change in the county organ of Dooly County from the Vienna News to the Dooly County Citizen and you request an opinion on the following ques- tions: "The Citizen has been established three years in February, 1940, and has been actually printed in this county and Vienna since the latter part of March of 1938. Will it be legal to make this transfer on January 1, 1940? If not, is there any law forbidding us to make the change on April 1, 1940? Is it necessary to publish in the News the notice of this change, and how many times prior to this change?" The Attorney General is authorized by law to render official opinions only when so requested by the Governor or by one of the officials of the Executive Department of this State upon matters directly affecting the State's interests. Anything which might be said in response to your inquiry, therefore, must be considered as an expression of my personal views upon the subject and not binding upon anyone. The preference with respect to legal advertising is to be given in the follow- ing order: 1. The newspaper published at the county site. 2. Any paper published in the county. 3. Any newspaper in the State having the largest or a general circulation in the county. See Sections 39-1101, 39-1104, Georgia Code of 1933, Braddy v. Whiteley, 113 Ga. 746. . The law with reference to making a change in the selection of the county organ is set forth in Section 39-1103 of the Code, which provides as follows: "No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff's sales, ordinary's citations or any other advertising commonly known and termed 'official or legal advertising' and required by law to be published in such county official newspaper, unless such newspaper shall have been con- tinuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, and no change shall be made in the official organ of any county except upon the concurrent action of the ordinary, sheriff and clerk of the superior court of said county or a majority of said officers: Provided, that in counties where no journal or newspaper has been established for two years the official organ may be designated by the ordinary, sheriff and clerk of the superior court, a majority of these officers governing." 232 It will be noted that Section 39-1103 requires continuous publication for two years but does not require that such continuous publication be within the county unless the language "that in counties where no journal or newspaper has been established for two years the official organ may be designated, etc." may be construed to have that meaning. In the case of McGinty v. Chambers, 182 Ga. 341, it appeared that before 1930 all the work of editing and publishing the Chatsworth Times was done at Chatsworth, the county seat of Murray County, but because of the economic depression the actual mechanical work of typesetting, proof reading, and printing has been done at the Calhoun plant in Gordon County, approximately 28 miles from Chatsworth, and the paper is labeled to be mailed to subscribers at the Calhoun plant and brought to Chatsworth where it is mailed. The Supreme Court said: "The uncontradicted evidence shows that the Chatsworth Times has been continuously published and mailed to a bona fide list of subscribers for 20 years and for a like period of time has published the legal advertisements of the county. While the evidence also shows that the actual mechanical work has been done at the Calhoun plant in Gordon County for the past two years, under a proper construction of Sections 39-1101 and 391103 the evidence demands a finding that the Chatsworth Times is established, and has been established for the past two years in Murray County, and is legally entitled to continue to receive the legal advertisements until some other newspaper entitled to be the official organ is so designated. " Under the construction placed upon Section 39-1103 by the Supreme Court it would, therefore, seem that as between two papers published at the county site the proper officers would have the authority to select either of them which although not continuously published at the county site for two years has been continuously published and mailed to a list of bona fide subscribers for a period of two years and has been established in the county for that period of time. Assuming that the Citizen has been continuously published and mailed to the list of bona fide subscribers for a period of two years and assuming further that it has been established in the county for that period of time, I believe it would be legal to make the transfer on January 1, 1940, even though it has not actually been printed in the county for a two year period. In reply to your second question, your attention is directed to Section 39-1107 of the Code, which provides as follows: "No sheriff, coroner, or other officer shall change the advertising connected with his office from one paper to another, without first giving notice of his intention to do so in the paper in which his advertisements may have been published. " Neither this Section nor any other law which I have been able to find specifies the number of times such notice is required to be published prior to the change. EXECUTIONS; COUNTY ORGAN8-How changed. Length of publication in the county required. December 8, 1939 Honorable J. N. Atkinson Editor, Baxley News-Banner Baxley, Georgia In our conversation of recent date you inquired as to the right of the proper county officers to change the official organ of the county from a newspaper which has been published at the county site for more than two years to a news- 233 paper which has only recently commenced publication at the county site but which has been published for more than two years outside of the county and has a general circulation within the county. Section 39-1101 of the Georgia Code of 1933 provides in part: "The sheriffs and coroners shall publish weekly, for four weeks, in some newspaper published in their counties respectively, -and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county-notice of all sales of land and other property executed by him; . . . " Section 39-1104 provides: "If the ordinary, sheriff, or other officer is unable to procure the advertisements at the rate herein prescribed, in a newspaper published at the county site of said county, he may have said advertisements published in any newspaper in this State having the largest general circulation in the county; Provided, said rates shall be agreed upon; . . . Provided, if there is no newspaper published at the county site, then any paper published in the county shall be next entitled to the public advertisements." Construing the above quoted code sections in pari materia, as must be done since they deal with the same subject matter, it will be clearly seen that preference with respect to legal advertising is to be given in the following order: (1) The newspaper published at the county site; (2) Any paper published in the county; (3) Any newspaper in the State having the largest or a general circulation in the county. See Braddy v. Whiteley, 113 Ga. 746. In 1910 an act was passed which imposed certain requirements upon newspapers before they were entitled to selection as official organ of the county and made provision as to the county officials who were authorized to change the official organ of the county (Acts 1910, page 87) . This act is codified as Section 391103 of the Georgia Code of 1933 and reads as follows: "No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff's sales, ordinary's citations, or any other advertising commonly known and termed 'official or legal advertising' and required by law to be published in such county official newspaper, unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper,. and no change shall be made in the official organ of any county except upon the concurrent action of the ordinary, sheriff and clerk.of the Superior Court of said county or a majority of said officers: Provided, that in counties where no journal or newspaper has been established for two years the official organ may be designated by the ordinary, sheriff and clerk of the Superior Court, a majority of these officers governing. " It will be noted that Section 39-1103 requires continuous publication for two years but does not require that such continuous publication be within the county unless the language "that in counties where no journal or newspaper has been established for two years the official organ may be designated etc.," may be construed to have that meaning. The Supreme Court in the case of McGinty v. Chambers, 182 Ga. 341, places a different construction upon the word "established". In that case it appeared that before 1930 all the work of editing and publishing the Chatsworth 234 Times was done at Chatsworth, the county seat of Murray County, but because of economic depression the actual mechanical work of typesetting, proofreading, and printing has been done at the Calhoun plant in Gordon County, approximately 28 miles from Chatsworth, and the paper is labeled to be mailed to subscribers at the Calhoun plant and brought to Chatsworth where it is mailed. The Supreme Court said: "The uncontradicted evidence shows that the Chatsworth Times has been continuously published and mailed to a bona fide list of subscribers for twenty years and for a like period of time has published the legal advertisements of the county. While the evidence also shows that the actual mechanical work has been done at the Calhoun plant in Gordon county for the past two years, under a proper construction of sections 39-1101 and 391103 the evidence demands a finding that the Chatsworth Times is established, and has been established, for the past two years in Murray County, and is legally entitled to continue to receive the legal advertisements until some other newspaper entitled to be the official organ is so designated. " Under the construction placed upon Section 39-1103 by the Supreme Court it would therefore seem that the proper officers would have the authority as between two papers published at the county site to select the one which, although not continuously published at the county site for two years has been continuously published and mailed to a list of bona fide subscribers for a period of two years and has been established in the county for that period of time over the one which has been continuously published at the county site for two years. You must understand, of course, that since the Attorney General is not authorized by law to render official opinions except when so requested by the Governor or by one of the officials of the Executive Department of this State, anything which might have been said in this letter must be construed as unofficial and not binding on anyone. EXECUTIONS; COUNTY ORGANS-How changed. Any paper with a general circulation and published in county for two years may qualify as official organ upon selection by proper county officials. December 13, 1940 , Hon. W. L. Bowen Publisher Telfair Enterprise McRae, Georgia I am pleased to acknowledge yours of the 4th instant, requesting my opinion as to whether the Telfair Free Press which, as your letter states, started publishing a paper several years ago in Helena, an incorporated town in Telfair County near McRae, the county seat, and which paper was moved to McRae three or four years ago and has been published in McRae since that time, but which paper has never secured their mailing privilege in McRae and continues to mail the paper from Helena, where the paper was first started, may be designated as the official county organ. Your letter would have received my earlier attention but for the fact that I have been busily engaged in the preparation and trial of several very important cases involving the vital interests of the State. Of course you realize that under the law prescribing the duties of the Attorney General I am not authorized to render official opinions except upon the written request of the Governor and to heads of the various State departments with reference to matters in which the State has an interest. Consequently, 235 what Is said in this letter must be taken as purely unofficial and is binding upon no one. You have directed my attention to Code Sections 39-1102 and 39-1103. I assume, therefore, that you are familiar with the language of these sections. In addition to these two sections which deal with the publication of citations, notices or advertisements by ordinaries, clerks, sheriffs, etc., and with the selection of the official organ of a county, respectively, I call your attention to Code Section 39-1101 which should, I think, be construed in connection with the other two Code Sections just referred to. In Section 39-1101 it is provided in part: "The sheriffs and coroners shall publish weekly, for four weeks, in some newspaper published in their counties respectively, -and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county-notice of all sales of land and other property executed by him, etc. " (Emphasis supplied.) In construing this section our Supreme Court in the case of, Coffee et al. v. Ragsdale, ordinary 112 Ga. 705 held, "When the sheriff of a county selects a newspaper in which to publish his legal advertisements, that newspaper becomes, under the code, the official medium for all county advertisements, and the code makes it the duty of the ordinary and the person or persons who have charge of county matters to publish their advertisements therein." This was the law as pointed out in the case of, Dollar, sheriff, et al. v. Wind 135 Ga. 760, until the General Assembly enacted the statute on August 15th, 1910, (Ga. Laws P. 87), by which Act the power to select the advertising medium of the county was removed from the sheriff alone and conferred upon the ordinary, the clerk of the Superior Court and the sheriff jointly, and they were prohibited from selecting a newspaper which had not been published for two years, if there was one in the county which had been published for that length of time. Under the Act of 1910, as now codified in Section 39-1103, the ordinary, sheriff and the clerk may designate any journal or newspaper as the official or legal county organ which has been continuously published and mailed to a llst of bona fide subscriberf for a period of two years, or which is the direct successor of such journal or newspaper; but said officers are not authorized to change the official county organ of any county except upon the concurrent action of any sheriff, ordinary or clerk. Under Section 39-1104 of the Code preference is to be given in the designation of an official county organ to a newspaper published at the county site, if any, and if there is no such newspaper then any paper published in the county shall be next entitled to the public advertisements. In construing the term "published in the county" as used in Code Section 39-1101, Justice Gilbert, speaking for the court in the case of, Carter v. Land, sheriff, et al. 174 Ga. 811, said, "Publishing a newspaper, as contemplated by the General Assembly with reference to the statute in question, means something more than the mere distribution of a newspaper. It means more than having it entered 236 at the post-office for distribution in the mails as alleged. . . we think that the act was meant to bring about, by as much as legislation could contribute, the encouragement of newspapers to own their local plant, or the payment of rent to owners of local real estate, or to encourage the employment of citizens or residents of the locality which the newspaper serves, and in turn to bring about patronage of local merchants, schools, churches, etc." It appeared in said case that the paper in question was the Catoosa County Record, and the facts with reference to the publication of said paper were that the mechanical work of printing the paper was done at Rossville in Walker County, about two miles from the Catoosa County line and was entered at the post office at Ringgold, Georgia, in Catoosa County, as second class mail matter and was mailed and released for publication there; that it had a bona fide circulation in the county of more than 600 and had been in operation for a number of years and the court held that under these facts the Catoosa County Record was not "published" in Catoosa County. In the case under consideration, however, the facts are reversed, for the Telfair Free Press is printed in McRae and all of the work in connection with its printing and publication is, insofar as your letter discloses, done in McRae and the only thing which is done in Helena is that the paper is mailed from the post office there. It would seem, therefore, that the determining factor as to whether a newspaper is published at the county site, if such is required in order for it to be legally designated as a county organ, is that it shall be prepared and printed at the county site, and the place from which it is mailed has littie, if any, value in determining the point as to its publication. However, under the statutes above referred to I am of the opinion that any paper which has been published in the county-whether at the county site or at some other place in the county-for a period of at least two years and mailed to a list of bona fide subscribers is qualified to be designated as the official county organ. See also in this connection the case of, McGinty et al. v. Chambers, clerk, et al. 182 Ga. 341, in which case it appears that all of the actual mechanical work on the Chatsworth Times, the paper in question in said case, was done at the Calhoun plant in Gordon County for the past two years. It was legally entitled to continue to receive the legal advertisements until some other newspaper entitled to be the official organ was so designated, even though it appeared that two other papers having general circulation in the county were nearer by several miles to the county than the Chatsworth Times. EXECUTIONS; COUNTY ORGANB-Change from weekly to semi-weekly doesn't effect eligibility. December 16th, 1940 Hon. Roy Emmet, Editor Cedartown Standard Cedartown, Georgia Dear Mr. Emmet: I am pleased to acknowledge yours of the 13th instant, requesting me to give you an official ruling as to whether the status of the Cedartown Standard as the official organ for Polk County would be affected by the fact that since such official designation it has changed from a weekly paper published only on Thursday to a semi-weekly paper published on Tuesdays and Thursdays. 237 Under the pertinent provisions of the law with reference to the selection of official organs as set out in 39-11 of the Code I am of the opinion that the mere fact that you have changed your paper from a weekly to a semi-weekly would not affect its status as the official county organ, and you would be authorized to publish legal citations, notices, etc., in either edition of your paper. After a paper is once designated as the official county organ, the only way that any change may be made in such designation is by the "concurrent action of the ordinary, sheriff and clerk of the superior court of said county or a majority of said officers. " I must advise you that what is said herein is purely unofficial and binding upon no one, for the reason that under the law I could not give you an official opinion upon the question propounded in your letter, except upon the written request of the Governor. I am glad to give you this information in a spirit of helpfulness and for whatever it may be worth to you. EXECUTIVE DEPARTMENT; GOVERNOR-Time in which he may revise bills. March 18, 1939 Hon. E. D. Rivers, Governor Referring to your inquiry as to the proper time for revision of bills passed by the General Assembly: Article 5, Section 1, Paragraph 16 of the Constitution of Georgia (Section 2-2616 of the 1933 Code) provides as follows: "Governor's veto. The Governor shall have the revision of all bills passed by the General Assembly before the same shall become laws, but two-thirds of each house may pass a law notwithstanding his dissent; and if any bill should not be returned by the Governor within five days (Sunday excepted) after it has been presented to him, the same shall be a law; unless the General Assembly, by their adjournment, shall prevent its return. He may approve any appropriation, and disapprove any other appropriation, in the same bill. and the latter shall not be effectual, unless passed by twothirds of each house. " In construing the above constitutional provision, the Supreme Court of Georgia, in the case of Solomon v. The Commissioners of Cartersville, 41 Ga., 157, at page 161, said: "If this was an original question, independent of any construction heretofore given by the Executive Department of the State Government, to this clause of the Constitution, we should be inclined to hold, that the Governor could not approve and sign any bill after the adjournment of the General Assembly; but on looking into the past history of our legislation, we find that it has been the practice for many years, for the Governor to take five days after the adjournment of the General Assembly, for the revision of bills passed by that body, and to approve and sign the same within that time, but not afterwards, and that a large number of the most important Acts now upon the statute books of the State have been so approved and signed, which usage and practice of the Executive Department of the State Government should not now, in our judgment, be disturbed or set aside. " 238 In the Solomon case, supra, the Act in question passed both houses of the General Assembly on March 16, 1869. The General Assembly adjourned sine die on March 18, 1869. Governor Bullock approved the Act under consideration on May 26, 1869. The court held that inasmuch as the bill was not approved and signed by the Governor until more than two months had elapsed from the day of the adjournment of the General Assembly, the same never became a law of the State. And in the case of Danielly v. Cabaniss, 52 Ga. 211, at page 223 (3) , the court held: "There seems to be no law, or rule of either house of the General As- sembly, providing any mode in which it is authoritatively to be ascertained when a bill is presented to the Governor for his signature. And the practice on the subject is not uniform. The fact ought in some way to appear of record, and on the act itself. Some of the governors seem to have made an entry on the enrolled bill; others have left it to the legislature to preserve the evidence. There ought to be legislation on the subject. The facts in this case, we believe, are that the Governor made no entry, and none was made by the house. At a subsequent session of the same legislature the matter was inquired into by a committee, and the act in question, after a report of the committee, was declared to have been duly enacted and become a law by the failure of the Governor to dissent within the constitutional period, the bill having been passed and presented more than five days before the adjournment. We think this is sufficient authentication of the fact and that the bill was duly passed. " In view of the above authorities, it is my opinion that where a bill is presented to the Governor less than five days before the adjournment of the General Assembly, the Governor may take five days (Sunday excepted) after the adjournment of the General Assembly to approve and sign the bill, but no approval can be made after that time. And where a bill is presented to the Governor five days or more (Sunday excepted) prior to the adjournment of the General Assembly, it must be returned by the Governor within five days (Sunday excepted) after it has been presented to him; otherwise the bill becomes law. EXECUTIVE DEPARTMENT; GOVERNOR-Power to require bonds of State officials to be written through local agents. November 15, 1940 Hon. E. D. Rivers, Governor I have your letter of November 15, 1940, as follows: "It has been brought to my attention that in a number of instances fidelity and surety bonds in favor of the State of Georgia, covering State officials and State employees, which are executed by fidelity and surety companies, as surety, are written through a licensed resident agent who is a salaried official or salaried employee of the surety company, and no commission thereon is received by any local agent. "I request an opinion as to whether or not the law requires such fidelity or surety bonds or contracts to be written or issued through licensed resident agents, and whether or not such bonds may be written or issued through a resident licensed agent who may be a salaried official or salaried employee of a fidelity or surety company, and whether or not the commis- 239 sions on such bonds are requi.red to be paid to the licensed resident agent. If the law does not make such requirement, is it within my power, as Governor, as a matter of policy, to provide that such bonds must be issued through a licensed resident agent other than a salaried official or salaried employee of a fidelity or surety company, and that the full commission be paid to the local licensed agent. If you determine that I can prescribe such requirements, will you kindly suggest a form of order in the premises. " Section 56-508 of the Ga. Code Ann., which is codified from Georgia Laws 1935, p. 140, provides that no licensed fire or casualty insurance company or company writing fidelity or surety bonds, shall write or issue any policy or indemnity contract on any risk in this State except through a resident agent licensed by the Insurance Commissioner. It is further provided in the same code section that no contract bond shall be issued by any company, except through an agent, resident of the county in which the work under contract is located, if the company has an agent, resident in the county in question. The full commission thereon, (meaning thereby the commission paid for the production of business by him) shall be paid to such resident agent. A further provision in said code section declares: "the words 'resident agent' as used in this section are deemed to mean resident agents engaged in the solicitation of such business from the public generally and shall not include any salaried employee of any insurance company doing business in this State; but shall include any agents of mutual insurance companies however compensated. " The latter provision was attacked as unconstitutional in the case of Hartford Steam Boiler Inspection and Insurance Company v. Harrison, in which case on appeal to the Supreme Court of the United States, 301 U. S. 459, 57 S. Ct. 838, the Court held: "Georgia statute permitting mutual insurance companies to act through salaried resident employees, but excluding stock companies from privilege of acting through salaried resident employees, held unconstitutional; there being no reasonable basis for such discrimination. " Since the above decision, the Insurance Commissioner of the State of Georgia has been compelled to license resident agents although they may be salaried employees of the company. The statute, as limited by the said decision of the Supreme Court of the United States, doubtless still requires fidelity or surety bonds issued by a fidelity or surety company to be written through a licensed resident agent. The statute requires contract bonds to be issued through an agent resident of the county in which the work under contract is located, if the company has an agent resident in the county in question. In the case of contract bonds, the full commission shall be paid to such resident agent. Therefore, there is no express provision of the statute left requiring bonds covering State officials or State employees to be written through a licensed resident agent other than a salaried employee of the company. There may be some question as to whether the language of the statute requiring the full commission to be paid to such resident agent extends to the class of bonds covering State officials or State employees. It is my opinion that it is within the power of the Governor as a matter of policy, as to bonds of State officials or State employees, to require the fidelity or surety bonds or contracts executed by a surety company, as surety, to be written or issued through a licensed resident agent other than a salaried official or salaried employee of the Company and require the full commission to be paid to such agent. 240 If you deem it advisable to pass such an order, the following form of order is suggested: "BY THE GOVERNOR: It is ORDERED that from and after November ____, 1940, the Governor will not approve any fidelity or surety bond or contract or renewal thereof issued in favor of the State of Georgia by a fidelity or surety company, association or corporation, as surety, covering State officials or State employees, UNLESS such bond or contract shall be written or issued through a resident agent licensed by the Insurance Commissioner of the State of Georgia, and unless such company, association or corporation shall pay or agree to pay such agent the full and regular agent's commission thereon, and which said agent shall be an agent other than a salaried official or salaried employee of a fidelity or surety company, association or corporation. This __ day of November, 1940." EXECUTIVE DEPARTMENT; GOVERNOR-Has no power to impound charter of municipality. Julys, 1939 Hon. E. D. Rivers, Governor I have your letter of July 6th to which you attach a letter from the Clerk of the Superior Court of DeKalb County and an excerpt from the grand jury presentments returned at the June Term, 1939 of DeKalb Superior Court. The said excerpt concerns the finding of the grand jury relative to the operation of the Town of North Atlanta. After making certain recitals the presentments read as follows: "We, therefore, recommend that the Governor of the State of Georgia seize and impound the charter, monies and records of this Town until the next session of the General Assembly at which time we wm recommend the said charter be revoked. " You request that I review the said grand jury recommendation and advise you whether or not you will be authorized to carry out the recommendations therein made of you. I assume that you would like to comply with the recommendations of the DeKalb grand jury if you can properly and lawfully do so. A municipal charter is granted by the General Assembly and the power and authority granted thereunder can only be amended or repealed by an act of the same body. I do not find any authority given by the Constitution or the statutes of this State which would authorize the Governor to do the things requested of him by the said grand jury recommendation. Therefore, as much as I would like to find a way by which you could carry out the recommendation made of you by the DeKalb County grand jury, I am compelled to reach the conclusion that you do not have such power under the Constitution and laws of this State. EXECUTIVE DEPARTMENT; BUDGET BUREAU-Powers. April 12, 1939 Committee on Economy and Efficiency This will acknowledge yours of the lOth instant requesting an opinion upon the following questions: (1) What are the powers of the Budget Bureau? 241 (2) Do the powers of the Budget Bureau include the power to increase an allotment to a department over and above the request submitted by the department when it submits its budget for the quarter? (3) Do the powers of the Budget Bureau include the power to add additional employees to the payroll of a department over and above the employees included on the budget submitted by the department for approval of the Comrmssion? (1) In answering the first question I might say that the powers of the "Budget Bureau", consisting of the Governor, as ex-officio director, and the State Auditor, as assistant director, of the budget are set out in Chapter 40-4 of the Code, and are as follows: (a) To require from the proper state officials expending or supervising the expenditures of State monies and appropriations such itemized estimates and other information, in such form and manner and at such times as the director shall direct. (b) To prescribe the form and manner in which such estimates shall be submitted and the time of submission. (c) Provide for public hearings on all estimates and require the attendance at such hearings of representatives of all departments, agencies, boards or institutions applying for said monies and appropriations. (d) After such public hearings or after examination of the estimates submitted, the director may in his discretion revise all estimates, except those for the legislative and judicial departments. (Emphasis supplied.) (e) To advise and confer with the governor-elect in the preparation and revision of the estimates. (f) To submit, within seven days after the convening of General Assembly a budget in printed form covering the ensuing two fiscal years, which shall contain a complete plan of proposed expenditures and actual revenues and expenditures for each of the particular fiscal years to which it relates. (g) If the proposed expenditures in the budget exceeds the estimated revenues therefor, the Governor shall recommend the sources from which the additional revenues shall be provided. (h) The Governor shall submit to each House of the General Assembly Printed copies of a budget message containing any explanations or comments he may desire to make as to important features of the budget and printed copies of a tentative bill for all appropriations under the budget, clearly and properly clarified for each fiscal year in the ensuing biennial period. (i) To amend or supplement the budget to correct an oversight or in case of emergencies, with the consent of the General Assembly, before final action thereon by the General Assembly, by delivering such an amendment or supplement to the presiding officer of each House. The duties and powers above enumerated clearly relate to the preparation of a budget for submission to the General Assembly. Obviously it was the intent of the law to require the preparation of this budget bill for the guidance of the General Assembly in making appropriations to the various departments, boards, bureaus and institutions of the State government. (2) As to whether the Budget Bureau has the power to increase an allotment to a department over and above the request submitted by the department When it submits the budget for the quarter, I am of the opinion that under the Provisions of Section 7 of the act establishing the Budget Bureau, the Governor may increase an allotment to a department over and above the amount asked for in the requisition if in his judgment the requests do not conform to the Provisions of the act of the General Assembly making appropriations. In other 242 words, if the requisition for an allotment to carry on the work of an agency during the ensuing quarter does not contain a sufficient amount for expenses or salaries required by law to be paid, and for which the legislative body has made ample provision by appropriation or allocation of funds, the Governor may increase the allotment to the department so as to conform to the law. For instance, the salary fixed by law to be paid to county school superintendents from State funds should be included in the budget of the State Department of Education. If the head of the spending agency-in such case, the State Department of Education-should fail to include the salaries of the county school superintendents in his requisition for allotments for the ensuing quarter, the Governor would have the authority to amend or revise the requisition so as to include such salaries, although the effect of such an amendment or revision would be to increase the allotment to a department over and above the request submitted by the department. See City of Ardmore v. Excise Board of Carter County, 8 Pac. (2d) 2, 7, and 8. Of course, the Governor would have no authority to increase the allotment to a department to such an extent that the increase would cause the budget bill or appropriation act for said department to be exceeded and a deficit incurred thereby. (3) Answering your third question, I am of the opinion that the powers of the Budget Bureau do not include the power to add additional employees to the payroll of a Department over and above the employees included on the budget submitted by the department for approval of the Budget Bureau. There is no express power given to the Budget Bureau with reference to the employment of personnel of departments submitting requisitions for allotment of funds. It is obvious, therefore, that the Budget Bureau is without authority to add additional employees to the payroll of a department over and above the employees included on the budget submitted by that department. Of course, the Budget Bureau could indirectly effect the employment of additional personnel in a department by increasing the allotment to said department so as to take care of additional personnel which might be needed in the department. But I think that the Budget Bureau would transcend its powers should it attempt to require the spending agency making the requisition to add to its payroll, John Jones, Mary Smith, or Sam Brown. This statement might be subject to some further qualification. For instance, if tnere should be a statute which required a certain department to maintain a personnel of a minimum figure, and the Budget Bureau found that the requisition for an allotment did not indicate that the law was being complied with and minimum statutory personnel was being employed by the department, then the Budget Bureau would have the power to require the spending agency to add additional personnel so as to comply with the statute appertaining to that department. EXECUTIVE DEPARTMENT; BUDGET BUREAU-Powers, further discussed. April 14. 1939 Committee on Economy and Efficiency This will acknowledge yours of the 13th instant requesting my opinion as to the power of the Budget Bureau with respect to the right to approve or disapprove the aggregate amount of quarterly budgets submitted for approval and to strike certain personnel from a budget submitted if the budget as submitted is within the amount of money available for the department in question under the General Appropriation Bill. 243 In my opinion of the 12th instant I held "There is no express power given to the Budget Bureau with reference to the employment of personnel of departments submitting requisitions for allotment of funds." I might add to this statement that there is no express power given to the Budget Bureau to strike personnel from a budget submitted, if the budget as submitted is within the amount of money available for the department in question under the General Appropriation Bill. However, I am of the opinion that by necessary implication the Governor, as the Director of the Budget, is given this power under the provisions of Code Section 4Q-409 where he finds that any particular person whose name is carried on a budget submitted for his approval does not measure up to the standards of efficiency for public employees prescribed by him, as Director of the Budget. Section 40-409 provides in part: "The Director of the Budget shall have such supervision of every public department, agency and institution as shall be necessary to secure uniformity and accuracy of accounts and efficient conduct of its fiscal affairs. He may inquire into the methods of conducting the affairs of any public body. . . and he may prescribe and direct the use of standards of efficiency for public employees. " When it is considered that the broad purpose underlying the creation of the Budget Bureau was to promote economy and efficiency in the management of the State's finances (see Code Section 40-401), it is apparent that the whole object of the statute would be thwarted insofar as efficient operation of the State Government is concerned if the Budget Bureau, upon finding that inefficiency existed among the personnel of a department, was nevertheless powerless to do anything about it The object of the statute would be defeated if the Director of the Budget, after prescribing "standards of efficiency for public employees", was without authority to require such standards to be observed in the employment of efficient personnel by the departments. So we hold that the power of the Governor, as Director of the Budget, to "direct the use of standards of efficiency for public employees" when construed in connection with his power of supervision over every public department, agency and institution for the purpose of securing "efficient conduct of its fiscal affairs" necessarily means that if the Governor, as Director of the Budget, for example, finds that some person who has been declared non compos mentis or is otherwise mentally or physically inefficient, is carried upon the payroll of a department, the Governor, as Director of the Budget, may refuse to approve any budget which carries the name or names of such persons upon it. It is obvious that the employment of inefficient persons involves the fiscal affairs of a department, in that the employment of such persons is, in effect, a waste of public funds and therefore since the statute vests the Director of the Budget with the power of supervision over all departments insofar as is necessary to secure efficient conduct of its fiscal affairs I am of the opinion that the Governor may refuse to approve any budget which carries the name of any person who does not meet the standards of efficiency prescribed by the Governor for public employees. (Emphasis supplied.) Giving the statute this construction makes it virile and effective; a contrary construction woUld reduce the Budget Bureau to the status of a body with power only to make recommendations. The construction placed upon the statute in this opinion, and by the various executives who have acted under the statute as Director of the Budget Bureau, it seems to me, carries out the purpose and intent of the General Assembly and gives force and effect to the fundamental rule of construction that all statutes should be construed so as to give effect to the legislative intent, which, in this case, is the promotion of economy and 244 efficiency in the various departments of the State Government. (Code Section 102-102 (9)). I am fortified in my construction of the statute in question by the continuous and unbroken usage and practice of the executive department of the State Government, since the enactment of the statute creating the Budget Bureau in 1931. The Executive Head of each successive administration, since the enactment of this statute, has construed it to authorize the Governor to strike personnel from a budget where it is found that inefficiency exists. In the case of Epping v. Columbus, 117 Ga. 263, the Supreme Court, speaking through Justice Cobb said, "It is-well settled that in determining the meaning of words in a constitution which are doubtful, ambiguous, or equivocal, the long-continued practice of co-ordinate departments of the government may well be resorted to by the judicial department as an aid in determining what is the true meaning of words contained in the instrument. "In Solomon v. Commissioners, 41 Ga. 161, Judge Warner in referring to the power of the Governor to approve bills after the adjournment of the legislature uses this language: "If this was an original question, independent of any construction heretofore given by the executive department of the State government to this clause of the constitution, we should be inclined to hold that the Governor could not approve and sign any bill after the adjournment of the General Assembly; but on looking into the past history of our legislation, we find that it has been the practice for many years for the Governor to take five days after the adjournment of the General Assembly for the revision of bills passed by that body, and to approve and sign the same within that time, but not afterwards, and that a large number of the most important acts now upon the statute books of the State have been so approved and signed, which usage and practice of the executive department of the State government should not now, in our judgment, be disturbed or set aside. " EXECUTIVE DEPARTMENT; ATTORNEY GENERAL-Power to render opinions. June 24, 1939 Honorable W. L. Miller Chairman State Highway Board This will acknowledge receipt of your communication of June 23rd, which was delivered to my office this morning. Your communication seeks my official opinion as to the authority of the Chief Executive of this State to pass an executive order, a copy of which you inclose with your letter. In connection with your request, I desire to call to your attention the following provisions of law with reference to the duties of the Attorney General: Paragraph 2 of Section 10 of Article 6 of the Constitution of Georgia (2-3802 of the Georgia Code of 1933) provides as follows: "Duties. It shall be the duty of the Attorney General to act as the legal adviser 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." (Emphasis supplied.) Section 40-1602 of the Georgia Code of 1933 provides as follows: "Duties required by Governor. -It is the duty of the Attorney General when required so to do by the Governor- (Emphasis supplied. ) 245 1. Written opinion. -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. 2. Preparation of contracts. -To prepare all contracts and writings in relation to any matter in which the State is interested. 3. Attend trial of what cases. -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. 4. Legal adviser of Executive Department. -To act as the legal adviser of the Executive Department. (Emphasis supplied. ) 5. In Supreme Court. -To represent the State in the Supreme Court in all capital felonies. 6. In other courts; other services. -To represent the State 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. " (Emphasis supplied.) Section 40-1610 of the Georgia Code of 1933 provides in part as follows: "It shall be the duty of the Department of Law, when requested, to advise with the General Assembly, either branch thereof or any committee of the same, and to aid in the preparation of proposed legislation. " Since I have been Attorney General I have endeavored to be helpful to the General Assembly and the committees of the same at all times by following the letter and spirit of this provision of law. It would be highly improper and unauthorized by law for me as Attorney General to render an opinion to some minor employee in the State Highway Department in reference to your authority as Chairman of the State Highway Department. It would be highly improper and unauthorized by law for the Attorney General to render an opinion to you as Chairman of the Highway Department and as an appointee of the Governor touching the authority or duties of the Chief Executive of this State. The Governor did not request my opinion as to his authority in promulgating and issuing the order to which you refer. Had he done so, I would have been delighted to have given him my official opinion. He has not now requested my opinion as to his authority in reference to promulgating and issuing the said order. Were he to do so, I would render an official opinion thereon. So far as I know, no Attorney General in the history of the State has ever rendered an official opinion to an appointee of a Governor dealing with the authority of the Governor to pass an order effecting the Department of the appointee or the appointee himself. Trusting that you appreciate the proprieties of this situation and assuring you that I have no desire to allow the Department of Law, or myself personally, to become involved in any controversy between the Governor and one of his appointees, I am, with highest personal regards, sincerely yours. EXECUTIVE DEPARTMENT; ATTORNEY GENERAL-Number and assignment of assistants. Authority of Governor to appoint special assistants. May 3, 1939 Committee on Economy and Efficiency I have the honor to acknowledge your communication of April 27, 1939, in which you state the following: 246 "Please refer to Section 40-1609 of the 1933 Code of Georgia and give this committee an opinion as to whether or not the Governor may, under this code section, appoint full time special Assistant Attorneys General assigned to various departments of the State government to do general legal work for the departments, and paid monthly salaries. "Please give your opinion as to the purpose of establishing the Law Department, in which Act it provides for the establishment of the Law Department and appointment of Assistant Attorney Generals. Please advise how and who appoints the Assistant Attorney Generals, and the number authorized under the law. As to number, we have in mind the Reorganization Law and any other law relative to appointment of Assistant Attorney Generals. "Please also advise where the Assistant Attorney Generals are now assigned, giving the name of each with their respective assignments. Please also advise what special legal assistance is being received by the Law Department, by acquirement by the Law Department or any other department of the State. " Section 40-1609 of the Georgia Code of 1933 provides: "Authority of Department. Employment of counsel. -The Department of Law is hereby vested 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 thereof. The several departments, commissions, institutions, offices and boards of the State Government are hereby prohibited from employing counsel in any matter whatsoever. However, the Governor in specific instances and on special causes may appoint therein and thereto for such specific service additional Attorney General, to be compensated therefor as the Governor may direct. " (Emphasis supplied. ) It is my opinion that what constitutes "Specific instances" and "special causes" is, under the foregoing Code Section, a matter that addresses itself to the sound judgment and discretion of the Chief Executive of the State. Your Committee requests my opinion as to the purpose of establishing the Law Department. The Department of Law was established under and by virtue of the Reorganization Act of 1931 (Georgia Laws 1931, pages 7, 38 et seq.) . The title of the Reorganization Act describes the Act as "An Act to simplify the operations of the Executive Branch of the State Government by abolishing certain offices, boards, departments, commissions and institutions; creating others, redistributing the powers, duties, and functions of said Executive Branch among such offices, boards, commissions, and departments as are herein created or hereby retained; defining such powers, duties, and functions and co-ordinating the same; fixing salaries, terms of office, method of appointment and election, duties, and qualifications of the personnel in charge thereof; repealing all laws and parts of laws in conflict herewith; and for other purposes." Accordingly, it is my opinion that the Reorganization Act, and consequently that part of it creating the Department of Law, had for its purpose the simplification and co-ordination of the operations of the Executive Branch of the State Government, the redistribution of the powers, duties, and functions of the Executive Branch of the State Government and the definition of such powers, duties and functions. The Sections of the Georgia Code of 1933 dealing with the appointment of the Assistant Attorneys General are Sections 40-1607 and 40-1608, which said Sections provide as follows: 247 "Department of Law created. Attorney General and assistants. Salary of Attorney General. -There is hereby created a Department of Law, with the Attorney General at the head thereof, with six assistant Attorneys General of equal rank among said assistants. The said assistant Attorneys General shall give their full time to the duties of the office, and shall not otherwise engage in the practice of law during their tenure of office. One of said assistant Attorneys General shall serve the Highway Department as its special attorney, and another shall serve the Public Service Commission as its special attorney; the salaries of the two said assistants shall be paid out of the funds of said respective departments. The Attorney General shall be paid $5, 500 per annum, payable monthly. "Assistant Attorneys General; appointment, salary, and removal.Five of the six assistant Attorneys General shall be appointed by the Governor, with the approval of the Attorney General, and subject to confirmation by the Senate. The Attorney General may appoint the other assistant Attorney General. Each assistant Attorney General shall receive a salary of $5, 000 per annum, payable monthly. Any assistant Attorney General may be removed at any time by the Governor with the approval of the Attorney General." Under the present set-up of the Department of Law, Hon. Marshall Allison, Assistant Attorney General, is assigned to the Public Service Commission under and by virtue of Section 40-1607 of the Georgia Code of 1933, supra; Hon. Lamar Murdaugh, Assistant Attorney General is assigned to the State Highway Department, under and by virtue of the Georgia Code of 1933, Section 40-1607, supra; Hon. B. B. Zellars, Assistant Attorney General, is assigned to the State Revenue Department under and by virtue of Georgia Laws, Extra Session, 1937-1938, pages 77, 83, which said Act provides that an Assistant Attorney General is to be attached to the Department of Revenue. Hon. Duke Davis, Hon. Herschel E. Smith and Hon. E. J. Clower, Assistant Attorneys General in the office set-up are by me assigned to various routine matters touching various State Departments but they have no special legal assignments. You ask that I "please also advise what special legal assistance is being received by the Law Department, by acquirement by the Law Department or any other department of the State. '' Since I have had the honor of being Attorney General, the Department of Law has not employed or requested the employment of any special legal assistance. EXECtTTIVE DEPARTMENT; STATE AUDITOR-Has no legal duty to audit books of State Hospital Authority. November 22, 1939 Hon. Zach Arnold State Auditor This will acknowledge receipt of your letter of November 17th in which you state: "Please advise me at your earliest convenience whether or not it is the duty of this Department to audit the books of the State Hospital Authority, created under an Act found in Georgia Laws, 1939, pp. 144 to 159, inclusive. Section 2 of the Act creating the Authority states that 'it shall be deemed to be an instrumentality of the State of Georgia and a public corporation'. " The Act approved February l, 1939 (Acts of 1939, pp. 144 to 159) , creating the 248 State Hospital Authority, does not specifically make provision for an audit of the books of the State Hospital Authority by the State Auditor. Therefore, resort must be had to those provisions of law defining the duties and powers of the State Auditor for a determination of the question. Subsection (b) of Section 40-1805 of the Georgia Code of 1933 provides as follows: "The duties and powers of the State Auditor shall be as follows: "(b) To thoroughly examine all financial transactions of all the State Departments, institutions, agencies, commissions, bureaus and officers, and keep such accounting records as are necessary to provide and maintain a current check upon the fiscal affairs and transactions of all State departments, institutions, agencies, etc. " Subsection (c) of Section 40-1805 makes it the duty and power of the State Auditor "to examine and thoroughly audit, at least once a year, and more frequently if possible, each and all of the books, records, accounts, vouchers, warrants, bills, and all other papers and records of each and every department, institution, agency, commission, bureau, and officer of the State which or who receives funds from the State or which is maintained in whole or in part by public funds or fees or commissions . . . " The question resolves itself into a determination of whether the State Hospital Authority is a State department, institution, agency, commission, or bureau within the provisions of the foregoing Code section. The Act creating the State Hospital Authority makes it a self-supporting enterprise. It may be described as a special public corporation authorized to incur obligations which are payable solely from its revenues without recourse to taxes and special assessments. It is granted many powers which are not conferred upon and some of which are prohibited departments, agencies, institutions or officers of this State. Section 2 of the Act provides in part as follows: "There is hereby created a body corporate and politic to be known as the State Hospital Authority, which shall be deemed to be an instrumentality of the State of Georgia and a public corporation, and by that name, style and title said body may contract and be contracted with, sue and be sued, implead and be impleaded, and complain and defend in all courts of law and equity ... " Under Stlction 4 of the Act, the Authority may acquire real property or rights or easements therein or franchises necessary or convenient for its corporate purposes, and may take such property in its own name and use the same so long as its corporate existence continues. It may also acquire the title to real property from the State of Georgia upon payment to the State Treasurer, for the credit of the sinking fund of the State, of the reasonable value of-such lands. It may borrow money for any of its corporate purposes and issue negotiable revenue bonds payable solely from the earnings of such projects and may provide for the payment of the same and the rights of the holders thereof. It may also exercise any power usually possessed by private corporations performing similar functions, which is not in conflict with the constitution and laws of this State, and may do all things necessary and convenient to carry out the powers expressly given by the Act. As further illustrative that the General Assembly, in creating the State Hospital Authority, intended it to be a distinct entity, it might be pointed out that under Section 16 of the Act it is provided that the State itself will not compete with the Authority to such an extent as to affect adversely the interest and rights of the holders of its bonds. 249 It is further specifically provided in Section 6 of the Act that the revenue bonds issued under the provisions of the Act shall not be deemed to constitute a debt of the State of Georgia or a pledge of the faith and credit of the State, but such bonds shall be payable solely from the fund provided in the Act therefor from earnings and the issuance of such revenue bonds shall not directly or indirectly or contingently obligate the State to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment. While the provisions of the Act hereinabove referred to are by no means exhaustive, they illustrate clearly the intent of the General Assembly to create a public corporation as a separate and distinct entity and not as a department, institution, agency, commission or bureau of the State. Prior to the creation of the State Hospital Authority there already existed a precedent in this State for the creation of a public corporation as an entity distinct from the State. In the case of State of Georgia v. Regents of the University System of Georgia, 179 Ga. 210, the question presented was as to the authority of the Regents of the University System to contract with an agency or department of the Federal Government under which The Regents of the University System proposed to obtain a loan from the Federal Government to be used by the Regents in the construction of new buildings at different branches of the University System. The loan was to be repaid from receipts, revenues and income of the completed projects. The State attacked the agreement, contending among other things that the proposed contract would be in violation of that section of the Constitution of this State which prohibited any debt from being contracted by or on behalf of the State except for certain specified purposes. The Supreme Court of this State held The Regents of the Universlty System of Georgia, which was created by Section 45 of the Reorganization Act of August 28, 1931 (Acts of 1931, page 20) in place of the Trustees of the University of Georgia, to be a legal entity as distinct from the State, or a part of the State, or an agency of the State. It was determined, therefore, that since The Regents of the University System of Georgia was a corporation and a distinct legal entity, any liability which was incurred under the contract would be a debt of the corporation and not a debt of the State. As stated by the court on page 222 of the opinion, "The university corporation is not the State, or a part of the State, or an agency of the State. It is a mere creature of the State, and a debt of the creature does not stand upon a level with the creator and never can rise thereto." The foregoing is merely illustrative of the creation of a public corporation as an entity distinct from the State itself. As a matter of fact, by statute the status of the Regents of the University of Georgia has subsequently been changed. I am of the clear opinion, in view of what has been said hereinbefore, that there is no legal duty imposed upon the State Auditor to audit the books of the State Hospital Authority. However, as a matter of public information I think that it would be a fine thing for your department to make an audit of the State Hospital Authority subject to permission from them to do so so that the public can have the benefit of your examination. 25() EXECUTIV.E DEPARTMENT; SUPERVISOR OF PURCHASES-Required to give preference to Georgia products. May 3, 1939 Committee on Economy & Efficiency Answering yours of the 2d instant with reference to the law of this State requiring State Departments to give preference to Georgia products in making purchases...! beg to refer you to Sections 11 and 12 of the Act approved March 29, 1937 (Ga. L. 1937, p. 503, 511), which provide as follows: "Section 11. It shall be the duty of the Supervisor of Purchases in the purchase of and in contracting for any supplies, materials, and equipment and/or printing to give preference as far as may be reasonable and practicable to such materials, supplies, equipment and/or printing as may be manufactured or produced in the State of Georgia. It being the intention of this section to use in so far as is practicable Georgia products and/or Georgia labor; Provided, however, that in giving such preference no sacrifice or loss in price or quality should be permitted, and provided further that preference in all cases shall be given to surplus products or articles produced and/or manufactured by other State departments, institutions or agencies which are available for distribution. "Section 12. The Supervisor of Purchases in awarding of contracts, all things being equal, shall give preference to local sellers of Georgia products when it is possible to do so and the interest of the State is not sacrificed, and the quality and prices permit it. " These sections were not repealed or amended by the Act known as House Bill No. 621, approved March 24, 1939. FOOD AND DRUGS-Regulations may be promulgated by Commission of AgricUlture. May 15, 1939 Hon. Columbus Roberts Commissioner of Agriculture I have a letter from the Hon. J. Preston Yarbrough, State Chemist, dated ' May 13, 1939, asking if the Commissioner of Agriculture has authority under Section 42-106 of the 1933 Code to promulgate the following regulations: "1. Each person;. firm, corporation, association or physician who sells at wholesale .or retail, gives away, barters, exchanges, distributes or possesses in this State any amount of amytal; luminal, veronal, barbital, acid diethylbarbituric, sulfanilamide, prontylin, neo prontosil, or any salts, derivatives or compounds of the foregoing substances or any preparation containing any of them shall, upon the effective date (June 1, 1939) make a complete inventory of all stocks upon hand. Such inventory to be written in ink, signed by the Registered Pharmacist who made such inventory, shall be kept in a safe and convenient place. "2. Invoices showing purchases of any of these products shall be kept in a separate file or a record book shall be kept giving number and date of invoice and from whom purchased. "3. All prescriptions for any of these products shall be kept upon a separate file. "4. All prescriptions for any of these products shall be marked upon prescription and upon label the inscription, "not to be refilled". 251 "5. Hospitals and Laboratories may buy and have in their possession such of these products as may be necessary for scientific purposes. Accurate records of purchases and disposition shall be kept, "6. All records and prescriptions shall be kept for a period of two years. "7. Notice of any loss of any of these products shall be immediately made to the Chief Drug Inspector. " While the "Dangerous Drug Act", effective June 1, 1939, does not specif- ically purport to amend Chapter 42-1 of the 1933 Gode, which said chapter deals with food and drugs, and under which 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 Chapter 42-1 of the 1933 Code, and as in his judgment will best carry out the requirements thereof, it is my opinion that the proposed regulations are entirely reasonable and proper and may be promulgated by you. FOOD AND DRUGS-Coconut pies cannot be sold between June 1st and September 1st. June 21, 1940 Hon. James J. Gary Hamilton, Georgia This will acknowledge receipt of your letter of June 17th in which you state: "Making the statement in a crowd, that it was against the Pure Food Laws of the State of Georgia to have coconut pies in cafes at this time of the year, I was ridiculed to a bitter end. Please enlighten us on the subject, so that I may stand my ground against great odds. " I am enclosing herewith, a bulletin issued by the Georgia Department of Agriculture relating to the adulteration, misbranding and sanitary handling of foods, and rules, regulations and food standards of the State of Georgia. Your attention is called to Rule No. 68 on page 35 of this bulletin which reads as follows: "RULING 68. From June 1st to September 1st of each year, the following pies are prohibited from manufacture and sale: Coconut cream pies, coconut custards and others which shall hereafter show any evidence of causing food poisoning." I hope, fortified by the information contained in the enclosed bulletin, you can stand your ground against great odds. FOOD AND DRUGS-Cakes for sale containing artificial coloring must be labelled. March 16, 1939 Hon. Columbus Roberts Commissioner of Agriculture I have a letter under date of March 13, 1939, from Dr. Yarbrough, State Chemist, requesting an opinion as to your authority to promulgate the following ruling: "When artificial color, such as yellow, egg shade, or orange, is added to the body of cake, a statement, not less than one fourth the size of the largest type used shall appear upon the label, stating that the .product is 'artificially colored'." 252 Section 42-109 of the 1933 Code provides that in case of food, it shall be deemed to be adulterated: "If it shall be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority shall be concealed." l Section 42-106 of the 1933 Code provides that the Commissioner of Agricul~ f ture, with the advice of the Attorney General, may establish such rules and ' regulations as shall not be inconsistent with the provisions of the Food and Drug I Act, and as in his judgment will best carry out the reqUirements thereof. ',i In view of the fact that when a cake contains artificial coloring, it may be , said that it is an adulterated article under and by virtue of Section 42-109 of the 1933 Code, and its sale might therefore be entirely prohibited, it is my opinion that the proposed ruling would be entirely reasonable. II1 I FOOD AND DRUGs-Dangerous drugs can only be dispensed on written prescrip- f tion of a physician. , May 29, 1939 Brittain Brothers Company Drug Department Lindale, Georgia I am pleased to acknowledge receipt of your letter of May 26th inquiring as to whether or not, under the "Dangerous Drug Act", prescriptions may be taken over the telephone, and whether or not the prescriptions can be legally refilled. I am glad to give you my idea on this, with the understanding that it is not an official opinion. This Act provides that it shall be unlawful for any person, firm or corpora- tion to sell, give away, barter, exchange, distribute or possess in the State of Georgia any of the prohibited drugs except upon a prescription of a duly licensed physician, and the prescription shall be compounded only by registered phar- macists. The pharmacist shall in each case place upon the container the name of the patient, name of the physician prescribing such drug, name and address of the drug store or pharmacy, together with the date of the prescription. I would not construe this Act as prohibiting a pharmacist from taking a pre- scription over the telephone from a duly licensed physician, but in reference to this Act the Commissioner of Agriculture has promulgated certain rules under authority of Section 42-106 of the 1933 Code, one of these rules being as follows: "All prescriptions for any of these products shall be marked upon pre- scription and upon label with the inscription 'Not to be refilled'." So it occurs to me that while the druggist may take the prescription over the telephone, he would not be authorized to refill the prescription whether it was taken over the telephone or handed to him by the physician or patient. FOOD AND DRUGs-Orders for dangerous drugs may not be taken over the telephone except in cases of emergency. June 1, 1939 Brittain Brothers Company Drug Department Lindale, Georgia Since writing you on May 29, 1939, in reference to dispensing "dangerous drugs" upon a telephone order of a physician, I beg to advise that the State Drug Officials have determined that no order for dangerous drugs may be taken 253 over the telephone except in case of emergency. In other words, they have adopted a regulation to the effect that dangerous drugs can be dispensed only on the written prescription of a physician. I am writing you so that you may be governed according to this regulation in the Drug Department. FOOD AND DRUGS-"Public dairy" defined in Milk Control Act. August 3, 1939 Honorable James A. Grant, Representative, Habersham County Alto, Georgia This will acknowledge yours of recent date requesting information as to how many cows are required to be owned before the person owning them will be considered as operating a dairy, and before such person would be required to have sanitary floors, etc. There is no statute describing the ownership of any particular number of cows as a test whether or not such person is owning or operating a dairy and thus subject to the Dairy Law of 1929, a copy of which in pamphlet form is iilclosed herewith. You will note that on page 9 of this pamphlet (section 2) a "public dairy" is defined to mean "any place where milk or cream are purchased from producers and sold or kept for sale, either at wholesale or retail". So, if a person keeps only one cow and sells her milk or cream at wholesale or retail he would be conducting a "public dairy" within the meaning of said act, and would be subject to the regulations prescribed therein, as well as those prescribed by the State Veterinarian. Of course, in the act creating the Milk Control Board (Ga. L. 1937, p. 247) certain definitions are given and regulations prescribed. I surmise that you are not interested in this act, since no election has ever been held in Habersham County creating a "milk shed". If the inclosed pamphlet does not give you all the information desired, do not hesitate to write me again. FOOD AND DRUG8-"Stores" do not have vote in milk shed election. June 27, 1940 Hon. George A. Wright "Reliable Druggist" Tifton, Georgia This will acknowledge receipt of your letter of June 19th in which you state: "There was a man in the store today and said he was from the State Milk Control Board and that I would have to pay him a license for handling milk. The thing I do not understand about it is that it is optional in each milk shed and the dairyman vote as to whether we will have this license or tax. If the dairyman, i. e. the wholesaler, can have a meeting and vote to tax or license all the retailers in a community without the retailer having any sayso in it, that sounds like taxation without representation to me, if my memory serves me correctly we fought one war about it." You understand of course, that since the Attorney General is authorized to render an official opinion only when so requested by the Governor or by one of the officials of the Executive Department of this State, anything which might 254 be said in response to your inquiry must be considered as merely an expression of my personal views upon the subject, and not binding upon anyone. The Act approved March 30, 1937 (Acts of 1937, pages 247-264) creating the Milk Control Board and providing license fees for stores, producers, producerdistributors and distributors in those milk sheds to which the Act is applicable, provides in Section 5 thereof: "Upon its organization, the Board shall designate natural marketing areas within the State, each of which shall constitute a milk shed, and the Board may, from time to time thereafter, designate additional milk sheds or combine two or more milk sheds in which this Act is effective. After the designation of any milk shed and upon petition to the Board therefor, the Board shall hold an election within such milk shed to determine whether or not the provisions of this Act shall be made applicable within such milk shed. Each producer, producer-distributor, and distributor having a municipal or county permit to sell milk within the milk shed shall be entitled to one vote only. If, in any such election, a majority of the votes cast shall be favorable thereto, the provisions of this Act shall thereupon apply within such milk shed and shall remain in force throughout the remaining life of this Act. The Board shall advertise each such election and make reasonable rules governing the conducting thereof. The decision of the Board as to the results of any such election shall be final, but the provisions of this Act shall not apply within any part of this State except within any milk shed wherein a favorable election has been held as provided in this section. " As you suggest, a "store" is not given a vote under the provisions of Section 5 of the Act in the election to be held for the purpose of determining whether the provisions of the Act shall apply to the particular milk shed in which the store is located. A "store" is defined in Section 2 as meaning: "Any wholesale or retail grocery store, hotel, restaurant, cafeteria, soda fountain, dairy products store, warehouse, manufacturing plant, or similar mercantile establishment which buys milk bottled or in cans and resells within any milk shed to which this Act is applicable such milk without re-bottling (except for immediate service for consumption by customers) , pasteurizing, or otherwise processing same. " The constitutionality of the Act of 1937 has been upheld in at least two recent cases decided by the State Supreme Court. (See Bohannon vs. Duncan, 185 Ga. 840, and Gibbs vs. Milk Control Board of Georgia, 185 Ga. 844) , but I find no case in which the validity of the Act has been questioned upon the specific grounds that you suggest. However, I seriously doubt if it would be held that the license provisions of the Act of 1937 constitute taxation without representation. As stated in the case of Gibbs vs. Milk Control Board of Georgia, supra: "It is apparent on its face that the Act is not one levying a tax, but is a health measure within the police power. . . . " Even, however, if the Act were held to be a tax raising measure and the license provisions of the Act were determined to constitute the imposition of a tax, it would probably be further held that adequate representation in the legislative body which passed the Act was sufficient. As stated in 61 C. J. at page 79, Section 8: "Taxation without representation, or without the consent in some form of those who are to be taxed, is vicious in principle and contrary to the fundamental principles of good government; but the principle of representation applies to political communities, as such, and not to individuals, 255 and is satisfied by their adequate representation in the legislative body which votes the tax. Hence, this principle does not prevent any State from taxing the property of persons who have not the right to vote, such as infants, married women and non-residents. " It is my personal view therefore, that the failure of the General Assembly to provide that "stores" should have a vote in the election to be held tor.the purpose of determining whether the provisions of the Act of 1937 should apply to a particular milk shed, does not constitute taxation without representation. FOOD AND DRUGS-Allocation of funds for enforcement of Milk Control Act. February 17, 1939 Mr. C. G. Duncan, Director Milk Control Board Acknowledging yours of the fourteenth instant, I beg to advise that Section 17 of the Milk Control Act does allocate and continuously appropriate 97% of all funds collected "for the enforcement of" said Act. Under this language, I do not think that it is necessary that the 1939 General Assembly make an appropriation in order to authorize the use of these funds by the Board for the enforcement of the Milk Control Act. FOOD AND DRUGS-Egg inspection stamps not required of hotels or restau- rants serving eggs as food. October 26, 1939 Honorable E. P. Long Chief Food Inspector Department of Agriculture I have your letter of October 18th, asking if hotels, cafes, and restaurants buying eggs from farmers or poultrymen and serving them to their guests, are subject to the inspection fee stamp of 2 on each 30 dozen eggs thus served. Section 4 of the Act approved March 8, 1937, supra, provides (at page 643) that "retail dealers" who buy bulk eggs from farmers or others on which in- spection fees have not been paid must keep a record of such eggs "sold at retail" to the consumer, make a report thereof to the Department of Agriculture at the end of each month, and include with the report sufficient inspection fee stamps at the rate of one two-cent inspection fee stamp for each 30 dozen eggs handled. . To say that hotels, cafes, or restaurants "are retail dealers" of eggs be- cause they serve eggs to their guests, or because eggs are contained in some of the food which they serve, is to place a tool iteral and unwarranted construc- tion on the section of the Act in question. The provision as to inspection fees applies to dealers in eggs as a commodity, not to hotels, cafes, or restaurants serving them as food or using them in food. FORESTRY AND GEOLOGY; NATURAL RESOURCES, DEPARTMENT OFPowers. April 10, 1939 Committee on Economy and Efficiency This will acknowledge receipt of your letter of April 4th in which you state that the Committee has before it for study the Department of Natural Resources and inquire as to the powers of the Commissioner as to the following: 256 A. Personnel as to employment, approval of employment, salary or approval of salary, dismissal in each of the divisions; taking each of the divisions separately. B. What are the powers of the head of the divisions without the consent of or approval of the Commissioner as to the personnel, employees, salary and dismissals? C. What are the powers of the Commi<>sioner as to the properties including lands, timber, all personal property included in the property, game and fish? D. What are the powers of each of the Directors of the divisions in regard to the properties, personal and real, falling in each division that do not have to be approved by the Commissioner? For the purpose of answering your inquiry, the questions submitted in paragraphs A and B of your letter may be grouped together. The Department of Natural Resources was created by an Act of the General Assembly approved March 5, 1937 (Acts of 1937, pages 264-280) . Section 1 of that Act creates a Department of Natural Resources and four subdivisions of said Department known as follows: 1. Division of Forestry. 2. Division of Wild Life. 3. Division of Mines, Mining and Geology. 4. Division of State Parks, Historic Sites and Monuments. Section 5 of said Act provides that the control and the management of the Department shall be vested in the Commissioner, to be known as the Commissioner of Natural Resources, with the Directors of the various divisions as hereinafter provided and set forth. Section 8 of said Act which defines the duties and powers of the Commissioner, provides in part as follows: "The Commissioner shall have control of the work of the Department and may make such rules and regulations as he may deem advisable to govern the work of the department and the duties of its employees." Section 11 of said Act provides as follows: "The Commissioner shall have power and authority to define and determine the rights, powers, privileges, jurisdiction, and scope of authority of each subdivision of the Department of Natural Resources, in conjunction with the Governor, a.nd he is hereby given the right and pow~r ~o summ,.rily adjudicate the distribution or division of said departmental powers, authority and jurisdiction, except as otherwise provided by this Act and other valid statutes of this State. " Section 10 of the Act provides that the Directors shall appoint, subject to the approval of the Commissioner, such experts and assistants as may be found necessary to enable them to carry out successfully the work of the divisions. The four subdivisions of the Department of Natural Resources are created by Section 9 of the aforesaid Act. Paragraph 1 of Section 9, which abolishes the Department of Forestry and Geological Development and the Commission of Forestry and Geological Development and creates the Division of Forestry of the Department of Natural Resources, vests all of the powers, duties and functions of the former Department of Forestry and Geological Development in the new Division of Forestry and provides that said Division shall be under the control and management of a Director and the Commissioner of Natural Resources. This paragraph further provides that the Director shall act as Executive and Administrative Head of the Division, shall carry out the policies of the Commissioner, and appoint such members of the technical and clerical staff as may be found necessary to enable him to carry out the work of the Division but fur- 257 ther provides that all of such appointments are subject to the approval of the Commissionet. Paragraph 2 of Section 9 abolishes the office of the Commissioner of Game and Fish and creates the Division of Wild Life, which Division is placed under the direction of a Director of Wild Life and all of the powers, duties and functions of the former Commissioner of Game and Fish are vested in the Director of the Division of Wild Life and the Commissioner of the Department of Natural Resources. Paragraph 3 of Section 9 creates the Division of Mines, Mining and Geology and provides that the functions, duties and powers of the Geological Division of the Department of Forestry and Geological Development are transferred to and vested in the Director of Mines, Mining and Geology and the Commissioner of Natural Resources. Said paragraph further provides that the Director may appoint, with the approval of the Commissioner, technical assistants who shall have the same educational qualifications as those required of the Director. Paragraph 4 of Section 9 creates a Division of State Parks, Historic Sites and Monuments. It provides that the Director of this Department shall be responsible to the Commissioner for the execution of his duties and policies and that . the Director with the approval of the Commissioner may employ such other qualified assistants and employees as may be deemed necessary to carry out the provisions of this Act. It will be noted that all of the provisions of the Act hereinabove quoted or referred to which vest the power of appointing assistants or clerical help in the Directors of the various divisions, require the approval of the Commissioner. It will be further noted that Section 10 which gives the Directors power to appoint such experts and assistants as may be found necessary to carry out successfully the work of the Divisions also makes this appointive power subject to the approval of the Commissioner. It is my conclusion, therefore, that the Director of each subdivision of the Department of Natural Resources has authority to appoint as assistants or employees of his particular subdivision only persons whom the Commissioner approves. I do not believe that the Director of any subdivision of the Department of Natural Resources would have authority to employ any person to assist him in carrying out the duties, powers or functions vested in him under this Act without the consent or approval of the Commissioner. It will be noted that there is no provision of the Act specifically dealing with the power to dismiss or remove assistants or employees and therefore the general rule would apply. It is a general rule of law that the power to remove is an incident to the power to appoint. See Wright v. Gamble, 136 Ga. 376. While this rule has been generally applied to the appointment of public officers, and the courts have in some instances distinguished between public officers and public employees for other purposes, it is my opinion that the rule that the power to appoint includes the power to remove would apply to public employees as well as public officers. Where his term is not fixed by law or contract, the appointee would hold at the pleasure of the appointing power. It is my opinion, therefore, that since a Director of any one of the subdivisions of the Department of Natural Resources does not have the authority to appoint or employ assistants without the approval of the Commissioner, he does not have the authority to discharge assistants or employees without the Commissioner's approval. One exception should be noted to the ruling of the last paragraph. It is a fundamental rule of construction that where general terms or expressions in one part of a statute are inconsistent with more specific terms or particular 258 provisions in another part, the particular provision must govern. Kiser and Company v. Doyal, 51 Ga. App. 30. Section 9 (2a) establishes in the Division of Wild Life a subdivision to be under the control of an Inspector of Coastal Fisheries who shall be appointed by the Director of Wild Life and the Commissioner of Natural Resources. The Inspector of Coastal Fisheries is authorized and required to take such action and to appoint such assistants as may be found necessary to the development and protection of fish, shell fish and crustaceans in the tidewaters of Georgia. The Act further provides that the Inspector of Coastal Fisheries shall hold his office so long as his services are satisfactory to the Director of Wild Life. Under these provisions, I do not believe that the Inspector of Coastal Fisheries would be required to secure the approval of the Commissioner to the appointment of such assistants as are necessary to perform the duties imposed upon such Inspector nor is the approval of the Commissioner necessary to the dismissal of the Inspector of Coastal Fisheries when his services are no longer satisfactory to the Director of Wild Life. However, it would be necessary for the Commissioner to approve the appointment by the Director of any person to fill a vacancy in the office of Inspector of Coastal Fisheries. With regard to the question of who has the power of fixing or approving the salaries of officers or employees which are not fixed by the terms of the Act, your attention is again called to Section 11 which gives the Commissioner the power and authority to define and determine the rights, powers, privileges, jurisdiction and scope of authority of each of the subdivisions of the Department of Natural Resources, in conjunction with the Governor. It will also be noted that Section 14 of the Act provides that: "All appropriations heretofore made for the use of said abolished departments and which may be made at this meeting of the General Assembly shall be, and they are hereby, transferred to the account for the use of the Department of Natural Resources, to be used by the Commissioner in handling the affairs of the Department of Natural Resources; Provided, that no appropriation made to any division of said department shall be used by any other division of said department, the intent of this Act being that such funds as the General Assembly might desire and direct to be used by one division, shall, in no event, be used by any other division of this department." The General Appropriations Act of 1937 (Acts of 1937, pages 42-72) which was passed at the same session of the Legislature as the Act creating the Department of Natural Resources and only a short time thereafter, and which, therefore, under certain well established principles of law, should be construed in pari materia with the Act creating the Department of Natural Resources, provides in Section 16 thereof for certain stated appropriations to each of the four subdivisions of the Department of Natural Resources. It further provides that from the appropriations made in such section the operating cost of the office of the Commissioner of Natural Resources shall be paid as may be equally assessed to each division by the Commissioner. Construing all of these provisions together, and in connection with other provisions of the Act which require the approval of the Commissioner for the expenditure of particular funds by the Directors, I conclude that the intent of the Legislature was to give the Commissioner of Natural Resources the general financial supervision over the entire Department, including each of the four subdivisions, and while his authority is limited in that no appropriation made to any division of the Department can be used by any other division of the 259 Department, still he would have the authority to approve or disapprove salaries of assistants or employees of each of the four divisions, which were not fixed by law, and I do not believe that the Director of any of the divisions could exercise his sole discretion in such matters without the Commissioner's approval. With reference to your questions as to the powers of the Commissioner and each of the Directors with reference to properties falling in each of the divisions, I believe that Section 11 of the Act hereinabove quoted is controlling. It will be noted that in addition to that section which vests broad powers in the Commissioner, in conjunction with the Governor, to define and determine the rights, powers, privileges, jurisdiction and scope of authority of each subdivision of the Department of Natural Resources, Section 8, which defines the duties and powers of the Commissioner, provides that he shall have charge of the work of forest maintenance, forest fire prevention, reforestation, and the protection of lands and water supplies by the preservation of forests. He shall also have the care of the State Forests and Parks and other recreational areas now used or to be acquired by the State. He shall also have charge of the game and fish of the State and the work of the mines, mining and geology. Section 9 (1) vests the control and management of the Division of Forestry under the Director and the Commissioner and requires the Director to carry out the policies of the Commissioner. Section 9 does not give the Director of the Division of Forestry any independent powers with reference to the property which are not subject to the approval of the Commissioner. All powers with reference to property vested in the Division of Wild Life, whether created under the Act of 1937, or transferred by that Act to said Division, by Section 9 (2) of the said Act, are vested in.the Director of the Division of Wild Life and the Commissioner of the Department of Natural Resources. Section 9 (3) which creates a Division of Mines, Mining and Geology and which transfers the functions, duties and powers of the Geological Division of the Department of Forestry to the Division of Mines, Mining and Geology, vests such powers in the Director of said Division and the Commissioner. Section 9 (4) of said Act, which creates the Division of State Parks, Historic Sites and Monuments, makes the Director of that Division responsible to the Commissioner for the execution of his duties and policies. Section 9 (4c) authorizes this Division to accept in its discretion, with concurrence of the Commissioner, in fee or otherwise, land entrusted, donated, or devised to the State by the United States Government, political subdivision of the State, or by any person, firm, association, or corporation to become a part of the State park system. Section 9 (4d) requires the approval of the Commissioner for expenditures from available funds for the care, supervision, improvement and development of the State park system. Section 9 (4b) authorizes the Division to acquire in the name of the State, by purchase, lease, agreement, or condemnation, such land within the State as it may deem necessary or proper to the extension of the State park system. It gives the Division the right of eminent domain but provides that no land or other property shall be taken or contracted to be taken unless or until the General Assembly has appropriated money therefor or funds have otherwise become available for said purpose. In connection with this paragraph the Appropriation Act of 1937 appropriated $50, 000. 00 for the operating cost of this Division but provided further that the Director of the Division was authorized to purchase the John B. Gordon home site at a cost not exceeding $6,500. 00; that he 260 was authorized to use $5, 000. 00 or so much thereof as may be necessary in paving the sidewalks and roads within the Confederate Cemetery at Marietta, and he was further authorized to purchase at a cost not exceeding $1, 500. 00 the Old Fort King George site adjoining the City of Darien and Mcintosh County. While it apparently was not the intention of the Legislature to require the approval of the Commissioner for the Director to purchase the .John B. Gordon home site and the Old Fort King George site, or to use the amount of money specified in paving the sidewalks and roads within the Confederate Cemetery at Marietta, I am of the opinion that it was the intention of the Legislature that the Director of each division of the Department of Natural Resources should in dealing with the property, real or personal, vested in his particular division, secure the approval of the Commissioner of Natural Resources and should not have au- thority to take any actions with reference to such property which would conflict with the rights, powers, privileges, jurisdiction, and scope of authority of that subdivision as defined by the Commissioner, in conjunction with the Governor, under Section 11 of the Act, with the exception noted at the beginning of this sentence. ' FORESTRY AND GEOLOGY; NATURAL RESOURCES, DEPARTMENT OFAppropriations and funds for operation. .June 2, 1939 Honorable Zach Arnold State Auditor This will acknowledge yours of May 24, 1939, calling my attention to certain provisions of the act creating the Department of Natural Resources (Georgia Laws 1937, pages 264, 280) and asking the following questions: 1. Are not the valid debts of the Departments abolished transferred to and placed under the jurisdiction of the Department of Natural Resources, the Commissioner of Natural Resources? 2. Would not the payment of past due operating cost be the same as payment of current operating cost in the meaning of the appropriation wording of "for operating cost"? 3. Would not the Commissioner of Natural Resources be authorized to use any surplus funds in the account of the office of Commissioner derived from assessment for operating cost of the Commissioners office to apply in payment of outstanding obligations which were transferred to the newly created Department of Natural Resources? Section 5 of the act above cited provides: "The control and management of the Department (of Natural Resources) shall be vested in the Commissioner, to be known as the Commissioner of Natural Resources, with the Directors of the various divisions, as hereinafter provided and set forth." (Parenthesis ours.) Section 13 of the act provides: "Upon the organization of the Department of Natural Resources and the appointment and qualification of the Commissioner and the Directors, all of the property of the State in the hands of said abolished Departments shall be transferred to this Department (of Natural Resources), and all valid contracts made in behalf of said abolished Departments and still outstanding and not executed, shall be binding upon this Department (of Natural Resources) and all the functions prescribed by law for the abolished 261 Departments shall be performed by this Department (of Natural Resources) . " (Parentheses ours.) (Emphasis supplied.) Section 14 provides: "All appropriations heretofore made for the use of said abolished Departments and which may be made at this meeting of the General Assembly shall be, and they are hereby, transferred to the account for the use of the Department of Natural Resources, to be used by the Commissioner in handling the affairs of the Department of Natural Resources; provided, that no appropriation made to any division of said Department shall be used by any other division of said Department, the intent of this section being that such funds as the General Assembly might desire and direct to be used by one division, shall, in no event, be used by any other division of this Department (of Natural Resources)." (Parenthesis ours.) (Emphasis supplied.) In a letter under date of April 10, 1939, addressed to the House Committee on Economy and Efficiency it was said: "I conclude that the intent of the Legislature was to give the Commissioner of Natural Resources the general financial supervision over the entire Department, including each of the four subdivisions, and while this authority is limited in that no appropriation made to any division of the Department can be used by any other division of the Department, still he would have the authority to approve or disapprove salaries of assistants or employees of each of the four divisions, which were not fixed by law. . . " In answer to question 1 I am, therefore, of the opinion that the valid debts of the departments and agencies abolished by the act are transferred to the Department of Natural Resources under Section 13. Section 13 makes all valid, unexecuted and outstanding contracts of the various abolished Departments binding upon the Department of Natural Resources, and the Commissioner of Natural Resources, having the general financial supervision of said department, is charged with the duty of seeing that these contracts are fully performed. In answer to question 2 I am of the opinion that payment of past due operating costs may be made from the funds derived from the operation of that proviso of Section 16 of the Appropriation Act for the two years ending June 30, 1939, which reads as follows: "Providing that from the appropriations made in this section (to the four divisions under the Department of Natural Resources) shall be paid the operating cost of the office of the Commissioner of Natural Resources as may be equitably assessed to each division by the Commissioner. " This is true for the reason that since it is the duty of the Commissioner of Nat- , ural Resources, as pointed out above, to discharge all valid contracts outstanding and not executed, entered into originally by the Departments abolished by the act first cited, the payment of any debts arising out of such contracts is properly classified as an operating cost. Answering question 3, I am of the opinion that the Commissioner of Natural Resources has the authority to apply any surplus funds derived from an assess- ment for operating costs in the manner provided in the Appropriation Act and under Section 14, standing to the account of the Department of Natural Resources, to the payment of outstanding obligations which were transferred to the Department of Natural Resources under Section 13 of the act creating said Department. 262 FORESTRY AND GEOLOGY; NATURAL RESOURCES, DEPARTMENT OFState cannot be a joint owner of property. May 10, 1939 Honorable D. J. Weddell . Acting Director, Division of Forestry This will acknowledge yours of recent date requesting an opinion as to the proper disposition of certain equipment, such as tractors, trucks, fire towers, etc., purchased.cooperatively by the State, using State and Federal funds, and funds from the Timber Protective Organizations of the various counties. You state that title to this equipment is in the State, although the State paid only some 35% or 40% of the purchase price thereof. The particular question you desire answered is whether, in changing one of the T. P. 0. 's over to a countywide system as authorized by a recent constitutional amendment, the State would have the authority to reimburse the county organization for its equity in the equipment up to 60%-65%, should the countywide organization be disbanded. Under the provisions of Code Section 43-206 as amended by the Act of 1937 Ga. L. 1937, p. 264) , the Director of the Division of Forestry has the power "to take action such.as may be reasonable and profitable to prevent and suppress forest fires, 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 for such purposes and to provide for such fire control as it may establish, either independently or in cooperation with the Federal government. " (Emphasis supplied.) The purchase .of equipment such as that referred to in your letter by the Director, as it was necessary for the purpose of prohibiting and suppressing forest fires and enforcing forest fire laws, was authorized under this statute. It was proper that title to said property, whether purchased entirely with State funds, or cooperatively with other agencies, should vest in the State. Article 7, Section 5, Paragraph 1 of the Constitution provides: "The credit of the State shall not be pledged or loaned to any individual company, corporation or association and the State shall not become a joint owner or stock holder in any company, association or corporation. " It is clear that if the complete title to the equipment had not vested in the State, this section of the Constitution would have been violated by its purchase, as the State would be, to all intents and purposes, a joint owner of the equipment with the T. P. 0. and the county. As a matter of law, I do not think that the State is legally obligated to recognize any equity-if any could exist-either of the T. P. 0. or of the county. So it occurs to me that the only way in which the matter referred to in your letter can be properly handled would be for the State, upon the disbanding of the county organization, to have the State Supervisor of Purchases, acting under the authority of Section 2 E of the Act approved March 29, 1937, to sell the equipment back to the county organization if it has become "surplus, obsolete, or unused," allowing the county organization to buy in the property for the amount which the State has invested therein. I do not think that the State has any authority whatsoever to reimburse the county organization or the T. P. 0. for any funds which either may have invested in the equipment referred to in your letter. FORESTRY AND GEOLOGY; NATURAL RESOURCES, DEPARTMENT OFAuthorized to participate in benefits of federal act to restore wild life. July 31, 1939 Hon. Charles N. Elliott, Director Division of Wild Life I have your letter of July 20, in which you ask if Section 2 (c), page 272, of the Act creating the Department of Natural Resources (Georgia Laws 1937, pages 264-280) applies to funds obtained from the Federal Government under the Pittman-Robertson Act of 1937, which is the Federal Act pertaining to the wild life restoration program (16 U.S. C. A. 669-669 (j) ) . Section 2 (c) of the Act creating the Department of Natural Resources (page 272 of Georgia Laws 1937) provides that all funds and fees received from licenses of all kinds are allocated and appropriati!d to the Department of Natural Resources and its subdivision, the Division of Wild Life. It is further provided that all said funds shall be expended for the sole and exclusive purpose of the protection and propagation of the wild life of this State, including fish, and said license fees and receipts cannot be used for any other purpose. Section 4 (2f) , page 266 of the 1937 Act, supra, provides that one of the objectives of the Department of Natural Resources shall be to establish and maintain perfect cooperation between the Department and all of its subdivisions with any and every agency of the Federal Government interested in or dealing with the subject matter of such Department or subdivision. Section 12 (page 279) of the 1937 Act, supra, provides that the Commissioner of the Department of Natural Resources is authorized to arrange for and accept such aid and cooperation from the several United States governmental bureaus and departments and other sources as may assist in carrying out the objectives of the Department of Natural Resources. The Commissioner is directed to cooperate and coordinate the work of the Department of Natural Resources with each department of the Federal Government dealing with the subject matters dealt with by the Department of Natural Resources. It is my clear opinion that the Act of 1937, supra, creating the Department of Natural Resources, affords ample authority, in so far as the Georgia law is concerned, for the Department to participate in the benefits of the PittmanRobertson Act of 1937. FUGITIVES FROM JUSTICE-Sheriff's compensation for returning criminals to this State. 1 April 28, 1939 Hon. P. L. Youmans Sheriff, Emanuel County Swainsboro, Georgia I am pleased to acknowledge receipt of your letter of April22, 1939, inquiring as to sheriff's compensation for going out of the State for the purpose of re- turning criminals who have escaped from this State. The only provision seems to be Code Section 44-201 of the Code of 1933, which is as follows: "Before any expenses shall be incurred by any officer or duly authorized agent of the State for bringing back to the county where the crime was com- mitted any fugitive from the justice of this State, who may be beyond the limits of the State, so as to become a charge upon any county where the crime was committed, the incurring of any such expense and the amount 264 thereof shall be first authorized by the ordinary, commissioners or other officers in charge of the fiscal affairs of the county. " It seems from the reading of this section just quoted that the commissioners would be within their rights in refusing to pay the expenses of returning criminals where they did not authorize the expense before it was incurred. So the proper practice would be to first get the commissioners to authorize the incurring of the expense and at the same time fix the amount to be expended in any particular instance. GAME AND FISH-State funds cannot be used for federal fish hatcheries. May 17, 1939 Ron. E. D. Rivers, Governor This will acknowledge receipt of your letter of May 13th in which you request a ruling as to whether or not the counties of Rabun, Habersham and Stephens could, under the law, be paid a sum of money by executive order, or by any other method, which might be deemed advisable to be used for the purpose of assisting to construct a fish hatchery. It appears from the letter of Hon. Thad L. Bynum, which is attached to your letter of May 13th, that the three named counties have purchased land and water rights for the purpose of constructing a fish hatchery, which hatchery is to be operated by the officials of the Federal Government after it is constructed. These counties are requesting at least $5, 000. 00 from the revenue which goes into the Wild Life Department to be applied towards purchasing materials to be used in the construction of the hatchery and towards transportation of WPA workers who are to do the work of construction. The Act of 1937 creating the Department of Natural Resources and the Division of Wild Life as a subdivision of said Department abolishes the office of Commissioner of Game and Fish, and provides that all of the powers, duties, and functions of the said Commissioner of Game and Fish are vested in the Director of the Division of Wild Life and the Commissioner of the Department of Natural Resources. (Acts of 1937, pages 264-280, Section 9 (2).) Section 45-106, which defines the general powers and duties of the Commissioner of Game and Fish, provides in part as follows: "He is authorized . . . to establish hatcheries for the purpose of propagating fish to be distributed in the various streams of this State, and to adopt rules and regulations concerning the operation and management of such game preserves and fish hatcheries; ... and provided, that all moneys used for the purpose of carrying out any of the powers vested by this section shall be drawn from the moneys actually on hand to the credit of the game protection fund and shall in no event be a charge upon the general treasury of the State. " In the case of Cannon v. Montgomery, 184 Ga. 588, it was held that the Commissioner of Game and Fish of the State is authorized to establish and maintain a fish hatchery, and the possession of property acquired by him under lease for that purpose is a possession of the State. The Act of 1935 regulating fishing in the waters of this State by non-residents provides in part as follows: "That all funds received from the sale of such licenses, less the compensation allowed to the agents selling the same, shall be set apart in a special fund and shall be used exclusively for the operation of the present 265 fish hatcheries now operated by the Commissioner of Game and Fish and for the establishment and operation of other hatcheries and for the distribution of fish from such hatcheries to restock the waters of this State, and to police the streams and waters of this State and for the enforcement of the laws regulating fishing." (Acts of 1935, page 379.) Section 45-121 of the Code of 1933 provides that all moneys collected or derived from hunting licenses, fines for violating hunting laws and other receipts derived from the enforcement of the Jaws pertaining to game and fresh water fishing shall be kpet in a fund to be known as the game and fish protection fund. Section 45-122 of the Code of 1933 as amended by an Act of 1935 (Acts of 1935, pages 386-390) provides that the State Game and Fish Commissioner, in his discretion, is authorized to use not exceeding fifty per cent of all moneys collected or derived from hunting licenses and/or fines for violating hunting laws, for the operation and maintenance of fish hatcheries and propagation of fish in Georgia. The Act of 1937 providing for the payment of a license by certain persons fishing within the State provides that all the money derived from the sale of licenses under the terms of this Act be set aside in a fund for the operation of the present hatcheries, the establishment of other hatcheries, the distribution of fish from such hatcheries to the waters of this State, the policing of the streams and waters of this State and the protection of the fish therein. (Acts of 1937, pages 675-677.) Section 45-504 of the Code of 1933 provides that all moneys arising from the sale of the fishing licenses prescribed by Code Sections 45-501 to 45-505 shall be kept in a special fund to be known as the fish propagation and protection fund, and shall be used only for the establishment and operation of fish hatcheries, for otherwise propagating fish for restocking the waters of this State, and for the enforcement of the fresh water fishing laws of the State. From a consideration of the above cited Code Sections and Acts, it seems clear that the legislative intent was that fish hatcheries established under the provisions of Section 45-106 of the Code of 1933 were to be under the management and control of the State and that fish from those hatcheries were to be distributed in the waters of the State under the directions of the Commissioner of the Department of Natural Resources and the Director of the Division of Wild Life. I do not believe that the General Assembly intended to vest in the Commissioner of the Department of Natural Resources or any other officer of the State the authority to apply any part of the fund set aside for the purpose of establishing, maintaining and controlling hatcheries to aid in the construction of fish hatcheries in which the State does not have a direct interest and over which the State has no control. As stated in Mr. Bynum's letter, the title to the land and water rights is already vested in the three counties and the hatchery will be operated by the officials of the Federal Government after it is constructed. It is apparent, therefore, that even if part of the revenue which might properly be used for the construction, operation and maintenance of fish hatcheries were applied to the construction of this hatchery, neither the State nor any official thereof would have any control over the operation of the hatchery or the distribution of the fish therefrom. While I am fully aware of the provisions of the Act of 1937 creating the Department of Natural Resources which direct the Commissioner of that Department to cooperate and coordinate the work of the Department of Natural Resources with each Department of the Federal Government dealing with the 266 subject-matters dealt with in said Department and also Section 9 (2) (c) of said Act which authorizes and requires the Commissioner of Natural Resources, the Director of Wild Life and the Inspector of Coastal Fisheries to cooperate fully with the Bureau of Fisheries of the Federal Government, and with any other Federal agency interested in the preservation and propagation of fish, shell fish and wild life in the promulgation of the fishing industry in this State, I do not believe that these provisions would authorize the State to pay a part of the cost of constructing a fish hatchery to be operated by the Federal Government where the State is not given any control or management of the same or any right in directing the distribution of fish from said hatchery. GAME AND FISH-Powers of inspectors and patrolmen. May 18, 1940 Hon. J. D. Mitchell, Director Coastal Area Division of Wild Life Brunswick, Georgia This will acknowledge receipt of your letter of May 8th in which you state: "Recently we have run into a few matters that necessitate requesting your opinion, in order that our protectors and patrolmen may not overstep the bounds of their authority in the enforcement of game and fish laws. "I would like to know if our protectors have authority, without a search warrant, to board a fishing boat or vessel in the waters of this State for the purpose of ascertaining if there has been a violation of the game or fish laws. "Under our laws, are we authorized to request a person to produce his hunting or fishing license for inspection, in order to ascertain if he is properly licensed to hunt or fish, and do we have authority to check his game to determine if it has been taken out of season or if the bag limits have been exceeded? "If our protectors should find possession of game out of season or that the bag limit has been exceeded, but they did not actually see the game taken, would they be authorized to make an arrest or have warrant issued?" The general powers and duties of the State game protectors are set out in Sections 45-115 and 45-126 of the Georgia Code of 1933. Section 45-115 provides, in part: "The State game wardens, the tidewater inspectors and the tidewater patrolmen shall be vested with all the powers and authority formerly vested by law in the game and fish wardens, and also in the sheriffs and constables, for the protection of game and shellfish and the forests. " Section 45-126 provides as follows: "It shall be the duty of the State game wardens and deputy wardens to enforce all the laws of this State in reference to game and fish, and to perform such other duties as may be required of them by the Commissioner of Game and Fish, except as to the sale of hunting and fishing licenses and other licenses sold by the Game and Fish Department. All such State game wardens shall give bond in the sum of $1, 000 in some solvent surety company, payable to the Commissioner of Game and Fish, and conditioned upon the faithful performance of their duties, the premiums on such bonds to be paid by said wardens. " By an Act approved March 28, 1935 (Acts of 1935, pages 386 to 390) it was provided that all wardens and deputy wardens shall be known and designated as State 267 game protectors and deputy State game protectors. By an Act approved March 5, 1937 (Acts of 1937, pages 264 to 280) the office of Commissioner of Game and Fish was abolished and all of the powers, duties and functions of the Commissioner of Game and Fish were vested in the Director of the Division of Wild Life and the Commissioner of the Department of Natural Resources, which offices were created by that Act. In reply to your inquiry as to whether the protectors have the authority, without a search warrant, to board a fishing boat or vessel in the waters of this State for the purpose of ascertaining if there has been a violation of the game or fish laws, I find no Act of the General Assembly specifically giving the State game protectors or deputy State game protectors that power. A similar question was dealt with by my distinguished predecessor in office, the late Hon. M . .T. Yeomans, in an opinion rendered to Hon. Zack D. Cravey, then Commissioner of Game and Fish, on November 19, 1934. .Judge Yeomans said: "This will acknowledge receipt of letter signed by your secretary, Mr. Geppert, under date of November 15th requesting an opinion as to the legality of a game warden searching automobiles to determine the presence of game for sale or illegally killed. "It is my opinion that such searches would be illegal unless the warden has a search warrant issued under the provisions of Penal Code Section 903. (Sec. 27-102, Code of 1933) . "Paragraph 16, Section 1, Article 1 of our Constitution provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unlawful searches and seizures, shall not be violated, and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place or places to be searched, and the persons or things to be seized. ' "I feel that no search would be legal without first obtaining a warrant in compliance with this provision of the Constitution." Your attention, however, is directed to Section 45-215 of the Georgia Code of 1933 which provides, in part: "Every boat engaged in commercial fishing in tidewater Georgia, shall be required to maintain and carry thereon at all times a record book to be prescribed by the Commissioner of Game and Fish, showing the amount of fish, oysters, prawn and other sea food caught daily, to whom sold, the date of sale and delivery, and such other information as may be required by the Commissioner. Such record shall be open at any and all times to the duly authorized officers and deputies of the Department of Game and Fish. " You also inquire if your protectors are authorized to request a person to produce his hunting or fishing license for inspection, in order to ascertain if he is properly licensed to hunt or fish. With reference to hunting licenses, your attention is called to Section 45-204 of the Code, which provides: "Each person hunting shall carry with him his license and exhibit the same promptly upon the request of any game warden or deputy game warden.'' Section 6 of the Act approved March 28, 1935 (Acts of 1935, pages 386 to 390) provides: "Be it further enacted by the authority aforesaid, that it shall be the duty of any person purchasing any license in the form of a button or tag from the Commissioner of Game and Fish for hunting to wear the same in 268 a conspicuous place on his coat or person so that the same may be easily observable to view." With reference to the licenses of commercial boats, your attention is called to Section 45-212 of the Code which provides, in part: "Every boat engaged in commercial fishing in tidewater Georgia, required by law to obtain a license, shall have securely fixed on each side of the bow thereof, and conspicuously displayed in order that it may be read from a reasonable distance, a metal license tag of such style and size as may be prescribed by the Commissioner of Game and Fish. " I have not dealt with the fishing licenses required of certain persons by the Act approved March 30, 1937 (Acts of 1937, pages 675 to 677) , since Section 6 of that Act provides: "That nothing in this Act shall apply to tidewater Georgia." Tidewater Georgia is defined by Section 45-116 as the counties of Chatham, Bryan, Liberty, Mcintosh, Glynn and Camden, which counties form the Coastal Area designated in the departmental order of .July 1, 1939, appointing you as "expert and assistant in carrying out the work of the Division of Wild Life. " You further inquire if your protectors have the authority to check game to determine if it has been taken out of season or if the bag limit has been exceeded. This question was dealt with in an opinion rendered by .Judge Yeomans to the Commissioner of Game and Fish on October 21, 1935. .Judge Yeomans said: "Making 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. Neither 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 with 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 wardens should be most cautious, keeping ever in mind the constitutional guaranties of freedom from unreasonable searches and seizures. " You also inquire if your protectors should find possession of game out of season or that the bag limit has been exceeded, but they did not actually see the game taken, would they be authorized to make an arrest or have a warrant issued? In this connection, your attention is called to an opinion rendered by Hon. M. .T. Yeomans to the Commissioner of Game and Fish on October 26, 1933, in which .Judge Yeomans said: "Yours of the 24th instant has been received. "You desire an opinion upon whether a State Game Warden or a deputy State Game Warden, acting under the authority of the Act of 1931 as contained in Georgia Laws, 1931, page 174, has the power and authority to make a physical arrest of any person or persons violating any of the provisions of the Game and Fish Laws of this State. "In your letter you show that you are familiar with Section 25 of the Act approved August 8, 1924, as contained in Georgia Laws, 1924, page 112, and 269 also with the provisions of the laws of 1931, page 174. It is my opinion, based upon these provisions of our law, that a State Game Warden or a Deputy Game Warden may make a physical arrest of any person or persons violating any of the provisions of the Game and Fish laws of this State. However, unless such officer actually saw the crime committed or the same was done within his presence, then it would be necessary for him to have a warrant in order to make a legal arrest. "Section 917 of the Penal Code (Section 27-207, Code of 1933) of our State provides as follows: " 'An arrest may be made for a crime by an officer, either on a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an office to issue warrant. ' "Thus, you can see from this section what the necessary qualifications or restrictions are for an arrest without a warrant. " Of course in those instances where the possession of game out of season or the possession of more than a specified amount of game during the season is made a misdemeanor, and the protector sees a person in possession of game which violates the law, the offense would be committed in the presence of the officer. The two opinions of .Judge Yeomans quoted last above should answer this question for you. GAME AND FISH-Fines arising from violation of game and fish laws. September 24, 1940 Honorable Charles N. Elliott Director, Division of Wildlife This will acknowledge receipt of your letter of September 20 in which you state: "The question of disposition of fines arising from convictions on our Game Law violations is badly in need of an opinion. "Some of the court officials are insisting that where the fines are not enough to cover the court costs this department is not due any part of the fine. Basing our contention on Section 45-127, we are asking for one-half of the fines regardless of the amount. " On .Tune 8, 1936, my distinguished predecessor in office, the late Honorable M. .T. Yeomans, in response to a request from Honorable Zack D. Cravey, then Commissioner of Game and Fish, rendered the following opinion dealing with the matter about which you inquire: "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, 270 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 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." GAME AND FISH-Fines arising from violation of game and fish laws, how divided. July 24, 1939 Hon. Charles N. Elliott, Director, Division of Wild Life I have your letter of the 15th of July requesting an opinion as to the proper division of fines assessed for violations of the game and fish laws. Section 45-127 of the officiall933 Code, based upon the Acts of 1931, pages 173-175, provides that one-half of all money arising from fines for violations of the game and fish laws shall be remitted, by the Clerk of the trial court, to the "Commissioner of Game and Fish", for credit to the game and fish protection fund. "The other one-half shall be paid by said Clerk into the County Treasury." The above cited Code Section then provides that the Clerk shall promptly disburse such fines as above set out and make a written report to the Game and Fish Commissioner, for which report he shall be entitled to an additional fee of $1. 00 in each case, to be added to the cost allowed by law against the defendant, to be retained by said Clerk as his special compensation for making such report. The provisions of the above quoted Section of the official 1933 Code, in so far as they pertain to the distribution of fines arising from violations of any fish law are still in full force and effect. A statute similar to the above cited portions of Section 45-127 of the official Code of 1933 was approved on March 28, 1935 (Georgia Laws 1935, pages 386-390) , Section 11 of which (page 389) provides as follows: "Section 11. Be it further enacted by the authority aforesaid, that the proceeds from all fines and forfeitures arising from the violation of any game or fish law shall be divided equally between the proper officers of the trial court and the Department of Game and Fish. " Section 11 of the 1935 Act, supra, in so far as it deals with fines for violating any fish law, contravenes Article 3, Section 7, Paragraph 8 (Section 2-1808 of the 1933 Code) of the State Constitution because the caption of the 1935 Act is not broad enough to include fines arising from violation of any fish law. Section 11 of the 1935 Act is valid, however, as to fines arising from violations of any game law. Section 11 of the 1935 Act, supra, in so far as it deals with fines for violation of any fish law, is unconstitutional for the reason aforesaid, and it does not supersede nor affect in any way the above quoted Section 45-127 of the official 1933 Code which provides that one-half of all money arising from fines for violations of any fish law shall be remitted to the Commissioner of Game and Fish. 271 Barker v. State, 118 Ga. 35; Georgia Empire Mutual Insurance Company v. Wright, 118 Ga. 796; 66 A. L. R. 1483. In view of the foregoing authorities, it is my opinion that fines arising from violations of any fish law should be distributed in accordance with Section 45-127 of the official1933 Code, that is, that one-half of all money collected from fines for violations of fish laws should be remitted to the Director of the Division of Wild Life and the other one-half paid over to the County Treasury. Fines arising from violation of any game law, (as distingUished from fish law) should be distributed in accordance with Section 11 of the Act of 1935, supra, which provides that the proceeds from fines and forfeitures shall be divided equally between the proper officers of the trial court and the Department of Game and Fish. In defining the term "proceeds" as used in Section 11 of the 1935 Act, supra, with reference to fines and forfeitures arising from the violation of any game law, (as distinguished from any fish law) an opinion from the Attorney General dated June 8, 1936, addressed to the Honorable Zack D. Cravey, Commissioner of Game and Fish, rules that the wo:rd "proceeds" means "Net proceeds" after all cou:r:t costs have been paid. GAME AND FISH-"Hunting" defined. March 29, 1940 Hon. Charles N. Elliott Director, Division of Wild Life , I am pleased to acknowledge receipt of your inqUiry of recent date, desiring to know what constitutes "hunting" in Georgia. Section 45-201 of the Georgia Code of 1933 provides that a license shall be required "to hunt". Statutes also provide for open and closed seasons for game. In the case of Robinson v. State, 11 Ga. App. 847, 848, the Court of Appeals said: "In construing the statute under consideration, as in the interpreta- tion of all statutes, the legislative intent should govern; and it was clearly intended by the legislature, by the act in question, to protect the game designated by the act, not only from destruction, but from all molestation that might prevent the propagation or increase of the game during the closed season. The hunting of such game during the closed season, without reference to the character of such hunting or the period of time in which it should be carried on, would be to contravene this manifest purpose of the legislature, and would therefore be a violation of the statute. To hold that shooting, or shooting at, game was not hunting game, within the pur- view of the statute, would open wide the door for easy evasion of the terms of the statute, and we prefer to give to the terms of the statute such con- struction as will not only uphold it, but will aid in the accomplishment of its manifest purpose. " In the decision just quoted, the game law of 1911 (Acts 1911, p. 137) was under review. The courts of other states have also undertaken to define "hunting" and "to hunt", and the decision of our own Court of Appeals is in line with the de- cisions of the courts of other states. In the case of State v. Mohler 44 Ohio, p. 52, the court said: 272 "Where owners train dogs by permitting them to pursue wild animals which others intend to hunt, such hunter 'is hunting and pursuing game' in violation of statute. " However, administrative officials frequently have occasion to use their own reasonable judgment in the construction and application of provisions of statutory law. My young son, Alvan, age two, has a little black Toy-terrier puppy, not over six inches long. Occasionally the puppy chases birds out of the shrubbery, and my little boy, watching, is amused by the antics of the puppy and the sudden flight of the birds. Under provisions of law as hereinbefore cited, would it be suggested that you would endeavor to require of my two-year-old son a hunting license? Some while ago I had that fine and memorable privilege of going along on a fox hunt. It was great sport to hear the baying hounds giving chase to Br'er Reynard. Technically, we were "hunting"; but reqUire a hunting license of us for merely reveling in the music of the baying dogs? Let us hope not. And so, I trust that you will not be too harsh on us "technical" hunters, but instead, let those "real" hunters who "shoot to kill" pay the tariff. GAME AND FISH-Hunting with dogs, but without a gun, is hunting. March 19, 1940 Honorable Charles N. Elliott, Director Division of Wild Life I am pleased to acknowledge receipt of your inqUiry of recent date, desiring to know what constitutes hunting in Georgia. Particularly, where the person goes into the field with a gun and dog, although the cartridges are blank. Section 45-201 of the Code of 1933 provides that a license shall be required "to hunt" the law also provides for open and closed season for game as you already know. So it resolves into what constitutes hunting. In the case of Robinson vs. State 11 Ga. App. 847, defines hunting on page 848 of that decision as follows: "In construing the statute under consideration, as in the interpretation of all statutes, the legislative intent should govern; and it was clearly intended by the legislature, by the act in question, to protect the game designated by the act, not only from destruction, but from all molestation that might prevent the propagation or increase of the game during the closed season. The hunting of such game during the closed season, without reference to the character of such hunting or the period of time in which it should be carried on, would be to contravene this manifest purpose of the legislature, and would therefore be a violation of the statute. To hold that shooting, or shooting at, game was not hunting game, within the purview of the statute would open wide the door for easy evasion of the terms of the statute, and we prefer to give to the terms of the statute such construction as will not only uphold it, but will aid in the accomplishment of its manifest purpose. " (Emphasis supplied. ) The provision of just quoted, the game law of 1911 (Acts 1911, p. 137) was under review. But under the wording of the present statute I hold that the expression to hunt would not be construed any differently from that above defined. This seems to be the only time that our own courts have defined hunting. 273 However, the courts of the other states have defined "hunting" and "to hunt" in the same light in which our courts have construed it. And in the case of State vs. Mohler 44 Ohio 52, that court said: "Where owners train dogs by permitting them to pursue wild animals which others intend to hunt, such hunter 'is hunting' and pursuing game in violation of statute. " So in view of the foregoing it necessarily follows that a person who goes into the field with a gun and dog for the purpose of training the dog, would be violating the law if he did so without a license to hunt. And even if he has a license he would not be under such circumstances, permitted to do so during closed season. GAME AND FISH-Power of judge to probate or suspend sentence for violation of game and fish laws. November 25, 1940 Ron. W. W. Armistead Judge, City Court of Lexington Crawford, Georgia I have your letter of November 23rd asking my unofficial opinion about the imposition of fines and sentences under Section 45-205 of the 1933 Code, relating to the punishment imposed on persons for failure to procure and carry hunting licenses. You ask if the punishment prescribed by this Code section is invalid because definite minimum and maximum penalties are fixed. You also ask if, in view of the fixed minimum and maximum penalties, sentences under this Code section can be suspended. It is my unofficial and personal opinion that the minimum and maximum penalty provisions in question do not invalidate the Code section, because the general provision as to the punishment for misdemeanors applies only in cases where no other provisions of law have been made. Code Section 27-2506 begins as follows: "Except where otherwise provided, every crime declared to be a misdemeanor shall be punishable by a fine not to exceed $1, 000. 00, . . . " Code Section 45-205 is, therefore, entirely consistent with the provisions of Code Section 25-2706. With reference to your second question, it occurs to me that there is no power in a Judge to "suspend" a sentence. I think the "suspension" of a misdemeanor sentence amounts merely to placing the defendant on probation, as provided by Code Section 27-2706. Probation of a sentence could, of course, only apply to that part of the sentence relating to imprisonment or to labor on the public works, etc., and not to fines or costs of court. Granting that a Judge has the right to place a defendant on probation for violation of the hunting laws in question, which I think he unquestionably has, the fact that Code section 45-205 prescribes minimum and maximum penalties should not deprive him of that power. I think that the proper interpretation is merely to limit the penalties that can be imposed rather than to deprive the Judge of his power to place the defendant on probation. 274 GAME AND FISH-Boat license required for commercial fishing. December 5, 1939 Ron. S. J. Dickerson Bloomingdale, Georgia I am pleased to acknowledge receipt of your letter of December 2, 1939, inquiring about any change in the shad fishing laws and your bateau license. An Act passed in 1919 and codified as Section 45-209 of the Code of 1933 provides as follows: "No boat shall engage in commercial fishing in this state without being provided with a license; and no individual fisherman shall be taken upon such boat unless such fisherman shall be duly licensed. " This same Act provides for a license fee of $5. 00 on all bateaux, and all other boats require a higher license tax. This provision was codified as Section 45-210 of the Code of 1933. In Georgia Laws, 1937-1938 Extra Session, page 255, Section 45-210 of the Code of 1933 was amended by providing an additional tax of $25. 00 on all aliens and non-residents. In 1939 (Georgia Laws, 1939, page 185) Section 45-210 of the Code of 1933, as amended by the 1937-38 Act, was repealed and a new section enacted which provides for changed license fees, but the requirement as to licensing boats was not changed. You will notice, upon consideration of the above stated provisions of law, that the licensing of boats applies to commercial fishing, whether the boats are used in tide water or on the streams removed from the tide waters. Your letter did not reveal whether you were engaged in commercial fishing or not. But it seems to me that a fair construction of the law would lead to the conclusion that any person using a bateau for commercial fishing purposes would be required to have a license for such boat, regardless of what waters the boat was used on for commercial fishing. As to there being any change in the law in reference to shad fishing, I beg to advise you that I am not aware of any change since the Act of 1918 to which you refer. The license fees required for shad fishing under that Act seem to be still in force and effect in this State. It is a pleasure to give you this information, but, as you know, it is not an official ruling on any of the questions involved. The information is given you purely as a personal service to you. GAME AND FISH-Purse boats taxable if engaged in fishing. August 9, 1939 Hon. J. D. Mitchell Director, Coastal Area Division of Wild Life Brunswick, Georgia I am pleased to acknowledge receipt of your inquiry of August 5, 1939, as to whether or not the purse boats operated from a larger ship engaged in fishing are subject to the tax under the law. At the 1939 session of the General Assembly an Act was passed which reads in part as follows: "Boats under 16 feet long and under four (4) feet beam, One ($1. 00) Dollar and five (05) cents; boats over sixteen (16) feet long and over four 275 (4) feet beam, Twenty {20) cents for each additional foot or fraction thereof of length and beam. "Additional License Tax required on all boats, vessels and schooners or launches owned in whole or in part by aliens or non-residents: An additional license tax of Twenty-five ($25. 00) Dollars shall be required of all aliens or non-residents of the State of Georgia on all boats, vessels, .schooners or launches engaged in fishing or having to do with fishing in this State, owned in whole or in part by such aliens or non-residents, in addition to the boat license tax required in this Act." (Georgia Laws 1939, page 186.) I am of the opinion that the law just quoted is broad enough in its terms to include any type of boat, however small or however large, which is used in connection with fishing in this State. The criterion in determining whether or not the tax should be collected is whether or not the craft, however large or however small, has to do with fishing in this State. If the craft is used in connection with fishing in this State, in my opinion it would be subject to the tax levied by the provisions of the law above quoted. GAME AND FISH-Non-residents cannot be licensed for commercial fishing in tide waters of Georgia. August 18, 1939 Hon. J. D. Mitchell Director of the Coastal Area of the Tidewater Department Brunswick, Georgia I am pleased to acknowledge your inquiry of August 11, 1939, in refere'nce to the amount of tax to be collected from non-residents of Georgia. The Code Sections referred to by you do not altogether affect each other. Section 45-213 of the Code of 1933 provides for a tax of $2. 00 for an annual license to those engaged in commercial fishing. This license applies only to residents of Georgia. This Section specifically states that no license shall be issued to any person not a citizen of this State. Therefore, the Director of Wild Life is without authority to issue a license for the taking or catching of fish for commercial purposes to anyone except a resident of this State. Section 45-216 of the Code of 1933 is not primarily designed as a license tax provision of the Jaw. Primarily it is intended to prohibit all persons not citizens of this State from engaging in the taking or catching of shrimp or prawn from the salt waters of this State. This provision of the law, as you will note, only applies to shrimp or prawn. It has no reference to any other kind of fish. However, this section provides for one exception and that is that a Georgia concern owning and operating a packing or canning plant, duly licensed by this State, and having its own fleet of boats, may employ alien fishermen in the event he cannot secure competent fishermen to operate all or a part of his fleet. Of course it follows that if competent resident fishermen can be obtained, he would be without authority to employ alien fishermen. In the event he does employ alien fishermen, he must pay $10. 00 for each alien fisherman he thus employs. This $10. 00 license is in addition to any license required of such boat. (Emphasis supplied. ) The word "alien" as used in this section, insofar as it applies to the payment of a $10. 00 license fee, should be construed to apply to non-residents as well as aliens, for the reason that under the law no person not a resident of Georgia is authorized to take or catch fish, shrimp or prawn from the waters of Georgia for commercial purposes. 276 It might be contended that these statutes which exclude non-residents of Georgia from taking or catching fish, shrimp or prawn from the salt waters of the State would be violative of the Federal Constitution. But in the case of McCready v. Virginia, 94 U. S. 391 (24 L. ed. 248), it was held: "1. Subject to the paramount right of navigation, the regulation of which in relation to foreign and interstate commerce has been granted to the United States, each state owns the beds of all tidewaters within its jurisdiction and may appropriate them to be used by its citizens as a common for taking and cultivating fish if navigation be not thereby obstructed. "2. The right which the citizens of the State thus acquire is a property right and not a mere privilege or immunity of citizenship. "3. The second section of the Fourth Article of the Constitution which declares that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states' does not vest the citizens of one state with any interest in the common property of the citizens of another state. "4. A law of Virginia by which only such persons as are not citizens of that state are prohibited from planting oysters in the soil covered by her tidewaters is neither a regulation of commerce nor a violation of any privilege or immunity of interstate citizenship." (Emphasis supplied.) This decision of the U. S. Supreme Court just stated was cited approvingly by the Georgia Supreme Court in the case of Silver v. The State, 147 Ga. 162. Therefore, it follows that no person who is not a resident of the State of Georgia has a right to take or catch fish in the tidewaters of Georgia, and there is no authority for licensing anyone to do so from a commercial standpoint, except in the one instance set forth in Section 45-216 of the Code of 1933. GAME and FISH-Private ponds, what constitutes. March 20, 1940 Honorable Carl A. Blount Waynesboro, Georgia I am pleased to acknowledge receipt of your inquiry of recent date as to what constitutes a private fish pond, where fishing can be done during the closed season. Section 45-247 of the Code of 1933 annotated reads as follows: "The owners of private ponds shall have the right to take fish therefrom without procuring any license and may take them in any manner whatever; a private pond is defined to be any pond, privately owned, on any stream of this State which goes dry of water during any season of the year." (Emphasis supplied. ) This is what constitutes a private pond as defined by the law. Consequently, any pond which does not measure up to this definition would not constitute a private pond and it would be unlawful to fish therein during the closed season, either with or without a license. 277 GAME AND FISH-Private ponds defined. April 6, 1940 Hon. Charles N. Elliott Director Division of Wild Life I am pleased to acknowledge yours of recent date, in which you state that there is a great deal of confusion as to the definition of a private pohd and the limits of a private pond, and request my opinion upon the following situation: "We have several persons who own ponds on a stream. These ponds are a result of having a stream dammed up. The owners are of the opinion that they may place a trap on the outside of the dam for catching fish. They contend that all of the stream goes dry during the year. Ordinarily this stream would not go dry but the owners of the ponds close the gates that let water flow from the pond and cause the stream to go dry. It is our contention that they may not place a trap on the outside of the dam for the limit or boundary of the pond is the dam and any waters outside of the pond are not private. " The General Assembly, in the Act approved March 30, 1937, (Georgia Laws 1937, pages 675-677) , has defined the term "private pond". Section 7 of said Act reads: "Provided, That the owners of private ponds shall have the right to take fish therefrom without procuring any license and may take them in any manner whatever; a private pond is defined to be any pond, privately owned, on any stream of this State which goes dry of water during any season of the year." The rule is that, where the General Assembly has provided a statutory definition of a word or phrase, such definition must prevail, regardless of what other meaning may be attributable to such words or phrases by other authorities or even by common understanding; and it is improper to seek to give such words or phrases thus defined a different meaning. Emery Bird Thayer Dry Goods Co. v. Williams, 98 F. (2d) 166; Cothran & Connolly v. U. S., 276 F. 48; Von Weise v. Commissioner of Internal Revenue, 69 F. (2d) 439. So, while we are fortunate in having a statutory definition to guide us in the construction of the act in question, the definition given seems to presuppose that the word "pond" needs no definition, and its meaning is well understood. Since your question involves a definition of the word "pond", and the General Assembly has not defined a pond, it will be necessary to look to some of the decisions of courts of competent jurisdiction and to ~he lexicographers. Black's Law Dictionary, Third Edition, attributes the following definition of a pond to Webster: "A body of stagnant water without an outlet, larger than a puddle and smaller than a lake; or a like body of water with a small outlet." Black's Law Dictionary also carries this definition: "A standing ditch cast by labor of man's hand, in his private grounds, for his private use, to serve his house and household with necessary waters; but a pool is a low plat of ground by nature, and is not cast by man's hand." In Munn v. Board of Supervisors of Greene County, 141 N. W. 711, 714, the Supreme Court of Iowa construed the word "pond" to mean: "a body of water naturally or artificially confined, being smaller than a lake, but of an appreciable area, " and in Humphreys-Mexia Co. v. Arseneaux, 297 S. W. 225, 229, the Supreme Court of Texas said that all water, when it comes, in the usual course of mi- 278 gration, to rest permanently in a basin made by nature for that pUrpose, although it was flood water at one time, ceases to be flood water, and becomes a lake or pond. In 49 Corpus Juris, page 1079, the statement is made, in reference to the definition of a pond, that "it is the body of water which composes a pond". (Emphasis supplied.) In the light of these definitions, I am of the opinion that a pond, under our law, is a body of water resting in a basin, either natural or artificial, in which no stream or current is longer distinguishable. A pond is, therefore, distinguishable from a stream or river. Correlating this definition with that given us by the General Assembly of a "private pond", I am of the opinion that a private pond is a body of water lying in a basin, either natural or artificial, the boundaries of which are entirely under the ownership of one person or of joint owners, and is located on a stream of this state which goes dry on account of natural causes during some season of the year. Accordingly, if that part of the stream which feeds into the pond does not go dry, the pond would not be a private pond. Neither would the fact that that part of the stream which is an outlet to the pond goes dry as a result of the gates to the pond dam being closed, change the status of the pond. The statute says: "on any stream of this state which goes dry". (Emphasis supplied.) In the situation referred to in your letter, the stream below the dam is "forced dry" by the interposition of means other than natural. Since the language of Section 7 exempts the owner of a private pond from the requirement of procuring a license only when he takes the fish therefrom, the owner of a private pond who caught fish below the dam and outside of the body of water constituting the pond would not be exempt from the requirement of procuring a licens:e. It is only so long as the owner of the private pond takes the fish "therefrom" that he is exempt from the requirements of obtaining a license, and exempt from the other provisions of the statute describing how fish may be caught. What is said above is necessarily true for the reason that, while a riparian owner of a private pond has the exclusive right of fishery upon his own land, he must so exercise that right as not to injure others in the enjoyment of a right upon their lands, either above or below. He cannot wilfully or wantonly destroy the fish passing through the water over his land, or pollute the water to the injury of the fishing rights of a lower proprietor. Consequently, he cannot, by closing the gates to his dam, cause the water in the stream below the dam (even though a part of said stream is on his own land) to cease to flow, to become stagnant in pools, and thus prevent the fish from having free passageway on down the stream where they may be caught by lower riparian owners of land adjacent to the stream. See Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 21 L. ed. 133; State v. Roberts, 59 N. H. 256; People v. Truckee Lumber Co., 116 Cal. 397. Section 45-510 of our Code, codified from a statute more than fifty years old, cannot be construed otherwise than as an effort on the part of the General Assembly to guarantee to all riparian owners upon a stream or river of this state their rights in the free passage of fish up and down said stream or river, for said section provides: "Any person who shall place in any river, creek or fresh-water drain, any dam, trap, net, seine, or other device for catching fish, unless the main channel of such stream shall be left open for a space of 10 feet for rivers and one-third of the channel of a creek, at low-water mark, unobstructed for 279 the free passage of fish up or down such stream, shall be guilty of a misdemeanor." The rights of riparian owners in the fishery of streams and rivers of a state are so ancient that their origin is practically lost in antiqUity. The common law of England recognized the right of a riparian owner to take fish in the waters running over his soil, and to appropriate them to his own use; but, the fish being the common property of the people, such owner has never had the right to obstruct their passage from that portion of the river which flows over his land, nor has he the right to wantonly destroy the fish passing over it, and thus deprive the community of their right to and ownership in the fish, -since the manner in which, the time when, and the amount such riparian owners shall take, for the preservation of the common property is a legislative and governmental function. The right of fishing and hunting has always been considered one of great public interest and of vast importance. History tells us that the ancient kings, after their conquests, claimed the game and fish in the kingdom as a part of their prerogative, and conferred upon their favorites and dependents royal franchises to take game and fish, to the exclusion of the people. The people, however, did not cease in their struggle to compel their monarchs to restore their ancient right of hunting and fishing to them, and the success of their efforts was first manifested in 1215 when King John was compelled to restore the right of hunting and fishing to the people in the Magna Charta itself. The 39th Chapter of that instrument declares: "All kydells (weirs) for the future shall be quite removed out of the Thames and the Medway, and through all England, except on the sea coast". The importance of the right of fishery to the people is made manifest by the provisions of Chapter 48 of the Magna Charta, which reads: "All evil customs of forests and warrens and foresters and warreners, . . . water banks and their keepers, shall immediately be inqUired into by twelve knights of the same county, by oath, . . . and within forty days after inqUisition is made, they shall be altogether destroyed by them, never to be restored. " The intent of this language, according to Lord Coke, was that no owner of fishing banks "should in the future so appropriate or keep the rivers separate to himself as to prevent others from fishing or having passage at them". Sir Edward Coke is credited with having observed that the Magna Charta and the Charta Foresta were "confirmed, established and commanded to be put into execution by 32 several acts of Parliament, in all" . and that, since each of these acts embraced the provision with reference to the removal of weirs (a fence or enclosure set in a stream to catch fish), it established beyond an question that the power to control the exercise of the right of fishery was then, and it has been ever since, regarded as a national concern, and of such public importance as to form one of the chapters of the constitution or bill of rights of the British people. The doctrine that, whatever the private right of taking fish in streams flowing over a man's land, it is under the limitation that its exercise may be regulated and controlled, as public necessity may reqUire, and that the free passage of fish up and down a stream may be secured by enactment, and, in the absence of any enactment, is secured by the common law, is firmly established by the following cases: 280 Stoughton v. Baker, 4 Mass. 522; Commonwealth v. Chapin, 5 Pick. 199; Carson v. Blazer, 2 Binn. 475; Hooker v. Cummings, 20 Johns. 90; Parker v. The People, 111 Ill. 581. As was said in State v. Roberts, 59 N. H. 256, "It is a well established principle, that every person shall so use and enjoy his own property, however absolute and unqualified his title, that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the public. Hence, while the riparian owner has the exclusive right of fishery upon his own land, he must so exercise that right as not to injure others in the enjoyment of a similar right upon their lands upon the stream above and below. He must not, by means of dams or other artificial obstruction, prevent the passage of fish up and down the stream, nor can a prescriptive right to maintain such obstructions be acquired in any of the waters of this state . . . State v. Franklin Falls Co., 49 N. H. 240. The right to have migratory fish pass in their accustomed course up and down rivers and streams is a public right, which may be regulated and protected by the legislature, and, so far as the waters of this state are common passage-ways for fish, they are of a public character, and subject to legislative control." (Emphasis supplied. ) See also Peters v. State, 36 S. W. 399; State v. Lowder, 153 N. E. 399. In the Holyoke Water Power Company case, supra, the Supreme Court of the United States, speaking through Justice Clifford, said: "Fishing rights below a dam, constructed without passageways for the fish, are liable to be injured by such a structure as well as those owned above the dam, as the migratory fish, if they cannot ascend to the head waters of the stream at their accustomed seasons, will soon cease to frequent the stream at all, or in greatly diminished numbers." In conclusion, therefore, I am convinced that, under the definition of a private pond, the limits of such a pond do not extend below the dam which impounds the water, and, although the owner of the private pond may take fish "therefrom" in any manner he desires and without procuring a license, nevertheless, such rights have not been conferred by the General Assembly upon the owner when he fishes outside of the waters of said pond. Section 45-505 and 45-506 of the Code provide, in part: "It shall be a misdemeanor for any person or persons to take fish from any of the fresh waters by means of seines, traps, nets, or similar devices or by means of dynamite, poison, or by other means except with hook and line." "Any person who shall place or cause to be placed in any of the waters of this State, except private ponds, any trap, basket or similar device for the purpose of catching fish shall be guHty of a misdemeanor. " Accordingly, I am of the opinion that, when an owner of a private pond places a fish trap, basket, etc., below the dam of said pond and in the channel of the outlet to said pond below, the dam, although such outlet is upon the land of the owner of the private pond, he is violating the provisions of the statute last above quoted. The fact that the stream or outlet below the dam is 281 forced dry during some season of the year by the manipulation of the gates or enclosures of the dam does not impart to the pools formed in the channel of the outlet the nature of "private ponds" so as to authorize the owner of the land on each side of said channel or stream to fish therein with traps, seines, baskets, etc. Under such circumstances, in determing whether the pond was a private pond within the meaning of the statutory definition, you would not look to see whether the stream below the pond goes dry during any season of the year, but, on the contrary, it would be necessary to determine whether the stream which feeds the pond goes dry during any season of the year. If it does not, then the pond itself is not a private pond. If it does, and the pond is entirely owned by one person or by joint owners, then it would be a private pond. This is true because of the specific act of the General Assembly of this State defining a private pond to be "any pond, privately owned, on any stream of this State which goes dry of water during any season of the year". This statute is controlling. I am powerless, as Attorney General, to add to or to take from the definition of a private pond as written into statutory law by the General Assembly of this State. GAME AND FISH-Marsh hens, possession of, illegal in certain counties. August 17, 1940 Hon. Joe D. Mitchell Director, Coastal Area Division of Wild Life Brunswick, Georgia I am pleased to acknowledge receipt of your letter of recent date inquiring about the possession of marsh hens in Mcintosh County. The Act of the General Assembly, approved December 31, 1937, amending Section 45-308 of the Code of 1933, is as follows: "Provided, however, that nothing herein shall authorize the hunting, killing or possession of marsh hens for a period of three years from the passage of this Act in any county in the State of Georgia having a population of not less than 5758 and not more than 5768, according to the U. S. census of 1930 or any subsequent years. " (Emphasis supplied.) I assume that this applies to Mcintosh County. But whatever county it has reference to, the statute is quite clear that possession is as much prohibited within such county as the hunting or killing. So anyone possessing marsh hens in such a county would be violating the statute regardless of whether the marsh hens were hunted or killed. As to the constitutionality of this Act, I refrain from passing upon this question, as the constitutionality of a statute is to be determined by the courts of the land and not by any construction made by the Attorney General. GAME AND FISH-Deer, closed seasons prohibit hunting of, on private property. November 6, 1939 Honorable Wade Johnson Attorney at Law Mount Vernon, Georgia Honorable Downing Musgrove, Executive Secretary, has referred to me your telegram of the 3d instant requesting an opinion as to whether the recommendation of two successive grand juries made in 1935 closes the season for hunting 282 deer in Montgomery County, and, if so, whether such recommendations would effect thehunting of deer on privately owned property by the owner. While I am not authorized to give an official opinion to an individual upon the request of the Executive Secretary of the Governor, I am glad to give you my unofficial opinion with reference to the questions asked. Code Section 45-312 provides: "The Commissioner of Game and Fish shall prohibit the hunting of deer in any county, upon the recommendation and request of two successive grand juries of such county: Provided, however, that any official order issued by the Commissioner, pursuant to this section, shall specify the number of years during which said closed season on deer shall remain in force. Such order shall not become effective in any county until it shall have been published once a week for four consecutive weeks in a newspaper of general circulation in said county. " Whether or not the recommendations made in 1935 by two successive grand juries is still effective would depend upon whether the same was properly published in accordance with the provisions of the above stated code section. I find that the order of Honorable Joe D. Mitchell, Director of the Division of Wild Life under date of October 13, 1937, after reciting that the grand jury of Montgomery County at its May term 1935 and its November term 1935 "recommended and requested that a closed season for hunting deer in said county be enforced for a period of five years from November 1935" provides: "Now, therefore, I, Joe D. Mitchell, Director, Division of Wild Life, in accordance with aforesaid recommendation and request, do hereby prohibit the hunting of deer in Montgomery County, Georgia, for a period of five years, to wit, from November 10, 1935, to November 10, 1940." It was provided in the order that it should not become effective until it had been published once a week for four consecutive weeks in a newspaper of general circulation in said county. I presume that this publication was perfected. If not the order is, of course, not effective. If it was properly published as required by the statute, the same is still effective. In the event that the order is effective, I am of the opinion that the same would prohibit the hunting of deer on privately owned property by the owner of such property, in said county. GAME AND FISH-Fishing prohibited between April 15th and June 1st. April 21, 1939 Hon. C. S. Herrington, J. P. Midville, Georgia This will acknowledge receipt of your letter of April 18th in which you inquire whether there is now in effect a law of this State prohibiting fishing between the dates of April 15th and June 1st, and also as to who has the authority to enforce the laws relating to game and fish since the Commissioner of the Division of Wild Life has resigned. The Attorney General is not authorized by law to render an official opinion except when so requested by the Governor or by one of the officials of the Executive Department of this State, therefore, anything that I might say with reference to your questions must be considered as merely an expression of my personal views upon the subject and binding upon no one. 283 The Act of 1931, page 169, provided in part as follows: "It shall be unlawful or any person to fish in any of the fresh waters of Georgia, by hook and line or by any other means, from April 15th to June 1st of each year. " This Act was not limited to a five-year period, as your letter suggests, but the section hereinabove quoted now appears as Section 45-501 of the Georgia Code of 1933 and is still the law of this State. I do not believe that a vacancy in the office of the Director of the Division of Wild Life of the Department of Natural Resources would affect the authority of the State Game Protectors during the term for which they are appointed to enforce the laws of this State with reference to the protection of game and fish, which duty is imposed upon them by law. GAME AND FISH-Cooked fish, sale of, not taxed. July 25, 1939 Honorable Chas. N. Elliott, Director Division of Wild Life This will acknowledge your request of the 12th instant, through Honorable Harry D. Butner, Game Technician and Supervisor Game Protectors, for an opinion as to whether the provisions of Code Section 45-503 requii:'ing peddlers of fresh-water fish and persons selling or offering for sale fresh-water fish to procure a license from the Director of the Division of Wild Life for which a fee of $5. 00 is enacted applies to persons selling cooked fish caught from Georgia waters and sold for the first time as a meal to individuals, or whether said section applies only to the sale of raw fish. Code Section 45-503 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," and imposes a license fee of $5. 00. While the language of the statute might, under a strained construction, be said to apply to persons selling cooked fish caught from the fresh-waters of this State and sold for the first time as a meal to individuals, nevertheless I am of the opinion that such a construction would be wholly unauthorized and without foundation upon any legislative intent expressed in the act itself. It is a matter of common knowledge that few, if any, fresh-water fish are cooked and then peddled. Fish (except when canned) are usually sold when raw and uncooked. The legislature must have taken this fact into consideration in enacting the statute, and so doing necessarily meant only to require a license of persons peddling or selling fish in the state in which they are commonly soldthat is, raw. If possible, the statute must be so construed as not to require the same property to be twice taxed or twice subjected to the same license fees or other imposts in its course from producer to consumer. See Georgia Railway & Banking Co. v. Wright, 125 Ga. 589. Paragraph 31 of the General Tax Act of 1935 (Ga. L. 1935, p. 21) levies a license or occupation tax upon persons operating cafes, restaurants or lunch rooms. The payment of this tax entitles the person operating such a place to sen any kind of food, including cooked fresh-water fish, as a part of a meal; and it is not to be implied that the legislature intended to impose upon persons paying this tax the additional burden of obtaining a fresh-water fish license should they desire to serve fish to their patrons. 284 Being a restriction on trade and upon the inherent right of the citizen to dispose of animals ferae naturae reduced to possession by them as they see fit, the statute must be strictly construed as against the State and in favor of the citizen, and its provisions are not to be extended, by implication, beyond the clear import of the language used. See Standard Oil Co. v. Swanson, 121 Ga. 412, Mystyle Hosiery Shops Inc. v. Harrison, 171 Ga. 430 (1). "Whenever there is a just doubt that doubt should absolve the tax payer from his burden. " Mayor etc. of Savannah v. Hartridge, 8 Ga. 23, 30 (8) . I am therefore of the opinion that Section 45-503 does not apply to persons selling cooked fresh-water fish as a meal to individuals. GAME AND FISH-Employees of owners of private ponds not exempt from fishing license. October 10, 1939 Hon. Hughes H. Walker C/o Rushing Hotel Statesboro, Georgia I am pleased to acknowledge receipt of your letter of September 25, 1939, in reference to the requirements as to licenses for fishing in private ponds. I regret that due to my absence from the State on official business, I could not reply to your letter sooner. In Acts of 1937, pages 675 and 676, the law provides: "Provided, that the owners of priviate ponds shall have the right to take fish therefrom without procuring any license, and may take them in any manner whatever; a private pond is defined to be any pond privately owned on any stream of this State which goes dry of water during any season of the year. " (Emphasis supplied.) You will notice from the foregoing provision of law that only the owners of private ponds are extended the privilege of taking fish therefrom without procuring a license. I do not believe this provision of law would extend to those employed by the owners of private ponds to take fish therefrom. The general rule is that exemptions must be strictly construed. Of course, you understand that this is not an official opinion but merely expresses my personal view on the matter. GAME AND FISH-Persons over 16 years of age, except owner, subject to license for fishing in private ponds. November 13, 1939 Honorable Charles N. Elliott, Director Division of Wild Life This will acknowledge yours of the lOth instant requesting an opinion as to whether persons (other than the owner), over the age of sixteen years, may fish in a private pond with seines, nets, gigs, etc., without a fishing license. Code Section 45-505 provides: "It shall be a misdemeanor for any person or persons to take fish from any of the fresh waters by means of seines, traps, nets, or similar devices or by means of dynamite, poison, or by other means except with hook and line: Provided, however, that any person in lawful possession of a private 285 pond under lease or ownership, and others with his consent, may fish in said ponds at any time and in any manner: ProVided, further, that nothing herein shall be deemed to modify or repeal the laws regulating shad fishing: ProVided, further, that it shall be lawful to use gill-nets for the purpose of taking fresh-water mullet, carp, gar, and suckers during the months of December, January, and February, proVided that the mesh of said gillnet shall not be less than three inches square or six inches when streatched." (Emphasis supplied. ) This section, when properly construed in connection with Section 45-247 of the Georgia Annotated Code which reads: "The owners of private ponds shall have the right to take fish therefrom without procuring any license and may take them in any manner whatever; a private pond is defined to be any pond, privately owned, on any stream of this State which goes dry of water during any season of the year," simply means that the owner of a private pond may fish without a license in any manner he desires in said pond, but no one else over the age of sixteen may fish in said pond, even with the consent of the owner, without a license as required by law. GAME AND FISH-Shrimp season cannot be changed by tide water inspector. April 5, 1939 Ron. R. F. Burch Commissioner, Department of Natural Resources State Capitol Atlanta, Georgia This will acknowledge receipt of the letter addressed to you from Ron. James M. DeFoor in which he makes inquiry concerning the authority of the Tide Water Inspector to change the season for catching shrimp in the Georgia sounds. The Act of 1924 (Georgia Laws 1924, p. 116) which now appears as Code Section 45-512 of the Georgia Code of 1933, proVides in part as follows: "The use of all nets, except hand-drawn nets, in the inside salt water rivers, creeks, and estuaries is hereby prohibited. The use of nets, except hand-drawn nets, is prohibited in the sounds of this State during the months of March, April, May, June and July of each year. The boundaries of the sounds are as shown in Bulletin 19 of the United States Geodetic Survey." This has been the law since 1924. Its provisions are so clear that no construction is required. No administrative officer has the authority to change the closed season fixed by the Legislature as aforesaid. While the Act of 1937 creating the Department of Natural Resources proVides, in Section 9, Paragraph 2, that all of the powers, duties and functions of the Commissioner of Game and Fish are vested in the Director of the Division of Wild Life and the Commissioner of the Department of Natural Resources, and while Section 45-109 of the Code of 1933, which was codified from the same Act as Section 45-512 hereinabove quoted, vested in the Commissioner of Game and Fish certain discretionary powers among which is the power "to regulate the season during which the various species (of fish or any kind of seafood) may be taken in the several waters of this State" (parenthesis ours) , it will be noted that the power given is that of regulating "the season during which the various species may be taken in the several waters of this State"-not the 286 power to regulate the season during which the various species may not be taken in the several waters of this State. The Director and Commissioner, therefore, have the power to regulate an open season, but not the power to open a closed season. (Emphasis supplied.) That the Legislature did not intend, by the use of the language just quoted, to vest the Director of Wild Life and Commissioner of the Department of Natural Resources with the authority to prescribe or regulate the closed seasons for the taking of fish and other seafoods, is manifest when it is construed in connection with Section 45-512, for in this latter section the Legislature itself positively prescribed a definite closed season for the taking of fish or seafoods in the sounds of this State by any means "except hand-drawn nets". Certainly the Legislature could not have intended to vest any administrative officer or officers with the power to amend or modify the law prescribing the aforesaid closed season. If it had been the legislative intent to vest in an administrative officer a complete discretion in the matter of closing the sounds to the taking of fish and seafood, except by hand-drawn nets, the language of Section 45-512 quoted above was wholly unnecessary and contradictory to such purpose. Since both Sections 45-109 and 45-512 are codified from the same Act, the Act of 1924 (Georgia Laws 1924, pp. 101, 112, 116) , and should, under certain well known principles of statutory construction, be construed in pari materia and so construed as to give meaning and effect to each section and sentence of the law, I am of the opinion that when the Legislature prescribed by statute that the months of March, April, May, June and July of each year should be a closed season for the taking of fish or other seafoods, except by hand-drawn nets, in the sounds of this State, this language must be taken as an expression of the legislative intent to remove this matter from the discretionary powers vested under the provisions of Section 45-109. If the season which the Legislature has fixed is wrong, this is a matter which the Legislature has the power to change, should they see fit so to do, and, in niy opinion, they are the only body which has such power. I do not find any authority vested in the Governor to suspend the operation of Section 45-512. It also necessarily follows from what has been heretofore said that the Chief Inspector of Coastal Fisheries, who by Section 45-120 of the Code is given charge of the enforcement of all laws for the protection of fish, shell fish, and crustacea in tidewater Georgia, and the performance of such other duties and functions as may be delegated to him by the Commissioner, does not have authority to suspend the operation of Section 45-512 of the Code, nor do the tidewater inspectors, who, under the provisions of Section 45-116, may be employed to assist in the enforcement of all laws for the protection of fish, shell fish and crustacea, have such power. GAME AND FISH-Shrimp in territorial waters. April 2, 1940 Hon. J. D. Mitchell Director, Coastal Area Division of Wild Life Brunswick, Georgia I am pleased to acknowledge receipt of your letter of March 28, 1940, asking my opinion as to what distance the territorial waters extend from Georgia's shore line into the ocean. Prior to August 15, 1916, the territorial extent of the State of Georgia on the east coast was the coast line. The General Assembly of 1916 amended the pre- 287 vious Acts defining the law and extending the limits into the ocean. This portion of the law, as amended by the 1916 Act, provides, in part as follows: "Thence along the middle of said river (St. Mary's) to the Atlantic Ocean, and extending therein three English miles from the low water mark; thence running in a northeasterly direction and following the direction of the Atlantic coast to a point opposite the mouth or inlet of said Savannah River, and from thence to the mouth or inlet of said Savannah River, to the place of beginning; including all lands, waters, islands and jurisdictional rights within said limits, and also all the islands within twenty marine leagues of the sea coast. " So, any shrimp taken from the ocean, between the points indicated on the St. Mary's River and the Savannah River, and within the three English mile limit from the shore line, would be deemed to have been taken from Georgia waters, as much so as if taken from any other point within the boundaries of the State of Georgia. GAME AND FISH-Fishing on lands of another without permission is unlawful. June 21, 1939 Honorable Thomas E. Dawson Solicitor City Court of Ludowici Ludowici, Georgia This will acknowledge yours of the 19th instant with reference to the cases pending in the City Court of Ludowici against persons for fishing in the Altamaha River. You state that these prosecutions are proceeding under Code Section 40-513, which section makes it a misdemeanor for any person to fish upon the lands of another with or without a license without first having obtained permission from the landowner. Our Courts do not appear to have decided the question as to the rights of persons owning the property abutting upon the Altamaha River. However, in the case of Florida Gravel Company v. Capitol City Sand and Gravel Company, 170 Ga. 855, the Supreme Court quoted with approval from the case of Young v. Harrison, 6 Ga. 130, as follows: "The public right (in navigable streams) is one of passage, and nothing more, as in a common highway; it is called in the books an easement and the proprietor of the adjoining land bas the right to use the land and water of the river in any way not inconsistent with this easement. " (Parenthesis ours.) In the case of Jones v. The Water Lot Company, 18 Ga. 539, the Supreme Court was dealing with the rights of a grantee of a grant from the State to a lot bounded by the Chattahoochee River, and in passing upon this question the Court commented that in Young v. Harrison, supra, "This Court held, that grants of land, bounded on rivers above tidewater, or where the tide does not ebb and flow, carry the grantee to the middle of the river. " It was pointed out in the Florida Gravel Company case, supra, that the principles embodied in Section 3632 of the Code (now Code Section 85-1304) did not apply to grants of land by the State prior to the adoption of the Code of 1863, This Code Section reads as follows: 288 "The rights of the owner of lands adjacent to navigable streams extend to low water mark in the bed of the stream." In view of this decision, the determination of the rights of fishery might depend upon whether or not the prosecutor's predecessor in title acquired the land prior to the adoption of the Code of 1863. If he did, then it appears that the prosecutor would have title to the land extending to the middle of the thread of the stream, and could prohibit persons from fishing in the water on said land. If the property was granted since the adoption of the Code of 1863, the rights of the prosecutor would probably be only those outlined in Code Section 85-1304-that is, his property rights including the right of fishery would extend only to low water mark in the bed of the stream. You might refer also to the case of Thompson v. Tennyson, 148 Ga. 701. Said case, however, relates to a non-navigable stream. The case of Robinson v. The State, 12 Ga. App. 683, which holds in part: "One who fishes upon the lands of another without his consent is guilty of a misdemeanor, without reference to the character of the waters from which the fish are taken", might, or might not, be subject to the construction that our Courts have adopted the principle that there is no distinction, in determining the rights of fishery, between navigable rivers where the tides do not ebb and flow and nonnavigable rivers. GAME AND FISH-Shad fishing license. January 4, 1940 Hon. Joe D. Mitchell Director Coastal Area Division of Wild Life Brunswick, Georgia You have asked my opinion as to whether the $2.00 license required of persons engaged in commercial fishing in salt waters includes a license for taking shad for the purposes of sale. Under Section 3 of an Act approved August 17, 1918, (Georgia Laws 1918, pages 270-272) it was proVided "That any person who shall take shad fish from the waters of this State for purposes of sale, without first procuring a license from the Commissioner of Game and Fish, as hereinafter provided, shall be guilty of a misdemeanor and punished as hereinafter provided. " Under Section 4 of the said Act of 1918 it was provided that the license referred to in S,ection 3 of the Act should be as follows: "That persons haVing a residence within this State and being citizens of the United States, shall pay a fee of one dollar ($1. 00) for such license, and that citizens of other states residing outside of this State, and who take shad from the waters of this State for the purposes of sale, shall first procure from the Commissioner of Game and Fish of this State a license the fee for which shall be ten dollars {$10. 00) , and that aliens, whether residents of this or other States, who engage in the taking of shad fish for purposes of sale from the waters of this State shall first procure a license from the Commissioner of Game and Fish of this State, the cost of which shall be ten dollars ($10. 00) , and that all licenses provided for in this section of this Act shall be good for the term of one year from the first day of the month on which same was issued. " 289 The foregoing statutory provisions were codified in the 1933 Code, Section 45-603 of which provides as follows: "Taking shad for purposes of sale without license. No person shall take shad from the waters of this State for purposes of sale without first having procured from the Commissioner of Game and Fish a license, as follows: Persons having a residence within this State and being citizens'of the United States shall pay a fee of $1 for such license; citizens of other States, residing outside of this State, shall pay a fee of $10; and aliens, whether residents of this or another State, shall pay a fee of $10. All licenses provided for in this section shall be effective for one year from the first day of the month during which they may be issued. Any person who shall take shad from the waters of this State for the purpose of sale, in violation of the provisions of this section, without having first procured the license herein required, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished as provided in section 45-601. " Subsequent to the passage and approval of the foregoing statute with reference to licenses for taking shad from the waters of this State for purposes of sale, the General Assembly, by an Act approved August 19, 1919, (Georgia Laws 1919, pages 236-239) passed an Act to provide, among other things, uniform licenses for salt water commercial fishermen, Section 2 of which Act provided as follows: "Be it further enacted, That any person desiring to take or catch fish from the salt waters of this State for commercial purposes shall first obtain from the Game and Fish Commission a license therefor and said license shall have effect for the remainder of the calendar year in which issued: The fee for such individual license for a resident of the State of Georgia shall be two dollars, and for a non-resident or an alien this fee shall be ten dollars. Said license shall contain the name and post-office address, height, weight, and race of the fisherman, and shall be issued either by the Department of Game and Fish or by the Coast Inspector in the district in which said fisherman is located. '' (Emphasis supplied.) Section 4 of Said Act of 1919 provided: "That if any person not a citizen of this State shall desire to catch or take fish from any of the waters of this State he shall pay an additional tax of ten dollars, non-resident license on his boat and the non-resident fisherman license of ten dollars on each fisherman so employed. If any citizen of the State of Georgia employs non-resident or alien fishermen, said fishermen shall pay a non-resident license of ten dollars each, license to be issued in the manner heretofore described." By an Act approved August 8, 1924, (Georgia Laws 1924, pages 101-117) it was provided (page 117) : "Sec. 36. B eit further enacted, That any person desiring to take or catch fish from the salt-waters of this State, for commercial purposes shall first obtain from the Tidewater Commissioner a license therefor, and said license shall have effect for a period of twelve months from the first day of the month following the date of issue; the fee for such individual license shall be two ($2. 00) dollars. No such license shall be issued to any person not a citizen of this State, and said license shall not issue until the applicant therefor shall state under oath on application provided therefor by the Tidewater Commissioner, that he is a citizen of this State; provided that fish license may be issued to persons not citizens of this State, under the terms and conditions prescribed in Section 28 of this Act. Any person pro- 290 curing a license under this or next preceding section by falsely swearing as to his citizenship shall be guilty of a felony and punished as provided in Section 231 of the Penal Code of Georgia, 1910. " (Emphasis supplied. ) The above quoted portion of the 1924 Act forms the basis for Section 45-213 of the 1933 Code, which provides as follows: "Licenses of persons engaged in commercial fishing in salt waters; fee; nonresidents. -Any person desiring to take or catch fish from the salt waters of this State, for commercial purposes, shall obtain from the Commissioner of Game and Fish a license therefor, and said license shall have effect for a period of 12 months from the first day of the month following the date of issue; the fee for such individual license shall be $2. No such license shall be issued to any person not a citizen of this State, and said license shall not issue until the applicant therefor shall state under oath on application provided therefor by the Commissioner of Game and Fish, that he is a citizen of this State: Provided, that fish licenses may be issued to persons not citizens of this State, under the terms and conditions prescribed in section 45-216. " (Emphasis supplied. ) In an opinion by my distinguished predecessor, the late Honorable M. J. Yeomans, under date of March 10, 1934, construing the Acts in question, he ruled as follows: "Comparing the Act of 1918 and the Act of 1919, it will be noted that the shad fishing license as imposed under the Act of 1918 is in the amount of $1. 00 for residents and must be obtained by 'any person who shall take shad fish from the waters of this State for the purpose of sale. ' The Act of 1919 imposes a license fee of $2. 00 on residents and requires 'any person desiring to take or catch fish from the salt waters of this State for commercial purposes,' to obtain the license. Construing these Acts together, it is our opinion that if the shad fish are caught in fresh waters, the license required is that of $1. 00, whereas, if the same are fished for or caught in salt waters of this State, the fee required is $2. 00. There is no apparent conflict in these provisions since one is applicable to the waters of this State without regard to the nature of the waters, whereas, the license fee as imposed under the Act of 1919 is applicable only to the salt waters of this State. It is our opinion further that a person obtaining a license under the provisions of the Act of 1918 relative to shad fishing would not be authorized under this license to fish for shad or any other fish in the salt waters of this State, without first procuring the salt water license as imposed under the Act of 1919. Neither would a person who obtains a salt water license under the provisions of the Act of 1919 be authorized to use the same in fishing for or catching shad in the fresh waters of this State. The provisions of neither license include the privileges as provided under the other. Each license as provided for under the respective Acts is peculiarly adapted and applicable only to the nature of the waters in which it is to be used as a grant of fishing privileges. Each license is exclusive of the other, that is, a salt water license cannot be used in fresh water regions and a fresh water license cannot be used in salt water regions." Opinions of the Attorney General, 1933-1934, page 216. (Emphasis supplied.) I think the foregoing opinion rendered by Judge Yeomans is an admirable expression on the subject involved, inasmuch as repeals by implication are not favored, and the later statute will not be construed to repeal a prior Act on the same subject where there is no irreconcilable repugnancy between the two. Cornwell v. Atlanta Trust Company, 177 Ga. 303. 291 In the aforl)said opinion by Judge Yeomans under date of March 10, 1934, he also stated that if there is a conflict between the Acts relative to these fishing licenses the provisions of the later Act would prevail over the provisions of the earlier Act. To quote Judge Yeomans: "... if by the Act of 1918which gave a person, upon obtaining the license as prescribed therein, a right to take shad fish from 'the waters of. this State for purposes of sale' was meant by the Legislature to apply to all waters, whether fresh water or salt water, the Act of 1919 by necessary implication, if not otherwise, repealed the provisions of the Act of 1918 in so far as the same extended to the salt waters of this State. In other words, since the passage of the Act of 1919 relative to salt water fishing, if there is a conflict between said Act and the Act of 1918 relative to fishing licenses then the Act of 1918 must now be construed as follows: 'Any person who shall take shad fish from the waters of this State, (except the salt waters of th;s State) for purposes of sale, must first obtain a license as prescribed under Section 2089 (4), and any person taking fish from the salt waters of this State must first procure a license as provided for in the Act of 1919 or under Civil Code Section 2158 (28) '. " (Emphasis supplied. ) GAME AND FISH-shad fishing license, when reqUired. March 6, 1940 Hon. Charles N. Elliott Director Division of Wild Life You have asked my opinion as to whether a person holding a license to take shad from fresh water can also be reqUired to comply with the provisions of the Act approved March 30, 1937 (Georgia Laws 1937, pages 675-677) pertaining to fishing-license regulations. The 1937 Act, supra, deals with sportsmen's licenses as distingUished from commercial licenses; whereas Code Section 45-603 deals with commercial licenses required of shad fishermen. The 1937 Act contains no limitations as to the kind of fish which a sportsman may catch. On the other hand, the commercial license required of shad fishermen by Code Section 45-603 limits the right of the holder of such license to catching a particular kind of fish, -shad fish. It is my opinion that the holder of a sportsman's license under the 1937 Act is authorized to catch any kind of fish which might bite his hook, provided, of course, that he is not fishing for commercial purposes. On the other hand, the holder of a commercial shad fishing license under Code Section 45-603 is limited to catching shad fish. The holder of such commercial shad fishing license can, in my opinion, use it for the purpose of catching shad fish for non-commercial purposes, as well as for commercial purposes. He cannot, however, use his commercial shad fishing license to catch any kind of fish except shad fish. 292 GAME AND FISH-Oysters, dealers or distributors, how taxed. November 7, 1939 Hon. Joe D. Mitchell Director, Coastal Area Division of Wild Life Brunswick, Georgia I have your letter of November 2nd asking if a person taking oysters from his own property or from property leased from private interests is subject to payment of the tax provided for in Section 45-812 of the Code of 1933. The Code Section in question, as amended by the Act approved March 24, 1937 (Georgia Laws, 1937, pp. 622-624), applies to all distributors or dealers, including canners or manufacturers who are distributors or dealers, who sell oysters in this State (except those importing and selling the same in the original package in which brought into this State). There is a proviso, however, exempting peddlers or hucksters who sell direct to the consumer; and under Section 45-815 it is provided that a can or package of seafood, stamped to comply with the requirement of the payment of the occupation taxes in question, shall not be subject to a further tax when passing through the hands of another distributor. Section 45-813 of the 1933 Code provides that any person or persons, firm or corporation, who shall sell, ship or receive for sale any canned oysters, raw shucked oysters, or oysters to be sold in the shell, unless there is affixed to each package a stamp or stamps indicating that the occupation tax thereon has been paid, shall be guilty of a misdemeanor. It will be noticed that none of the foregoing Code sections provide any exemptions to a person because the oysters may have been taken from his own property or from property leased from private interests. GAME AND FISH-Municipalities may require license of fish dealers. September 29, 1939 Hon. Roger P. Youmans Dorchester, Georgia I have your letter of September 28th asking if certain cities can require you to obtain municipal licenses to sell fish and oysters at wholesale in such cities, since you are the holder of a 1939 Georgia Wholesale Fish Dealer's License. Neither the Act approved February 16, 1938 (Georgia Laws, Extra Session 1937-1938, pp. 332-337) nor the amendatory Act approved March 20, 1939 (Georgia Laws, 1939, pp. 316-319), assessing an annual State license fee of $50. 00 on each place of business of a wholesale fish dealer, prohibits a municipality from requiring city licenses from such dealers doing business within its corporate limits. The State license merely grants the right to do business insofar as the State is concerned. It does not affect the right of a city to likewise require city licenses for such dealers to do business within the city's limits. Any question which may arise as to the validity or reasonableness of an ordinance of any particular city with reference to license fees should be referred to your attorney for final determination. 293 GAME AND FISH-Wholesale fish dealers license act, when effective. February 29, 194U Hon. E. P. Long Chief Food Inspector Department of Agriculture I have your letter of February 26th requesting my opinion as to the effect of the Act approved March 20, 1939 (Georgia Laws 1939, pages 316-319) with reference to wholesale fish dealers' licenses. The Act of March 20, 1939 provides an annual license fee for each and every resident, non-resident, and alien wholesale fish dealer in the sum of $50. 00 for each place of business, fixed or movable. Section 3 (page 319) of the Act of March 20, 1939, provides as follows: "This Act shall become effective only from and after the passage and effective date of a statute of the State of Florida providing for the same license fees to be charged by that State against non-resident wholesale seafood dealers as are provided for in this Act. " You state in your letter that an organization organized under the Georgia Wholesale Fish Dealers Association is claiming that the Georgia Act of March 20, 1939 is not in effect, dut to the fact that the Florida Legislature did not pass a similar law. The organization in question has evidently been misinformed as to the present Florida law on the subject matter in question. It is my understanding that your office received a letter very recently from the officials in charge of the enforcement of the Florida law stating that during its 1939 Session the Florida Legislature passed an Act providing that all wholesale fish dealers, whether resident or non-resident, must pay an annual license fee of $50. 00. In view, therefore, of the provisions of Section 3, supra, of our own Act of March 20, 1939, it is my opinion that the proper fee to be assessed against all wholesale fish dealers doing business in this State is the sum of $50. 00 for each place of business of each dealer, in accordance with the provisions of the 1939 Act. The 1939 Act of the Georgia General Assembly became operative on the effective date of the statute passed by the Legislature of the State of Florida providing for a $50.00 annual license fee to be charged by that State against non-resident wholesale seafood dealers. The fact that the Florida statute assesses a different and greater fee against aliens is immaterial, inasmuch as the officials charged with enforcement of the Florida law have rendered an opinion to you that the term "alien" applies only to persons who are not citizens of the United States; and the effectiveness of the Georgia Act of March 20, 1939 was contingent only upon the same fee being charged to "non-residents" as distinguished from "aliens". GAME AND FISH-Wholesale fish dealers license, who subject. August 22, 1939 Honorable E. P. Long Acting Chief Food Inspector I have your letter of August 21, in which you ask my opinion on the following questions: 1. Is the owner of a fish packing shed, who rents it to others and receives a certain percentage of their sales of fish as rental for said shed, subject to the annual license fee of $50. 00 as a "wholesale fish dealer"? 294 2. If the owner of the above fish packing shed also owns a fleet of fish boats which bring fish to said shed, where they are prepared for market and are actually sold by his said tenants along with fish belonging to said tenants, the owner of said boats receiving from said tenants the proceeds from the sale of fish taken from his said boats, would the owner of such boats be subject to the annual license fee assessed against a wholesale fish dealer? Section 4 (a) of the Act approved February 16, 1938 (Georgia Laws Extra Session 1937-1938, pages 332-337, at page 333) defines a wholesale fish dealer as follows: "'A wholesale fish dealer' shall be held to mean and include any person, firm, association of persons or corporation who sells fish or seafood of any kind to a retail dealer, a wholesale dealer, hotels, restaurants, and/or other public eating places of any kind or nature whatsoever. " Under the Act approved March 20, 1939 (Georgia Laws 1939, pages 316-319, at 318) subsections (a) and (b) of Section 5 of the 1938 Act, supra, were stricken and there was enacted in lieu thereof a single section designated as Section 5 (a) , which provides as follows: " 'Section 5 (a) . The annual license fee for each and every resident wholesale fish dealer shall be the sum of $50. 00 for each place of business, fixed or movable; the annual license fee for each nonresident or alien wholesale fish dealer shall be the sum of $50. 00 for each place of business, fixed or movable. Each truck or movable unit from which fish are sold at wholesale shall be deemed a place of business within the meaning of this Act'. " 1. Answering the first question propounded, it is my opinion that the owner of the fish packing shed who simply rents it to others and receives as rental a stipulated percentage of the sales of his tenants is not "a wholesale fish dealer" within the meaning of the 1938 Act, supra, and would not be subject to a license fee or tax as such dealer. Before the owner of a packing shed operated by other people could be deemed "a wholesale fish dealer" within the meaning of the Act in question, it must be shown that he has an interest or share in the fish selling business as such. The receipt by him simply of a stipulated percentage of the sales of his tenants would not alter the landlord-tenant relationship and make him a co-owner of the business. 2. Your second question shows an apparent interest by the boat owner in the fish selling business. The Act of 1939, supra, specifically provides that each "movable unit from which fish are sold at wholesale shall be deemed a place of business within the meaning of this Act. " If the boat owner sells fish from his boats to his tenants, he must pay a license fee for each boat from which he sells fish. On the other hand, if the boat owner merely uses a number of his boats to supply fish to a tenant to sell as agent for the boat owner, then the boat owner should pay a license fee for each place of business from which the boat owner's fish are sold, without regard to the number of boats used to supply that place of business. GARNISHMENT-State, counties and municipalities are not subject. July 23, 1940 Hon. Byron Anglin The Stewart-Webster Journal Richland, Georgia I have your letter of July 20, in which you ask an explanation of the situation whereby the United States, the State, counties and municipalities cannot 295 be garnisheed for debts owed to employees or other persons. You state that in certain instances it has come to your attention that local tradesmen have suffered losses for extending credit for groceries, clothes and other necessaries to persons receiving checks from government agencies and are unable to collect from the debtors or are unable to forcre collection by garnishment., I can understand your righteous indignation over the situation where persons who obtain credit and could pay refuse to do so. I have no brief for this character of conduct and I feel as keenly as you do the injustice of debtors refusing to meet their obligations when they are able to do so. It is true that under the law the United States, the several states, counties and municipalities are not subject to garnishment as to monies or other properties in their official possession or control, in the absence of express legislative authority clearly evincing the intention tp subject them to such procedure. Our courts have held repeatedly that this exemption from garnishment is in virtue of the sovereignty of such governments, and on grounds of public policy. The State is never suable except by express enactment, and this is also true of subdivisions of the State. Counties cannot be sued except where it is so provided by statute. A municipal corporation is not subject to be garnished for money due by it to one of its employees. Public policy requires that such corporations shall be exempt from the process Of garnishment. In the foregoing paragraph I have quoted literally from decisions of the courts of this State. It will be observed that the courts have simply pointed out that, under the principle of sovereignty of the governments and because the Legislature has not expressly made these governmental agencies subject to garnishment, they are exempt from such process. At first blush it might appear to the layman or to the tradesman who would like to invoke a garnishment against a government agency that such an exemption is not in the public policy. However, it must not be overlooked that the different governmental agencies are primarily rendering a public service for the people. To subject the government to garnishment would place upon the officials of the government multiplied responsibilities and duties. This is true for the reason that there are literally thousands of employees and other persons to whom the different governmental agencies are indebted from time to time. The process of garnishment is a harsh one, in which the garnishee (that is, the person who holds money, property or effects of the defendant) is required to answer. It can be readily seen that the United States or State or other political subdivisions might have to answer in an untold number of cases, if they were subject to garnishment. It might reach such proportions that the answering of these numerous garnishments might impede the primary work of the governmental agencies. Doubtless, the things which I have stated above have prompted the legislative bodies and the courts to exempt governmental agencies from garnishment. The legislative bodies in their wisdom having exempted such agencies from garnishment, there is nothing I can do to change the situation. I have simply tried to express as best I could the things which have entered into the decision of the legislative bodies not to expressly make these governmental agencies subject to garnishment. 296 GENERAL ASSEMBLY-Apportionment of representatives. July 20, 1940 Ron. James R. Davis, Jr. Attorney at Law Thomaston, Georgia I have your letter of July 17th stating that your county will probably run over twenty-five thousand in population under the 1940 census, which would put it in a position of being able to have two members in the House of Repre- sentatives. You ask if such increase in population automatically entitles your county to the additional representative. Under Article 3, Section 3, Paragraph 2 of the State Constitution (Section 2-1402 of the 1933 Code) the apportionment of members in the House of Repre- :Sentatives among the various counties "shall be changed by the General As- i :Sembly at its first session after each census taken by the United States Govern- r, ment." Until such change is made by the General Assembly, it is my opinion that the number of members which each county now has in the House of Repre- sentatives remains unchanged. There would, therefore, be no change in the number of a county's representatives to be elected at the approaching Sep- tember primary. In this connection, I might say that as a matter of fact, as well as a matter of law, it is the unbroken precedent not to elect additional representatives in a county because of a change in census until after the Gen- eral Assembly has first changed the apportionment at its first session following ing each census taken by the United States Government. GENERAL ASSEMBLY-Candidates qualify with the Ordinary. October 18, 1940 Ron. S. J. Flanders, Ordinary Emanuel County Swainsboro, Georgia I am glad to acknowledge receipt of your letter of October 15th, in which you desire a ruling from me as Attorney General as to whether you should insist that candidates for the State Senate must be certified to you by the Secretary of State. I am always delighted to be of assistance to the county officers even though under the Constitution and laws of the State my duties are confined to acting as legal advisor to State Officials only but I always endeavor to keep this office from becoming embroiled in local political controversies over which I have absolutely no control or authority. I have discussed the matter, however, with the Secretary of State and I am advised that it is an unbroken custom for candidates for the House of Representatives and State Senate to qualify with the ordinary and not with the Secretary of State. As a matter of fact, I am advised that only about six out of the 257 members of the General Assembly qualified with the Secretary of State within the time provided by law. Accordingly, if it were insisted that candidates can only qualify for the Senate and House of Representatives with the Secretary of State, the 1941 General Assembly would consist of only about six members. I give you this information to show that it has been the long unbroken custom in Georgia for candidates for the General Assembly to qualify with the ordinary rather than with the Secretary of State. As a matter of law, in dealing with membership in the General Assembly, the courts are powerless to exert 297 any influence or control over the personnel of the House and Senate. The Constitution of our State provides that each branch of the General Assembly shall be the exclusive judge of the election, nturns and qualifications of its members. So it seems that the problem with which you are confronted resolves itself into a political issue which will probably ultimately be submitted to the General Assembly for its determination as to whether Mr. Hall or Mr. Rowland will represent the Sixteenth Senatorial District. GENERAL ASSEMBLY-Eligibility of members. July 27, 1940 Dr. L. F. Bugg Carnegie, Georgia I have your letter of July 25, in which you ask that, if you should be elected to the Legislature, would you be disqualified to continue as a member of the Board of County Commissioners of Randolph County. The question which you ask is not one upon which under the law I have any power or authority to render an official opinion. Your qualification as a member of the Board of County Commissioners of Randolph County is primarily a matter to be determined by you under the advice of the County Attorney. Your eligibility and right to be seated as a member of the Legislature is a question primarily for the General Assembly. Without in any way to be construed as an official opinion, I cite some constitutional provisions and cases which may be of information and help to you. I quote you these constitutional provisions and decisions without comment. Article 3, Section 4, Paragraph 7, Constitution of Georgia, Code Section 2-1507; "2-1507. (6420) Paragraph. VII. Eligibility; appointments forbidden. No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them, except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him, shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected." Sweat v. Barnhill, 171 Ga. 294, 296, 297 (9) : "An incumbent in office as a member of the board of commissioners of roads and revenues for the County of Clinch, as provided for in the act approved August 15, 1929 (Acts 1929, p. 568), is a county officer within the meaning of article 11, section 2, paragraph 1, of the constitution (Civil Code, Sec. 6599) , as amended by adoption of the act approved August 14, 1914 (Acts 1914, p. 43) , which provides: 'The county officers shall be elected by the qualified voters of their respective counties or districts, and shall hold their office for four years. They shall be removed on conviction for malpractice in office; and no person shall be eligible to any of the offices referred to in this paragraph, unless he shall have been a resident of the county for two years and is a qualified voter; provided that.the provisions of this proposed amendment shall not become effective until January 1st, 1917. 'In this connection see Lee v. Byrd, 169 Ga. 622 (151 S. E. 28) ; Malone v. Minchew, 170 Ga. 687 (153 S. E. 773)." 298 ii.McWilliams v. Neal et al., 130 Ga. 733 (1) and (2) : "1. Persons who hold a State office, except justices of the peace and officers of the militia, are ineligible to membership in the General Assembly of this State. "2. But if one, by reason of holding one of the offices not within the above exception, mentioned in paragraph 7 of section 4, article 3 of the constitution of this State, at the time of his election as a member of the General Assembly, is rendered ineligible to member-ship in that body, the fact of his ineligibility would not work an ouster from the first office, but would only affect his right to take a seat as a member of the General Assembly. " GENERAL ASSEMBLY-May provide for payment of past due teachers' salaries. May 11, 1939 Committee on Economy and Efficiency This will acknowledge receipt of the recent communication from your Committee desiring my opinion as to whether the General Assembly may legally provide for the payment of unpaid teachers' salaries, including University Faculty Members' salaries, which said salaries have become due and unpaid during the fiscal year ending June 30, 1939. It is my very definite opinion that the General Assembly may legally and properly make provision and appropriation for the payment of teachers'salaries, including University Faculty Members' salaries, which have become due and unpaid during the fiscal year 1938-1939 at any time the General Assembly desires so to do. It is my opinion that the General Assembly could provide for such payment either before the close of the fiscal year 1938-1939 or after the close of the fiscal year ending June 30, 1939. In 1935 under an Act approved February 1, 1935 (Ga. Laws 1935, pages 5-6) , the General Assembly of this State allocated and appropriated two million dollars of highway funds for the payment of salaries due the school teachers of the State outstanding and unpaid for the years 1928, 1929, 1930, and 1931. In th1s connection I desire to point out, however, that should the General Assembly appropriate funds for the payment of unpaid teachers' salaries, in order to prevent the so-called "grandfather" clause from reducing that appropriation pro rata in event of a deficiency in revenue (such special appropriation being, in legal effect, amendatory to the General Appropriation Act) , it would be necessary to provide specific funds allocated to the payment of such special appropriation or else by specific language to eliminate the application of the reduction clause thereto. GENERAL ASSEMBLY-Constitutional amendments, how submitted. May 13, 1939 Committee on Economy and Efficiency I have the honor to acknowledge your communication of recent date in which you make the following inquiries: "Please advise as to the present law regarding the publishing of constitutional amendments of a local nature; and also regarding those of Statewide interest; also as to voting on such amendments. Please advise as to the local candidates who are placed on a State-wide ballot, such as soliciters and judges." 299 Article 13, Section 1, Paragraph 1 of the Constitution of Georgia (Section 2-8601 of the Georgia Code of 1933) which relates to the publication of proposed constitutional amendments provides, in part, as follows: "And the General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each Congressional District, for two months previous to the time of holding the riext general election and shall also provide for a submission of such proposed amendment or amendments, to the people at said next general election, and if the people shall ratify such amendment or amendments by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments, shall become a part of this Constitution. When more than one amendment is submitted at the same time they shall be so submitted as to enable the electors to vote on each amendment separately." No distinction is made between proposed amendments to the Constitution of a purely local nature and those of a general nature. The fact that a proposed amendment to the Constitution is of a purely local nature and is limited in its application to county lines or municipal boundaries does not alter the provision of the Constitution aforesaid. The 1939 Session of the General Assembly enacted a law providing that the Governor shall publish proposed amendments to the Constitution in only one newspaper in each Congressional District for two months prior to the time of holding the next general election. The same Act of the 1939 General Assembly also provides that the Governor should publish in the public gazette of each county, that is, the newspaper in which sheriff's advertisements are published, a brief and concise summary of every proposed amendment to the Constitution once each week for the two weeks immediately prior to the time of holding the next General election, the said summary of each amendment not to exceed 200 words. Section 39-1105 of the Georgia Code of 1933 provides the fee to be paid newspapers for legal advertisements. This section of the Code fixes the rate to be paid publishers for legal advertisements at $1. 00 per 100 words for the first four insertions and for each subsequent insertion 50t per 100 words. Publication of proposed constitutional amendments is legal advertising and is therefore governed by the rates provided in the said section of the Georgia Code of 1933. Judges and solicitors of the Superior Courts of this State are State offices provided for in the Constitution of Georgia. Judges of the Superior Court are elected, under the Constitution, by the electors of the whole State. Article 6, Section 3, Paragraph 1 of the Constitution of Georgia (Section 2-3102 of the Georgia Code of 1933) . Soliciters General are likewise, under the Constitution, elected by the electors of the whole State. Article 6, Section 11, Paragraph 1of the Constitution of Georgia (Section 2-3901 of the Georgia Code of 1933) . County and city officials are usually referred to as local officers and in the absence of any express provision of law would not be elected by the voters of the entire State. Accordingly, candidates for local offices, in the absence of express provision of law to the contrary, would not be placed on a statewide ballot. 300 GENERAL ASSEMBLY-Constitutional amendments, notice of, how published. April 13, 1939 Honorable E. D. Rivers Governor Attention: Honorable Downing Musgrove, Executive Secretary. I have your letter of April 7, 1939, inclosing a summary of each of the thirtythree proposed amendments to the Constitution, and asking if they meet the requirements of the Culpepper Bill (Act 377) , approved March 24, 1939. Each summary has been carefully examined and compared with its basic bill or resolution, and every one of them is in excellent form and fully complies with the requirement that it be concise. The only other requirement is that no summary must contain more than two hundred words. In our examination we did not count the words, as apparently that had already been done in your office. You also ask an opinion as to whether, "in the event the official county organ publishes the full text of the 33 amendments, it is required that it also publish the summaries. " Section 1 of the Culpepper Bill (Act 377) , approved March 24, 1939, provides that it shall be the duty of the Governor to cause every such amendment to be published in one newspaper in each Congressional District, to be chosen by the Governor, for two months previous to the time of holding the next general election. "Provided, that the Governor shall also cause to be published in the newspaper in each county in which the sheriff's advertisements are published a brief and concise summary of every such amendment, twice during the two weeks immediately prior to the time of holding the next general election. " (Emphasis supplied. ) I think the plain language of the proviso ("shall also") requires that where an "official county organ" (newspaper in which sheriff's advertisements are published) is selected to publish the full text of the amendments, it must also publish the summaries. I realize that such procedure would amount to a duplication of the advertisements and ought not, therefore, to be necessary. But I see no escape from the proviso in Section 1 to the effect that the Governor "shall also" publish a summary of each amendment in the newspaper in each county in which the sheriff's advertisements are published. GENERAL ASSEMBLY-Power to relieve upon forfeited recognizances. February 21, 1939 Him. E. J. Ford House of Representatives State Capitol Atlanta, Georgia Several days ago you asked me about the authority of the General Assembly in reference to recognizances and since that time you have not been by my office, so I am writing you in reference thereto. The Constitution of the State in Paragraph 19 of Section 7 of Article 3 (Code Section 2-1819) provides as foll6ws: "The General Assembly shall have no power to relieve principals or securities upon forfeited recognizances, from the payment thereof, either before or after judgment thereon, unless the principal in the recognizance shall have been apprehended and placed in the custody of the proper officer." 301 GENERAL ASSEMBLY-Is only agency of the State authorized to give consent for suit against the State. April 11, 1939 Hon. Alvan H. Freeman, Vice-Chairman State Board of Education I have your letter of April lith in which you ask an opinion upon the following questions to-Wit: 1. Can the State Board of Education consent to be sued in a case in which a judgment is sought controlling an action or property of the State in a matter not prescribed by statute? 2. Can the Governor or Chairman of the State Board of Education consent for the State to be sued? 3. What agency of the State, if any, can give consent for the State to be sued? In the case of Roberts, Commissioner, et al. vs. BarWick, et al., decided by the Supreme Court of Georgia on Feb. 16, 1939 (187 Ga. 691; 1 S. E. (2nd) 713) the court held: 1. The State can not be sued in any event Without its express consent. 2. Any suit against an officer or agent of the State in his official capacity in which a judgment can be rendered controlling an action or property of the State in a matter not prescribed by statute is a suit against the State. 3. The State has the right to engage in any activity its legislative branch might choose unless prohibited by State or Federal Constitutions, and all such activities are governmental functions." In the case of Roberts, Commissioner, et al. vs. BarWick, et al. supra, the court in its opinion said: "We have no court of Claims in this State, nor petition of rights, as in England. But whoever contracts With the State trusts to the good faith of the State, unless the State sees fit to disrobe itself of its sovereignty. " ... A careful and thoughtful consideration of the full import of this ruling will disclose that any attempt to force the State to submit to suit if carried to the ultimate would be futile, for the reason that there are no facilities or powers anywhere to be found to enforce a judgment thus rendered. If this is a harsh rule and if it does not have the approval of the people of the State, there is a definite way, a plain way, and a legal way, whereby it can be changed. This court has already held that the State could expressly consent to be sued. Therefore a very simple and brief enactment of the legislature giving this consent is all that is required in order to permit a suit against the State." Since the State is a sovereign and is thereby immune to suit without its consent, the power of the State to disrobe itself of its sovereignty in the capacity of consenting to be sued is lodged only With the law making body, which in the State of Georgia is the General Assembly of this State. No other agency or official of the State has any power to give the State's consent to be sued. In my opinion, the State Board of Education cannot give its consent to be sued in any case in which a judgment is sought controlling an action or property of the State in a matter not prescribed by statute. It is my further opinion that the State Board of Education cannot consent for said Board of Education or the State of Georgia to be sued. It is my further opinion that neither the Governor nor the Chairman of the State Board of Education can consent for the State to be sued. 302 It is my further opinion that the General Assembly of the State of Georgia is the only agency of the State that can give consent for the State to be sued and such consent must be evidenced by legislative enactment duly passed. GENERAL ASSEMBLY-Operating costs of State department paid from fees collected without specific appropriation not recoverable if no loss to the State. May 20. 1939 Committee on Economy and Efficiency This will acknowledge receipt of your letter of May 15th in which you ask the following questions: "Where a department is set up by law and it is provided in the Act creating that department that the appropriation to be made by the General Assembly for the operation of that department shall be paid from fees collected by that department, may that department pay its operating costs from fees collected if the General Assembly fails to make an appropriation for the operation of the department; and if the department should collect fees and from those fees should pay its operating costs when there has been no appropriation from the General Assembly for that purpose, are those expenditures illegal? If so, who would be liable for those illegal expenditures, and whose duty is it to collect them back for the State?" In some respects your inquiry does not give me sufficient information to allow an exact answer. The language "the appropriation to be made by the General Assembly for the operation of that department shall be paid from fees collected by that department" would, when standing alone, indicate that the General Assembly did not intend to provide a continuing appropriation in the Act to which you refer. However, the legislative intent must be deduced from a consideration of the whole and every part of a statute taken together. City of Macon v. Georgia Power Company, 171 Ga. 40. As stated in the case of Irons v. Harrison, 185 Ga. 244, at page 249, "No express form of words is necessary to constitute an appropriation. It is sufficient if an intention to make it is clearly manifested by the statute, under the settled rules of construction. 25 R. C. L. 396; 59 C. J. 244, Sec. 388." Since you do not cite the Act to which you have reference, I cannot determine whether or not a continuing appropriation was provided by the terms of the Act. There are certain continuing appropriations authorizing the disbursement of the public funds for various purposes without a General Appropriation Act. Nance v. Daniel, 183 Ga. 538 (541) . An example which may be cited is that contained in Section 92-3604 of the Code of 1933 which declares that "As to those departments, branches, agencies, commissions, and bureaus of the State government which under the law can only assess a sufficient amount of fees, licenses, penalties, etc., to support such department, commission, board, bureau, agency or branch of government, all assessments levied for such support shall be the maintenance appropriation of such department, board, bureau, agency, or branch for each year." See the Nance case, supra. But, as pointed out in the Nance case, Acts providing continuing appropriations must be construed in connection with Section 47-502 of the Code of 1933, which provides as follows: 303 "All general appropriation bills, in addition to the customary itemized statements of the amounts appropriated for the usual expenses of the executive, legislative and judicial departments of the government, and for the support of the public institutions and educational interests of the State, shall contain also a like itemized statement of all amounts appropriated by any preVious law to be paid annually out of the treasury, and such amounts so appropriated by preVious laws shall not be paid from the treasury unless they are embraced in the General Appropriation Act. " "As shown by its own terms, this section presupposes the existence of a General Appropriation Act, and its proper interpretation is that where such an Act has been passed, continuing appropriations are suspended unless they are embraced therein; but if no General Appropriation Act has been adopted, then the continuing appropriation statutes may be followed, so far as applicable, in the disbursement of State funds. State v. Staub, 61 Conn. 553 (23 Atl. 924); Jeffreys v. Huston, 23 Idaho, 372 (129 Pac. 1065) ; Palk v. Huston, 25 Idaho, 26 (135 Pac. 745) ; 59 C. J. 259. " Nance v. Daniel, supra. See also Irons v. Harrison, 185 Ga. 244. You further inquire: "And if the department should collect fees and from those fees shoUld pay its operating costs when there has been no appropriation from the General Assembly for that purpose, are those expenditures illegal?" I must assume from your question that you have in mind a case where the fees have been used by the department to pay its operating expenses without the proper officer of the department first paying the fees into the general treasury and withdrawing operating expenses upon properly executed warrants. Your attention is called to Section 92-3601 of the Code of 1933, which proVides 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 by 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. " Under Section 92-3604 of the Code, which was hereinabove quoted as an example of a continuing appropriation, it is further proVided that "None of the provisions of this section shall be construed to exempt or except any of the funds, taxes, moneys, fees, commissions, penalties, or other charges received, collected, or paid into any of the agencies named in this section from the requirement of Section 92-3601 that they shall all be paid into the State treasury. " Your attention is further called to Section 40-1102 of the Code of 1933, which proVides: "The costs and expenses of the maintenance and support of every de- partment, commission, bureau, and other branch or agency of the State government, shall be paid out of funds in the State treasury by warrant of the Governor drawn on appropriations duly made by the General Assembly." 304 However, it again becomes necessary to know the specific Act to which you have reference. Since the Code sections cited above are not constitutional provisions but are codifications of legislative enactments, and are general in their application, it is possible that an exception has been made by the particular Act to which you have reference. If, however, the particular Act does not by its terms constitute an exception to the general law set out in the Code sections hereinabove cited, then, in my opinion, the expenditure of fees by the department for operating expenses without first paying them into the general treasury and withdrawing operating expenses by properly executed warrants under a valid appropriation act would be, technically, an illegal or unauthorized expenditure. You further inquire as to whose duty it is to collect such expenditures back for the State if the same are illegal. Since you do not cite the Act to which you have reference, I can only quote you in this connection Code Section 89-817 of the Code of 1933, which provides as follows: "Jurisdiction to cite defaulting collecting officers, officers to hold public money, depositories and/or the sureties on their bonds, for an accounting, and to issue executions against them, is conferred and vested as follows: " (a) As to State House officials and their sureties, assistants and employees of any State House office, and their sureties, and depositories of the funds of the State or any of its bureaus, commissions, boards or departments, and their sureties, -in the Governor. "(b) As to other collecting officers, and officers who hold public money, so far as relates to taxes, revenues, or funds of the State or any of its bureaus, commissions, boards or departments-in the Comptroller General. "(c) In any case not covered by the foregoing provisions-in the Comptroller General. " In this connection, however, your attention is called to the Act approved January 3, 1938, creating the Department of Revenue and the office of State Revenue Commissioner (Acts of 1937-1938, pp. 77-103) . In my opinion, that Act vested in the State Revenue Commissioner the jurisdiction to cite defaulting officers and/or the sureties on their bonds which was formerly vested in the Comptroller General by the Code section hereinabove cited. Section 4 of that Act provides in part as follows: "The State Revenue Commissioner . . . is hereby vested with all the power and authority and required to perform all the duties relating to matters of petroleum inspection, taxation, and licenses heretofore vested in the Comptroller General (except licenses to insurance companies and their agents). And he is also vested with all the power and authority and required to perform all the duties relating to taxation and licenses heretofore vested in any State administrative officer or State department ... " Section 16 of the Act provides: "Nothing contained in this Act shall be deemed to affect or impair the powers and duties of the Comptroller General with respect to controlling of withdrawals from the treasury, service as Insurance Commissioner, or otherwise, in so far as the same do not concern taxation or licenses (other than licenses to insurance companies and their agents)." Section 8 of the Act provides in part: "The Revenue Commissioner is hereby authorized and empowered, subject to the provisions of law in such cases provided, to act in the name, and 305 in behalf, of the State of Georgia to institute any suit, action, or judicial proceeding to collect delinquent State taxes ... or to collect any claim or obligation of any person, including any public official, which may be due to the State. He is hereby authorized to act as relator in any and all such suits, actions, or judicial proceedings ... " Apropos the questions asked, should it be determined that a boara, bureau, agency or department of the State in the performance of duties imposed upon it by law has collected certain fees and has used so much of these fees as was essential to the necessary operation of the board, bureau, agency or department without first paying the fees into the State Treasury and withdrawing so much of the same as may be needed from the Treasury upon properly executed warrants drawn upon a specific appropriation, although there would be a technical unauthorized expenditure of funds, yet, the State would have received the benefit of the funds used for the operation of the said board, bureau, agency or department. Accordingly, I doubt if, in such a situation, there would be such an unauthorized expenditure as would support a recovery from the official disbursing the funds for the necessary operation of the board, bureau, agency or department, or from his bondsman. I think that the courts would hold that the State would have to show an actual loss before it would be authorized to recover and if the State has actually received the benefit and use of the funds in carrying on an authorized State function, it would seem that this fact would negative any actual loss on the part of the State. It is, therefore, my conclusion that while a technically unauthorized and illegal expenditure would have been made under the facts stated, yet there would be no such loss to the State as would support a recovery for an alleged loss which had not, in point of fact, been actually sustained by the State. GUARDIAN AND WARD-Appointment, how made. February 12, 1940 Hon. Homer A. Legg, Ordinary Lincolnton, Georgia In your recent letter you submit two questions, to-wit: 1. When a finding is made and returned by the Commission under Code Section 49-604 that a person under investigation is liable to have a guardian appointed, is the Ordinary required to receive an application from some one to be appointed guardian and run a citation four weeks for such appointment and go through the same formaltty as in applications in case of minors? 2. In a case where a person coming within one of the classes set forth in Code Section 49-60lis an inmate of the Milledgeville State Hospital, but at the time of his commitment to the Hospital he was a resident of Lincoln County, may a niece of said person who resides in Florida be made his guardian upon proper application to the Ordinary of Lincoln County, Georgia, although the wife of the inmate is living and resides in Florida? You pointed out in your letter that you were aware that under the law I could not render an official opinion upon these questions, but asked that I give you my personal views in the premises. With this understanding, I set forth hereinafter my personal views upon the questions which are not to be considered as official or binding on any one. Chapter 49-6 of the Code of Georgia of 1933 dealing with the power of the Ordinaries of the several counties to appoint guardians for insane persons, deaf and dumb persons when incapable of managing their estates, habitual drunk- 306 ards and persons imbecile from old age or other cause and incapable of managing their estates, is separate and apart from the Chapter of the Code dealing with guardians for minors. It is expressly provided under said Chapter 49-6 and under Sections 49-603 and 49-618 that guardians so appointed shall take the same oath and give a like bond as guardians of minors, and their powers, duties and liabilities shall be the same and shall be exercised under the same rules and regulations. All the provisions in this Code as to the settlements of guardians of minors, their resignation, letters of dismission, and distribution of the estates of deceased wards, shall apply to guardians appointed under thi;; Chapter. It must be observed that in the specifically enumerated application of the provisions of the law dealing with guardians of minors, under Chapter 49-6 there is absent any reference to application and citation. Under Chapter 49-1 of the Code relating to guardians of minors, Section 49-112 when referring to application and citation uses these words: "Every application to be appointed guardian of a minor under the age of 14. " On the other hand, under Chapter 49-6 dealing with guardians of persons other than minors, Section 49-605 which immediately follows the Section dealing with issuance of commission and provision for the return of said commission, reads as follows: "Upon such return finding the person to be as alleged in the petition, or within either of said classes, the ordinary shall appoint a guardian for him, or commit him to the Milledgeville State Hospital. " It must be noted that under Code Chapter 49-6 there is no specific provision for application other than that provided in Code Section 49-604 or for citation. As pointed out hereinabove, the two Code Sections under Chapter 49-6 specifically refer to provisions of the law relating to guardians of minors as applicable to guardians of persons of the classes mentioned in Chapter 49-6 and they fail to mention application or citation. For these reasons it is my personal view that since there is no specific statutory provision or reference to any other application or citation, the Ordinary would be authorized to appoint a guardian for any person within the classes mentioned in Code Section 49-601 without any other application than that provided in Code Section 49-604 and without any citation or publication thereof when the return of the commission is that the person under investigation is liable to have a guardian appointed. Next dealing with the second question, I assume that in the case you mention the inmate of the Milledgeville State Hospital is one of the classes of persons named in Code Section 49-601. I assume also that at the time of his commitment to the State Hospital the return of the commission was simply that he was subject to be committed to the Milledgeville State Hospital and there was no return by the commission at that time that he was liable to have a guardian appointed for him. I respectfully point out that Section 49-614 authorizes the Ordinaries to appoint guardians for insane persons without trial as provided for in Section 49-604, whenever it shall be made to appear to them that such insane person is in the Milledgeville State Hospital upon commitment thereto, as provided in Section 49-604, or when it shall be shown by the certificate of the superintendent of the Milledgeville State Hospital that such person is hopelessly insane and that it is necessary for such person to have a guardian to take charge of his property. Section 49-615 provides that guardians appointed under Section 49-614 shall be appointed under the same rules and regulations as govern the appointment of guardians for minor children, and the Ordinary of the county where such insane person lived at the time he was sent to the Hospital shall have jurisdiction of the appointment of such guardian. In such a case therefore, in ascertaining who may be appointed, two Sections of the Code are applicable, to-wit: Section 40-602. "The wife shall, in all cases be entitled to the preference in the appointment as guardian, and her bond and all acts as guardian shall be held and construed as if she were a feme sole. " Section 49-107. "Among collaterals applying for the guardianship, the nearest of kin by blood, if otherwise unobjectionable, shall be preferred. The Ordinary, liowever, in every case, may exercise his discretion according to the circumstances and, if necessary, grant the letters to a stranger in blood. " Since the wife is given the preference under Code Section 49-602, if she does not apply for the guardianship it would be well as a matter of practice to have her written waiver attached to the application and appointment of any other person who may be appointed guardian. Insofar as I have been able to ascertain, there is no express statutory provision either under the Chapter dealing with guardians of minors or under the Chapter dealing with guardians of the classes of persons named in Section 49601 relating to the residence of the guardian. In the absence of any specific requirement as to whether guardians shall be residents of the county or State where the appointment is made and where the ward resides, it appears to me that the Ordinary would not be prevented from appointing a nonresident if under the appointment made and the bond given, sufficient protection is provided therein to make the guardian amenable to the jurisdiction of the Ordinary appointing him as well as to protect in his Court of Ordinary the rights of any persons who might have claims against the guardian or ward and permit suit on the guardian's bond in the county where the guardianship appointment is made. In connection with executors, it is provided in Code Section 113-1206: "A citizen of another State or Territory of the United States may be nominated and act as executor or coexecutor of the will of a deceased citizen of Georgia, when such person shall be heir at law, of equal, greater, or sole interest, of the estate of the deceased, and will give the bond and comply with the requirements specified in cases of nonresident administrators. " While the above does not refer to guardians and can probably have no bearing on the law relating to guardians, it reveals the general policy that if a nonresident is appointed to such a trust there should be some provision made in the form of the bond given as will protect the jurisdiction of the Ordinary over the person assuming the trust as well as afford claimants a means of enforcing claims in the county in which the appointment is made. In this connection, I respectfully point out Section 113-1203 relating to administrators which reads as follows: "None but citizens of the United States, residing in this State, are quali- fied to be made administrators, except that whenever a citizen of another State or Territory of the United States shall be heir at law, of equal, greater, or sole interest, of any estate of a deceased citizen of Georgia, such nonresident citizen may act as administrator of such estate: Provided, such non- resident shall, before he is qualified to act, be required to give bond and good security in a sum equal to double the amount of such estate, payable to the ordinary of the county before whom he may qualify in this State. The securities shall be resident citizens of this State, and liable to be sued and proceeded against, in the first instance, for any default, liability, or mis- management on the part of such nonresident administrator, without join- ing such administrator in said suit." 308 My personal view, therefore, is if the wife in a written waiver relinquishes her right to be appointed guardian and there is no other person ahead of the niece in the matter of the right of appointment, the niece, although a resident of Florida, may be appointed guardian of the property of the inmate if she gives a joint and several bond in which the security is subject to separate suit in the jurisdiction of the county of the appointment for any liability under the bond, including any failure of the guardian to act as fully as a resident guardian would. As I wrote you some time ago, the questions you have presented have been difficult, especially for the reason that there do not seem to be any decisions of the Georgia Appellate Courts upon the specific questions which you have raised. The conclusion that I have reached therefore, is necessarilY. based on general principles as well as the statutory language. I realize that as to the first question you may have interpreted the answer different from my conclusion. You might be right and I might be wrong. Only the Appellate Courts of this State could actually decide the law upon the questions which you raise. I do not wish for you to feel that you are bound by what I have said herein because you have as much right to your view of these questions as I have, and I do not have such pride of this opinion that I would want you to follow it if you think otherwise. GUARDIAN AND WARD-Insane persons, how committed to State hospital. September 19, 1939 Dr. John W. Oden Superintendent Milledgeville State Hospital Milledgeville, Georgia Under date of September 12, 1939, the Honorable Joel H. Terrell of Warrenton, Georgia, asked me to give you an opinion as to whether commitments to the Milledgeville State Hospital can be made under Section 49-612 as well as under Section 49-604 of the 1933 Code. These Code Sections provide as follows: "49-604. Examination of capacity to manage estate. -Upon the petition of any person, on oath, setting forth that another is liable to have a guardian appointed (or is subject to be committed to the Milledgeville State Hospital) , and upon proof that 10 days' notice of such application has been given to the three nearest adult relatives of such person, or that there is no such relative within the State, or where such notice is waived in writing by such relatives, and affidavit is made by any one of such relatives or other person that such person is violently insane and is likely to do himself bodily injury, and where the truth of such affidavit has been verified in writing by a practicing physician appointed by the ordinary to examine such person, the ordinary shall issue a commission directed to three reputable persons, two of whom shall be practicing medical physicians in good standing, said physicians to be residents of the county, if that number reside therein, and the county attorney, or some attorney of the county appointed by said county attorney (or, in case of disqualification of the county attorney, an attorney appointed by the ordinary of the county), or the solicitor of any city court located in said county, and, if no county attorney or solicitor of said city court, the solicitor general of the circuit or some attorney of the county appointed by him, requiring them to examine by inspecting the per- 309 son for whom guardianship or commitment to the Hospital is sought, and to hear and examine witnesses on oath, if necessary, as to his condition and capacity to manage his estate, and to make return of such examination and inquiry to the said ordinary, specifying in such returns under which such classes they find said person to come. Such commission shall be sworn by any officer of this State, authorized by the laws of this State.to administer an oath, well and truly to execute such commission to the best of their skill and ability, which oath shall be returned with their verdict. No guardian shall be appointed for the estate of such person, nor shall such person be committed to the Hospital, without the unanimous verdict of such commission. (Act 1834, Cobb. 343. Act 1838, Cobb, 345. Acts 1855-6, p. 151; 1889, p. 70; 1897, p. 109; 1901, p. 38; 1915, p. 20; 1918, p. 162; 1931, p. 184.)" "49-612. Proceedings by third persons looking to confinement of ward.When there shall be no guardian for an insane person, or the guardian, on notice, shall refuse or fail to confine his ward, and any person shall make oath that such insane person, for public safety or other good and sufficient reason, should not longer be left at large, the ordinary, or in his absence from the county, or when he is unable to act for any cause, the judge of the superior court before whom said oath shall be made, shall issue a warrant as in criminal cases for the arrest of such insane person, to bring him before him on a day specified; and said ordinary, or in his absence from the county, or when he is unable to act for any cause, the judge of the superior court, on an investigation of the facts, may commit such insane person to the Milledgeville State Hospital, and, if necessary, cause him to be temporarily committed to jail until he can be removed to the Hospital, and the expense of such confinement and the proceedings shall be paid out of the estate of such insane person, if any, and if none, out of the county funds. The fees of the ordinaries of the several counties for making out commissions of lunacy and all other services connected therewith shall be $5; and the fees of sheriffs and bailiffs, for summoning juries and other services connected with cases of lunacy, shall be $3. (Act 1838, Cobb, 344. Acts 1866, p. 22; 1878-9, p. 77; 1894, p. 43.)" In the case of Dickson v. Hicks, 160 Ga. 487, the Supreme Court held that the two Code sections in question provide for a different class of subjects and are not, therefore, in conflict, citing Reagan v. Powell, 125 Ga. 89. Apparently, under these two decisions, Code Section 49-604 applies where the person sought to be committed is merely believed to be mentally unbalanced, though neither violent nor unable to look after his own immediate safety; whereas Code Section 49-612 applies to persons who are violently or helplessly insane, and provides a speedy mode of procedure for placing them beyond the power of doing injury, either to the public or to themselves. The Reagan case, supra, was decided in 1906, prior to the amendments now embodied in Code Section 49-604 with reference to an affidavit by a relative or other person that the subject is "violently insane and likely to do himself bodily injury". The case of Dickson v. Hicks, supra, was a habeas corpus proceeding, and the sole question necessary for determination was whether an insane person could be arrested and kept in jail pending her appeal to the Superior Court from a verdict and judgment in the ordinary's court committing her to the Georgia State Sanitarium. The habeas corpus was held to have been properly dismissed under and by virtue of Code Section 49-612. 310 Consequently, in my opinion, neither the Reagan case nor the Dickson case is a direct authority for the proposition that Code Section 49-612 affords a method by which persons can be committed to the Milledgeville State Hospital. My personal view is that, as between the two Code sections, commitments to the Milledgeville State Hospital should be made only under Code Section 49604. GUARDIAN AND WARD-Insane persons committed to State hospital must be citizens of this State. March 28, 1940 Dr. John W. Oden Superintendent Milledgeville State Hospital Milledgeville, Georgia I am pleased to acknowledge yours of recent date in which you state that you are informed that one Mr. George Fay Hooker left the State of Georgia two years ago, and that while he was in Iowa or some of the nearby states, he stole an automobile, was placed in jail, and later was sent to one of the institutions for the insane in Iowa. You further state that "the authorities are now making application for his admission to this institution through the Court of Ordinary of Fulton County." You request my opinion as to whether you would be justifiable in admitting him into the Milledgeville State Hospital under these circumstances. Section 35-227 of the Code provides: "Everyone sent to the Hospital from any county in this State must be shown, in the exemplification of proceedings, to be at the time strictly a citizen of this State, in terms of the law relating to citizenship." (Emphasis supplied.) Accordingly, if the exemplification of proceedings under which Mr. Hooker was committed to the Milledgeville State Hospital does not show that at said time he was "strictly a citizen of this State", you would have no authority to receive him into the hospital. GUARDIAN AND WARD-Insane persons, disposition of, on special pleas of insanity. July 11, 1940 Hon. John W. Oden, Superintendent Milledgeville State Hospital Milledgeville, Georgia This will acknowledge receipt of your letter of July 8th in which you state that shortly after Mr. W. 0. Fokes of Dooly County was diagnosed by the Milledgeville State Hospital as being not insane, be was returned home. Within a comparatively short while, having been indicted for assault with intent to murder, be filed a special plea of insanity and a verdict was found by the jury in favor of the plea. He was again passed upon by the medical staff of the Milledgeville State Hospital as being not insane, and you notified the Sheriff of Dooly County, requesting that he make arrangements for his removal. You inquire if it will be necessary for the Governor to issue a warrant, or order before Mr. Fokes can be removed from the Milledgeville State Hospital, or if it has become the duty of the Sheriff of Dooly County, after your notification to him, to come for Mr. Fokes. 311 Section 27-1502 of the Georgia Code of 1933 provides: "Whenever the plea of insanity is filed, it shall be the duty of the court to cause the issue on that plea to be first tried by a special jury, and if found to be true, the court shall order the defendant to be delivered to the superintendent of the Milledgeville State Hospital, there to remain until discharged in the manner prescribed by law. " The manner prescribed by law for the discharge of a person from the Milledgeville State Hospital after he has been delivered there by order of the court when a jury has found in favor of his plea of insanity, is set out in Section 271503, which reads as follows: "When a person who has been acquitted of a capital crime, on the ground of insanity, is committed to the Milledgeville State Hospital, he shall not be discharged therefrom, except by special Act of the legislature. If the crime is not capital, he shall be discharged by warrant or order from the Governor. If sentence is suspended on the ground of insanity, upon restoration to sanity, the superintendent shall certify the fact to the presiding judge of the court where he was convicted. " Section 27-1503 is almost identical with Section 35-240, the last clause of which you quote in your letter. These sections deal with three distinct classes of cases. The first is where a person who has been acquitted of a capital crime on the ground of insanity, is committed to the Milledgeville State Hospital, such person is not to be discharged therefrom except by special act of the legislature. The second class of cases is where a person has been acquitted of a crime which is not capital, on the ground of insanity and has been committed to the Milledgeville State Hospital. From the statement of facts given in your letter, Mr. Fokes' commitment would appear to come under this second classification. Such persons are not to be discharged except by warrant or order from the Governor. The third classification is where a person has been convicted but his sentence has been suspended on the ground of insanity and he has been committed to the Milledgeville State Hospital. Upon the restoration to sanity of a person coming within this final classification, the superintendent is required to certify the fact to the presiding judge of the court where such person was convicted. GUARDIAN AND WARD-Insane persons, upon discharge, may become charges on county if paupers. May 26, 1939 Honorable Walter C. Stevens Ordinary, Bibb County Macon, Georgia This will acknowledge yours of recent date requesting my opinion as to the obligation of the counties with respect to the custody and care of persons returned to the respective counties by the Milledgeville State Hospital authorities acting in accordance with the provisions of Section 35-206 of the Code of 1933. Section 35-206 of the Code of 1933 as amended by the Act of 1937, (Ga. L. 1937, page 355) provides: "The State Department of Public Welfare may, upon the certifying thereunto by the medical officer of the institution, discharge or remand to the county authorities whose duty it is made by law to provide for the paupers of the county from which he or she was sent, any patient in said Hospital, whose condition is such that no probability exists of his or her restora- 312 tion to full reason and sanity by medical ministrations thereto, and who is regarded harmless and inoffensive in spirit, and whose return to social life would reasonably involve no danger to the life of those with whom he or she would be associated. " In order to arrive at the true meaning of this section, it must be construed and correlated with certain other provisions of the law with reference to the admission of patients to the Milledgeville State Hospital, and their classification, as well as other general statutes which devolve the duty of caring for such persons upon their relatives out of their estates, or from family funds, and to the statutes prescribing the purposes for which a county may levy taxes. Section 35-204 of the Code clearly indicates that the State has assumed the responsibility of affording free care insofar as possible and subject to the other provisions of Chapter 35-2, to all resident citizens "who may be lunatics, idiots, epileptics or demented inebriates, and who are paupers. " This same section provides, however, "that no paralytics, epileptics, imbeciles, idiots, drug or alcoholic addicts or persons suffering from tubercular, venereal or other contagious diseases, whether paupers or not, who are harmless and inoffensive in spirit, and who, if unconfined, would reasonably involve no danger to the life or limb of those with whom they would be associated, shall be committed or admitted to said hospital. " (Emphasis supplied. ) Thus we find that, in the first instance, mental incompetents "who are harmless and inoffensive in spirit" and whose freedom from incarceration involves no danger to the other members of society are not eligible to be admitted to the Hospital, and, secondly we find that persons once properly committed to the Hospital, but who have subsequently become "harmless and inoffensive in spirit, and whose return to social life would reasonably involve no danger to the life of those with whom he or she would be associated" may be returned to the county authorities whose duty it is made by law to provide for the paupers of the county. Section 35-232 of the Code provides: "When a person shall have been adjudged afflicted with a malady requiring him to be committed to said Hospital, it shall be the duty of the court presiding at the trial to certify if said person be a pauper. He shall not be certified a pauper unless in whole or in part supported by the county, or the county is bound for his support under the law. If there shall be persons who by law are bound and able to support him, the names of such persons shall be given. If the person shall have means enough to support himself in part, the amount of such means shall be stated, and shall be paid toward his support. " Section 35-233 provides: "A certificate of pauperism shall entitle the person to be supported at the expense of the State. Those for whose support others are bound shall be furnished with suitable support by the State, and the expense shall be collected from such other persons by the State Department of Public Welfare." Section 35-234 provides: "If a patient committed as a pauper, or as of limited means, shall become entitled to an estate, said estate shall be bound for his support according to its value, and whoever shall hold it may be compelled to secure to the Hospital its proper charges or to turn over to the State Department of Public Welfare the property to be held for such purpose." 313 Section 35-223 provides for the classification of the inmates of the Hospital into three classes, to-wit: (1) Pay or pauper patients residents of this State. (2) Pay patients who are nonresidents. (3) Insane penitentiary convicts. From all of the foregoing provisions it is obvious that the legli.l responsi- bility of the State to "any patients in said Hospital" ends when the medical officer of the institution certifies to the State Department of Public Welfare (a) that the condition of such patient is such that no probability exists of his or her restoration to full reason and sanity by medical ministrations there- to, and (b) that he or she is regarded harmless and inoffensive in spirit, and (c) that his or her return to social life would reasonably involve no danger to the life of those with whom he or she would be associated. When the patient is discharged or remanded, pursuant to Section 35-206 to the county authorities charged by law to provide for the paupers of the county, the responsibility of the county then begins. If the patient discharged is a pauper, the county is bound for his or her support. Whether the discharged patient is a pauper within the contemplation of the statute charging the county with his or her support is to be determined by reference to .the records of the county, especially with reference to any proceedings taken under Chapter 23-22. If the returned patient has been adjudged a pauper by the ordinary in accordance with the provisions of Section 23-2203 of the Code, the county is bound for his support, if the father, mother or child of the pauper, if any, are not sufficiently able to support the pauper (Code Section 23-2302). If on the other hand, the discharged patient is not a pauper, then the county is not bound for his or her support, and although it is the duty of the county authorities to receive, at least temporarily, the custody of the person discharged from the Hospital-whether he be a pauper or not-where members of the family of the discharged person are found who are able to support him or her, the county should turn the discharged patient over to them or to the guardian of such person, and if he or she lias an estate sufficient for his or her support the county is not liable and cannot contribute to the support of such a person. In other words, the county has no authority to levy a tax to support persons who are not paupers, although they may be mentally incompetent, and especially is this true where the person in question has an estate which may be utilized in whole or in part for his or her support. As to the power of counties to levy taxes for the support of paupers, se.e Section 92-3715; see also Section 92-3701 (7) of the Georgia Code of 1933. GUARDIAN AND WARD-Insane persons, Ordinary's disqualification on account of relationship. February 28, 1940 Hon. J. V. Merritt Acting Ordinary of Forsyth County Cumming, Georgia I am pleased to acknowledge receipt of your letter of February 22, 1940, inquiring as to your authority, as Acting Ordinary of your county, to issue a. lunacy commission for a first cousin of yours. The Clerk of the Superior Court, while Acting Ordinary, is authorized under the law to perform any ministerial duties in connection with the office; and this 314 includes all of the powers of a Clerk appointed by the Ordinary, the Ordinaries of this State having authority to appoint Clerks. Section 24-1802 of the Code of 1933 provides: "Such appointed Clerk may do all acts the Ordinary coUld do not judicial in their nature. " (Emphasis supplied. ) So your question resolves itself into whether or not the issuing of a lunacy commission involves an act of a judicial nature or merely ministerial. If the act is to be construed as merely ministerial, there woUld be no question but what you would be authorized to issue the commission, regardless of the fact that you are related to the person for whom the commission is issued. On the other hand, if the act is to be construed as being judicial in its nature, you would have no authority under the law to issue the commission. In the event you did have the authority to perform an act of a judicial nature, your relationship to the person for whom the commission was issued would disqualify you from acting. I have my serious doubts as to whether or not the issuing of a lunacy commission is ministerial in its nature. I am rather inclined to the position that it is judicial in its nature. So I would suggest that, as a matter of precaution on your part, you avoid issuing the commission. GUARDIAN AND WARD-Insane persons, endorsement of checks. February 29, 1940 Dr. John W. Oden, Superintendent Milledgeville State Hospital MilledgeVille, Georgia I am pleased to acknowledge receipt of your letter of February 27, 1940, regarding the practice of relatives of patients sending checks to your Institution to be endorsed by the patient and returned to the relative. If a patient has any estate, it would be proper for the ordinary of the county of such patient's residence to appoint a guardian to handle the estate. In that event, the guardian would be the proper person to draw and endorse checks for his ward. A person who has been adjudicated insane coUld not, under the law, legally endorse a check made payable to his order for the reason that one who is non-compos mentis cannot perform any binding legal acts. GUARDIAN AND WARD-Insane persons restored to sanity and citizenship. July 31, 1940 Honorable J. Frank Powell Ordinary, Dooly County Vienna, Georgia I am pleased to acknowledge yours of the 26th instant in which you state that a young man of your county who was adjudged by a commission to be a lunatic and subject to be committed to the State Hospital has now returned to his home and is asking to be "restored to his citizenship. " You request me to give you some instructions along this line. You also request information as to the number of witnesses required to sign a birth certificate where the fact of such birth is to be established by proof with affidavits and refer me to Section 88-1204 of the Code. 315 Answering your first question, I am of the opinion that the person referred to in your letter should follow the procedure outlined in Code Sections 49-609 and 49-610. That is, he should file a petition with the ordinary of the county setting forth the fact that on a certain date he was previously adjudged insane and a guardian was appointed for him; that his sanity has been restored and that he is now capable of managing his own property and affairs; and praying that the guardianship should be revoked and that a judgment be entered declaring that he is now sane. With reference to the birth certificate, I beg to advise that I have communicated with Dr. Woolf, who is the Director of the Bureau of Vital Statistics of the State Department of Health, and he states that the form of "Application to Register a Birth" inclosed in your letter is the form which is used to register births .under the authority of Code Section 88-1209, and that two witnesses to the birth are required to sign the affidavit in such cases for the reason that other states will not recognize such certificates unless at least two witnesses do sign the affidavit. He further states that in most of the states two witnesses are required before any weight or validity will be given to a birth certificate, and that the various Bureaus of Vital Statistics throughout the country, through their national association, have adopted a standard form for such cases which require at least two witnesses. When births are registered within ten days after the date of birth, in accordance with the provision of .Code Section 88-1202, only one witness is required to sign the affidavit. If this explanation does not clear up the matter to your full.satisfaction, I would suggest that you communicate further with Dr. Woolf, care of the State Department of Health, Bureau of Vital Statistics, State Office Building, Atlanta, Georgia. GUARDIAN AND WARD-Insane persons, procedure to restore citizenship. August 21, 1940 Honorable J. Frank Powell Ordinary, Dooly County Vienna, Georgia I am pleased to acknowledge yours of the 17th instant with further reference to the procedure to be followed where a person who was formerly committed to the State Hospital for the Insane, but for whom no guardian was appointed, has returned to your county and wishes to have his citizenship restored. Other than the procedure outlined in Code Section 49-609 and 49-610, I know of no statutory procedure whereby a person who has once been committed to the State Hospital for the Insane may have his restoration to sanity adjudicated. Your letter brings to my attention the fact that there is apparently a hiatus in the law and that Code Section 49-609 should be amended so as to provide that any person for whom a guardian has been appointed, or who has been committed to the State Hospital for the Insane may avail himself of the procedure set out in these code sections. It may be that a person who was committed to the hospital without having a guardian appointed can apply to the Board of Registrars of your county to have his name placed on the Jist of qualified voters, and submit to said board a certified copy of his discharge from the hospital Then if any person or the registrars challenge his right to have his name placed on the list of registered voters being prepared by the registrars on account of 316 the previous adjudication of insanity, a hearing could be had upon the issue before the registrars and if sufficient facts in the form of affidavits were submitted to the registrars to satisfy their minds that said person was no longer insane, then they could place his name on the list. Other than this possible procedure, I know of no other way that the issue could be decided. Of course, it is very likely that the registrars have already completed their work of preparing a list of qualified voters for the general election to be held in November 1940 and it is now too late to attempt the procedure outlined above. If this is true then the party in question would have to wait until the registrars meet again to prepare some subsequent registration list to be used in an election by the people. HUSBAND AND WIFE-Marriage, ages of parties. June 1, 1940 Hon. Lanas Troxler Attorney at Law Marion Block Ocala, Florida This will acknowledge receipt of your letter of May 22nd in which you request me to advise you of the age at which a female person may marry Without the consent of her parents, as the same is provided in the Georgia Code. Section 53-102 of the Georgia Code of 1933 provides: "To be able to contract marriage, a person must be of sound mind; if a male, at least 17 years of age, and if a female, at least 14 years, and laboring under none of the following disabilities, viz: "1. Previous marriage undissolved. "2. Nearness of relationship by blood or marriage, as hereinafter explained. "3. Impotency. " Section 53-204 of the Code provides: "In cases where the parties applying for a license shall not have reached the age of 21 years, their ages to be proved to the ordinary as hereinafter provided, the ordinary immediately upon receiving the application, shall post in his office a notice giving the names and residences of the parties applying therefor and the date of the application; except that where the parents or guan;iian of the female appear in person before the ordinary and consent in writing to the issuance of the license, the posting may be dispensed With. " Section 53-207 of the Code provides: "The ordinary shall inquire as to the ages of all persons for whom marriage licenses are asked; and if there shall be any grounds of suspicion that the female is under the age of 18 years, the ordinary shall refuse to grant the license until the written consent of the parents or guardian, if any, controlling such minor, shall be produced and filed in his office. " 317 HUSBAND AND WIFE-Marriage, five days notice, when required. November 29, 1939 Ron. G. A. Garrett Ordinary, Walton County Monroe, Georgia I have your letter of November 22nd asking the following questions: 1. Does the proviso in Section 1 of the Act approved March 24, 1939 (Georgia Laws, 1939, pp. 221-223) authorize an Ordinary to issue a marriage license to parties over 18 years of age without posting the five-day notice of the applica- tion for such license? 2. How can an Ordinary collect his insolvent costs in highway traffic cases? 1. With reference to your first question, under Sections 53-204 through 53- 206 of the 1933 Code, the Ordinary is required to post the five-day notice of appli- cation for marriage license in all cases unless the Ordinary is convinced that both parties applying for such license are 21 years of age, or over, except where the parents or guardian of the female appear in person before the Ordinary and consent in writing to the issuance of the license. There is the further exception that in case of an emergency or extraordinary circumstance, the Ordinary may authorize the license to be issued at any time before the expiration of the five- day period. Section 1 of the Act approved March 24, 1939 (Georgia Laws, 1939, pp. 221- 223) provides as follows (page 223) : " 'Any ordinary who by himself or clerk shall fail to post in his office the required notice pertaining to the application, or who shall issue a license in violation of the time provision, or who shall knowingly grant a license without the required consent or without proper precaution in inquiring into the question of minority, or who shall issue a license for the marriage of a female to his knowledge domiciled in another county, shall forfeit the sum of $500 for every such act, to be recovered at the suit of the father or mother, if living, and if not father or mother, the guardian or legal repre- sentative of either of such contracting parties; provided that under no cir- cumstances shall more than one suit be maintained by the father or mother, guardian or legal representative of either of such contracting parties in connection with any one marriage; and provided further that no such action shall be brought prior to the expiration of sixty days from the date that such marriage becomes public and no sUit hereunder shall be maintained after the expiration of twelve months from date such marriage becomes public. A recovery shall be had against the offending ordinary and his bonds- men, and from such recovery a reasonable attorney's fee, to be fixed by the presiding judge trying the case, shall be paid to the attorney representing the person bringing the suit, and, after the payment of court costs, then one-third of the remainder of said recovery shall be paid to the person bringing the suit and the remaining two-thirds shall be paid to the county educational fund of the county of such ordinary's residence. Provided, that no recovery shall be had for any alleged violation involving marriages in which both parties are more than eighteen years of age'." (Emphasis sup- p~d) It is my opinion that the Act of 1939, supra, does not alter, modify or in any way affect the Code reqUirements heretofore mentioned with reference to posting notice of an application for a marriage license. The emphasized 318 proviso of the Act in question relates only to the right of recovery of the $500 penalty. 2. With reference to your second question, asking how an Ordinary can collect his insolvent costs in highway traffic cases: Section 2 of the Act approved February 16, 1938 (Georgia Laws, Extra Session, 1937-1938, page 558, at 559) confers jurisdiction on the Court of Ordinary to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Georgia State Highway Patrol Act of 1937 and other traffic laws of the State, in all counties in which there is no city or county court, provided the defendant waives a jury trial. Section 5 (page 560) of said Act of February 16,1938, supra, sets forth a schedule of costs to be applied in all cases disposed of under the Act, and provides that in the event a defendant demands a jury trial and is bound over to another court, the costs shall await the final disposition of the case. Section 7 (pages 560-561) of the same Act provides that in the event a fine is imposed and paid, the officers of court (where on fee basis) shall be first paid their costs arising in such case, and that after the payment of all costs, the remainder of such fine shall be paid into the County Treasury in the event the case is disposed of by the court of Ordinary. The Act is silent, however, about the collection of insolvent costs. While no provision for the collection of insolvent costs was made under any of the Highway Patrol acts, I think the Ordinary has a right to collect his insolvent costs in traffic cases out of the fines and forfeitures paid into the County Treasury in cases handled by or originating in the Court of Ordinary. I think it would probably be necessary, however, for the Ordinary to present his claim for such insolvent costs to the Judge of the Superior Court for approval and for an order of payment out of the fines and forfeitures received from traffic cases handled by or originating in the Court of Ordinary, as is required of officers generally under Section 27-2905 of the 1933 Code. Inasmuch as the law does not authorize me to render an official ruling except on matters connected With the business of the State, you will realize that the foregoing opinions are merely an expression of my personal views and are in no way binding upon anyone. They are given merely in an effort to help you in forming your own opinion about the matters involved. INDUSTRIAL RELATIONS-Employment agencies are subject to license tax. When branch agencies are taxable. Time of payment of license fees. September 9, 1940 Honorable BenT. Huiet Commissioner, Department of Labor I am pleased to acknowledge yours of the 5th instant, transmitted through Honorable Berry F. Holbrook, Secretary and Treasurer, requesting an opinion upon the folloWing questions which will be stated and answered in the order found in your letter. 1. May an employment agency which is complying With Section 92-507, Page 2249 of the 1933 State Code operate a branch office in the same County under the same license and bond? Answer. Code Section 92-507 provides: "All employment agencies or bureaus doing business in this State shall pay $50 for each county in which they have an office. " 319 This section must be construed in connection with Section 54-122 (f) of the Georgia Code Annotated which reads as follows: "In addition to such other duties and powers as may be conferred upon him by law, the Commissioner of Labor shall have the power, jurisdiction, and authority: " (f) To supervise the business of private employment agencies and employment intelligence bureaus and as frequently as may be necessary to examine into the condition of each such agency or bureau. The Commissioner shall require each agent to make application for license to do business, which application must be indorsed by two taxpayers in the county where such agency proposed to conduct business, said license to be granted by the Commissioner upon the payment to the State of such tax as may be charged, and the filing of a bond in the sum of $500 for the faithful performance of duty, said license to be renewed annually. The Commissioner shall require each agency to report to him once a month in writing, showing the names, addresses and number of persons for whom positions were secured, where secured, the kind of position, the pay of same, the amount of fee colltected and the amount still to be collected. Nothing in this paragraph shall authorize any employment agency or persons with such agency, or any employee thereof, to act as an emigrant agent. If any agent shall be found to be violating the law, it shall be the duty of the Commissioner immediately to proceed to have such person presented to the proper authorities for prosecution and to cancel the license of such agency to do business. " As I construe these sections, an employment agency or employment bureau is required to pay only one license fee of $50 "for each county in which they have an office" and should such an agency or bureau have more than one office in the same county, it would not be required to pay $50 for each place of business.. However, the language of Section 54-122 (f) "the Commissioner shall require each agent to make application for license to do business, etc.," and which refiuires "the filing of a bond in the sum of $500 for the faithful performance of duty," when properly construed, requires that each agent of an employment agency or bureau which has paid the $50 license fee imposed by Code Section 92-507 must apply to the Commissioner of Labor for a license to do business, which application must be indorsed by two taxpayers, and each such agent must also file a bond in the sum of $500 with the Commissioner of Labor. Thus, if an employment agency which had paid the $50 tax as required under Code Section 92-507 has, for example, three different offices in the same county, each in charge of a separate agent, each of these agents would have to apply to the Commissioner of Labor in the form prescribed by Section 54-122 (f) of the Georgia Code Annotated, each give a bond of $500 and each obtain a separate license from the Commissioner of Labor, but the agency itself would have to pay only one $50 tax to the State. 2. May an employment agency which is operating more than one division of service operate said divisions under different names, or would it be necessary to operate one as a branch of the other? Answer. I am not certain that I correctly understand your question. I am of the opinion, however, that where an employment agency pays the license fee or tax of $50 to the State, it is required to operate through its agents in the name under which it qualifies to do business in this State by the payment of said tax, and under the same name under which the various bonded agents representing it make application for their license to the Commissioner of Labor under Section 54-122 (f) of the Georgia Code Annotated. 320 3. May an employment agency legally operate ninety (90) days without first securing a license from the Department of Labor and furnishing the bond as required by law? Answer. Code Section 92-507 quoted above levying the tax on employment agencies is codified from Paragraph 52 of the General Tax Act of 1935 (Georgia Laws 1935, page 35) . Section 6 of this same General Tax Act, which section is codified as Section 92-2104 of the Georgia Code annotated, provides: "The taxes provided for in this law shall be paid in full at January first, or when business begins for the calendar year for which they are levied, and at January first annually thereafter; and, except where otherwise provided, said taxes shall be paid to the tax collectors of the counties where such vocations are carried on, at the time of commencing to do business. Before any person shall be authorized to open up or carry on said business, he shall go before the ordinary of the county in which he proposes to do business and register his name, the business he proposes to engage in and the place where it is to be conducted; and he shall then proceed to pay the tax to the collector, at or before the time of commencing to do business as hereinbefore provided; and it shall be the duty of said ordinary to immediately notify the tax collector of such registration, and at the end of each quarter to furnish the Comptroller General with a report of such special tax registration in his office. The ordinary is hereby authorized to collect a fee of $1 from each registrant. " It will be observed that this section requires the payment of the tax as an employment agency "at January first, or when business begins for the calendar year for which they are levied," and Section 92-9907 of the Georgia Code Annotated makes it a misdemeanor for any person to either fail to register with the ordinary, as required in Section 92-2104, or having registered failing to pay the special tax as therein required. It will be noted also that the Commissioner of Labor, under Section 54-122 (f), is not authorized to grant a license to an agent of an employment agency or bureau until "the payment to the State of such tax as may be charged." This means that a person who seeks a license to operate as an agent for an employment agency which has paid the tax levied in Code Section 92-507 must first satisfy the Commissioner of Labor that such tax has been. paid by the agency which he seeks to represent. Not until this tax has been paid by the agency can any employment agency legally operate in this State. There is no statute which gives such an agency a ninety day period of grace within which to secure a license from the Department of Labor and to furnish the bond as required by law. It may be that some persons have gained the impression that ninety days are allowed within which to pay this tax by virtue of the provisions of Section 92-2105 of the Georgia Code Annotated which reads: "Should any license, special, occupation, or sales tax imposed by this Title remain due and unpaid for 90 days from the due date thereof, the person, firm, or corporation liable therefor shall be subject to and shall pay a penalty of 10 per cent. of the tax imposed. " This statute, however, is not subject to the construction that it gives an employment agency subject to the payment of the tax ninety days within which to pay the same, the right to commence and continue in business for that period before paying said tax and qualifying its agents with the Commissioner of Labor. The Code Section last quoted is nothing more than a penalty provision and does not militate against the provisions of Section 92-2104 which require that taxes, such as those levied on employment agencies, must be paid either in full at January 1, or at the time of commencing to do business. 321 4. Has the Department of Labor a right to reqUire an employment agency to designate the newspaper advertisements as employment agency ads, or may they use the so-called blind system for advertisement? Answer. Here again I am not certain that I correctly understand your question. I am unable to find anything in the statute creating the Department of Labor or prescribing the powers and duties of the Commissioner of-Labor which authorizes the Department or the Commissioner to reqUire employment agencies to designate any newspaper advertisements as employment agency ads or which prohibit them from using the blind system for advertisement. Neither am I able to find any provision of law vesting the Commissioner of Labor or the Department of Labor with the power to prescribe rules and regUlations with reference to the operation of employment agencies or bureaus. The power of the Commissioner of Labor to make rules or regUlations seems to be limited to rUles and regulations in connection with the enforcement and administration of the Unemployment Compensation Acts. (See Chapter 54-6, Sections 54-631, 54-632, and 54-633, Georgia Code Annotated.) In my opinion, it is unfortunate that the General Assembly has not seen fit either by statute or by vesting the Commissioner of Labor with the authority to promulgate rules and regUlations controlling such matters to regUlate the practice of employment agencies with respect to newspaper advertising done by them under a blind system. If I have overlooked any statute which you may construe as conferring such authority upon you I shall appreciate you calling my attention to it and I shall be glad to reconsider the matter. As it stands now, I am unable to find such a statute. 5. Would a law regUlating the commission or fees to be charged by private employment agencies be constitutional? Answer. It is rather difficUlt to answer positively an academic question of this kind, and unless I had the language of a particUlar statute before me I coUld not, of course, definitely advise you as to its constitutionality. I think that the operation of an employment agency is a business affected with the public interest, and so involves the public welfare that the State could, through its General Assembly, enact statutes regUlating the amount of fees which could be charged by such agencies. I rather think that such a statute, properly drawn, introduced and passed and approved by the Governor woUld stand the test of constitutionality if brought before our Supreme Court. INDUSTRIAL RELATIONS-Work certificates for minor, how issued. May 8, 1940 Hon. J. 0. Allen, Superintendent Albany Public Schools Albany, Georgia I have your letter of May 3rd in which you state that you have recently received a letter from Hon. BenT. HUiet, Commissioner of Labor, and Dr. M. D. Collins, State Superintendent of Schools, suggesting that you look after the issUing of work certificates for minors of your community. You state that your Board of Education is of the opinion that this is not one of the Superintendent's duties. You further state that inasmuch as you have a fUll schedule of other duties, you desire an opinion as to whether or not you are required to perform the aforementioned services. Under the law governing the powers and duties of the Attorney General, I can only officially render an opinion to the Governor and heads of State de- 322 partments upon questions affecting the State. While I cannot render an official opinion upon your request, I shall endeavor to give you my personal view upon the matter mentioned with the hope that it may aid you in your problem. Chapter 54-3 of the 1933 Georgia Code is a codification of Acts of the General Assembly relating to the regulation of child labor. Code Section 54-301 provides that no child under the age of 14 years shall be employed by or permitted to work in or about any mill, factory, laundry, manufacturing establishment or workshop. Code Section 54-302 provides that no child between the ages of 14 and 16 shall be employed by or permitted to work in or about establishments or occupations named in Section 54-301 between the hours of 7 P. M. and 6 A. M. unless all the requirements of the compulsory education law shall have been complied with. Code Section 54-303 prohibits children under the age of 16 years from being employed in certain dangerous occupations which are named in said Section. Code Section 54-304 provides that no child between the ages of 14 and 16 shall be employed by or permitted to work in or about any of the establishments named in Section 54-301, unless and until a certificate showing the true age of such child and that said child is not less than 14 years of age and is physically fit to follow the employment sought to be obtained, shall be issued by the Superintendent of Schools (or by some member of his staff authorized by him in writing) in the county or city where said child resides. This Section provides in detail what the certificate shall contain. Code Section 54-306 makes it the duty of the Commissioner of Labor and his authorized assistants to see that the provisions of this law are enforced. It appears that the City of Albany has an independent school system. Even if I had the authority to interpret the duties of the Superintendent of an independent school system, it would be unnecessary to decide whether or not you could be compelled to perform the duty of issuing work certificates for minors in order to give you a practical answer to the problem which you have in mind. Without intimating whether or not the issuing of work certificates for minors is mandatory upon you, or whether or not you could be compelled to perform such aduty,I think the practical results of the question maybe summed up as given below. Under the law hereinabove stated, it would be impossible for an employer to employ children of the ages named and during the hours stated without a certificate issued by the Superintendent of Schools (or by some member of his staff authorized by him in writing) in the county or city where said child resides. If you and your Board of Education refuse to issue the certificate which is provided to be issued by the Superintendent of Schools or by some member of his staff authorized by him in writing, then it will perhaps result that the children of the City of Albany within the ages named in the law may be denied the right of employment. I do not intimate whether or not you could be compelled by mandamus to perform such a duty. INDUSTRIAL RELATIONS-Work certificates for minors. Duties of School Superintendents. May 14, 1940 Hon. J. 0. Allen, Superintendent Albany Public Schools Albany, Georgia I have your letter of May 9, 1940, in which you state that my letter of May 8th does not cover the questions in your mind with reference to your duties 323 under Section 54-304 of the 1933 Georgia Code relating to work certificates of children between the ages of 14 and 18 years. The section of the Code above mentioned in the first paragraph, in part provides as follows: "No child between the ages of 14 and 16 shall be employed by or permitted to work in or about any of the establishments named in Section 54-301, unless and until a certificate showing the true age of such child and that said child is not less than 14 years of age and is physically fit to follow the employ- ment sought to be obtained, shall be issued by the superintendent of schools (or by some member of his staff authorized by him in writing) in the county or city where said child resides. A like certificate shall be issued in cases of all children between the ages of 16 and 18. The certificates must show that the said child is fully 16 years of age to qualify said child to work between the hours of seven P. M. and six A. M. and to be employed in any of the occupations enumerated in Section 54-303. No employment certificate shall be issued to any child until he shall have submitted to the issuing officer:" The further provisions of that Code Section are attached hereto as Appendix A for your information. As pointed out in my previous letter, this Code Section provides such em- ployment certificates "shall be issued by the Superintendent of Schools (or by some member of his staff authorized by him in writing) in the county or city where said child resides." In my previous letter I stated this provision of the law, and I further stated that I did not give any opinion as to whether or not you could be compelled to perform this duty. In your letter of May 9th you state that you have been called on to furnish certificates for minors who are above the age of 16. The law provides that "a like certificate shall be issued in cases of all children between the ages of 16 and 18. " It is plain that you could not be called on to furnish certificates for minors of any ages except those between 14 and 18. Upon interviewing officials of the Labor Department, I find that they do not intend that you shall issue certifi- cates for minors above the age of 18. Briefly, the law simply provides that the child seeking the certificate shall furnish the issuing officer with three things, to-wit: 1. A statement from the employer that at the present time, if he were fur- nished with a certificate from the school superintendent as required by law, he could place the child at work, giving the character of employment, it being understood that the employer shall not undertake to employ the child for any specific length of time. 2. A showing satisfactory to the authority issuing such employment certifi cate that such child has attained the age specified and that such child is able to read and write simple sentences in the English language. 3. One of the following evidences of age, showing such child to have attained the age of 14 years, shall be required in the order herein designated: Following the above is set out in the Code Section and in the Appendix hereto attached, the four different methods whereby the child may show his correct age. It is encumbent upon the child seeking the employment to furnish the issuing officer the information as to his age in the manner set out by one of the methods in said Code Section. Until such child furnishes that information, there is no duty encumbent upon the issuing officer to issue the certificate. If the child furnishes the information as to his age together with the employer's certificate, then it is encumbent on the superintendent of schools or some member of his staff designated by him in writing to further obtain a showing 324 satisfactory to him that the child is able to read and write simple sentences in the English language. The law does not limit the issuance of the certificates to those children only who have attended the particular school, but it provides that the minor within the ages specified in Chapter 54-3 of the Code shall apply to the superintendent of schools or some member of his staff authorized by him in writing in the county or city where such child resides for such certificate. As pointed out in my previous letter, if a minor cannot obtain the certificate in the manner set out by law, the result will perhaps be that the minor will be denied employment. I again repeat the statement in my letter of May 8th that I have no authority to furnish an official opinion to you upon the questions presented. I have undertaken simply to state the law and leave the matter to you as to whether you will or will not issue the certificates. APPENDIX "A" (1) A statement from the employer that at the present time, if he were furnished with a certificate from the school superintendent as reqUired by law, he could place the child at work, giving the character of employment, it being understood that the employer shall not undertake to employ the child for any specific length of time. (2) A showing satisfactory to the authority issuing such employment certificate that such child has attained the age specified and that such child is able to read and write simple sentences in the English language. One of the following evidences of age, showing such child to have attained the age of 14 years, shall be required in the order herein designated: (a) A birth certificate or duly attested transcript thereof issued by the State Board of Health or officer charged with the duty of recording births. (b) A baptismal certificate or transcript of the record of baptism duly certified, showing the date of birth and place of baptism of child. (c) A bona fide contemporary record of the date of the child's birth comprising a part of the family record of births in the Bible, or other documentary evidence satisfactory to the issuing officer, such as a certificate of arrival in the United States issued by the United States immigration officers and showing the age of the child, or a life insurance policy: Provided, that such other satisfactory documentary evidence shall have been in existence at least one year, and in case of life insurance policy at least four years: and Provided, further, that a school record or a school census record or a parent's, guardian's or custodian's affidavit or other statement of age shall not be accepted except as specified in the succeeding paragraph. (d) A certificate signed by a public health physician or public school physician, or, if neither of such physicians is available, a certificate from a physician designated by the issuing officer, stating, in his opinion, the physical age of the child. Such certificate shall show the height and weight of the child and other evidence of physical age revealed by the physician's examination or upon which the opinion of the physician is based. A parent's, guardian's, or custodian's signed statement as to the age of the child, and a record of age as given on the register of the school first attended by the child, or in any school census, if obtainable, shall be submitted with the physician's certificate showing physical age. No certificate shall be issued if the physician's certificate of physical age or the parent's statement or the register of the school first attended or the school census shall show the child to be under 14 years of age. 325 The evidence of age stated in paragraph (a) shall be required in preference to that specified in any subsequent paragraph, and evidence of age permitted by any later paragraph shall not be accepted unless there shall be received evidence that the proof of age required by the preceding paragraph or paragraphs cannot be obtained. Upon the termination of the employment of any child between 14 and 16 years of age, the employer knowing of such termination, the employer shall return within five days the employment certificate to the authority issuing same, and thereafter a new certificate shall be issued only upon presentation by the child of a new statement for employment. If the employer shall have no knowledge of the child's having terminated employment, but the child shall have failed to appear for work during the period of 30 days, the employer shall then return the certificate to the authority issuing same. The certificate mentioned in the foregoing paragraph shall state the full name, date and place of birth of the child, with the name and address of the parent, guardian, or person sustaining the parental relationship to such child, and that the child has appeared before the officer, and the evidence of age required herein. Blank forms of these certificates shall be furnished by the Commissioner of Commerce and Labor to the superintendents of schools in the respective cities and counties. A duplicate copy of each certificate shall be filed with the Commissioner of Commerce and Labor within four days from its issuance. The Commissioner of Commerce and Labor may, at any time, revoke any certificate if, in his judgment, the certificate was improperly issued. He is authorized to investigate the true age of any child employed, hear evidence, and require the production of relevant books or documents. If the certificate shall be revoked, the then employer shall be notified, and said child shall not thereafter be employed or' permitted to labor until a new certificate shall have been legally obtained." INDUSTRIAL RELATIONS-Commissioner of Labor has power to abolish a position not created by law. May 13, 1939 Honorable E. D. Rivers, Governor This will acknowledge your letter of May 9, 1939, and the file attached thereto in connection with an order promulgated on April 29, 1939, by Honorable Ben T. Huiet, Commissioner of Labor, in which said order the Commissioner of Labor attempted to abolish and discontinue the position of "Executive Director" of the Bureau of Unemployment Compensation of the Department of Labor. My opinion is requested as to whether Commissioner Huiet can legally abolish this position and whether he can assign the duties and functions formerly exercised by the "Executive Director" of the Bureau of Unemployment Compensation to the "Director" of the Bureau of Unemployment Compensation of the Department of Labor. The order promulgated by Commissioner Huiet on Apri129, 1939, is as follows: "The Department of Labor of Georgia Offices of the Commissioner. It appearing that heretofore the Commissioner of the Department of Labor of Georgia, acting under authority contained in Section 11 (d) of the Unemployment Compensation Law of Georgia (Acts 1937, p. 806) classified and set up in the Bureau of Unemployment Compensation of the Depart'ment of Labor of Georgia the position of Executive Director of the Bureau of Unemployment Compensation; and 326 It further appearing that Section 10 (a) of said Unemployment Compensation Law creates the office of Director of the Bureau of Unemployment Compensation and that, to effect economies in the administration of the affairs of the Department, it would be in the public interest to abolish and discontinue the position of Executive Director of the Bureau of Unemployment Compensation and to assign all of the duties heretofore assigned to that position, and to the incumbent thereof, to the Director of the Bureau of Unemployment Compensation. ''It iS' therefore, ordered: 'Effective this date, the position of Executive Director of the Bureau of Unemployment Compensation in the Department of Labor of Georgia be, and the same is, abolished and discontinued. And it is ordered further: Effective this date, all of the duties and functions heretofore assigned to the Executive Director of the Bureau of Unemployment Compensation of the Department of Labor of Georgia are hereby assigned to the Director of the Bureau of Unemployment Compensation of the Department of Labor of Georgia, until further order. Witness my hand and official signature and the seal of the Department of Labor of Georgia this April 29th, 1939, A. D. Signed: BenT. Huiet Ben T. Huiet, Commissioner Department of Labor of Georgia. SEAL Distribution: The Governor The Executive Director The Director The Chief Accountant The Social Security Board. " Upon a careful examination of the Act creating the Department of Labor (Ga. L. 1937, p. 231'l-244) and upon' a careful examination of the Unemployment Compensation Act (Ga. L. 1937, p. 806-849), I am unable to find any provision of law which creates an office designated as "Executive Director" of the Bureau of Unemployment Compensation of the Department of Labor. The Courts have long recognized the principle that every public official has the inherent right to abolish positions of state employees in departments under his control for reasons of economy where such positions are not created by statute. Accordingly, I am of the opinion that the Commissioner of Labor did not exceed his authority in promulgating the order of April 29, 1939, supra, abolishing the position of "Executive Director" of the Bureau of Unemployment Compensation of the Department of Labor and assigning the duties and functions previously exercised by the "Executive Director" to the "Director" of the Bureau of Unemployment Compensation of the Department of Labor of Georgia. If, as a matter of fact, Honorable L. P. James was not "Executive Director" of the Bureau of Unemployment Compensation he is not and could not be affected by the said order of Commissioner Huiet. If on the other hand, as a matter of fact, Honorable L. P. James was "Executive Director" of the Bureau of Unemployment Compensation he is affected by Commissioner Huiet's order in that the position of "Executive Director" has been effectually abolished. 327 INDUSTRIAL RELATIONS-Commissioner of Labor cannot abolish a position created by law. May 16, 1939 Hon. E. D. Rivers, Governor I have your letter of May 15th in which you make further inquiry concerning the Huiet-James controversy in the State Department of Labor. You ask my opinion as to whether or not, under the law, the order of Hon. Ben T. Huiet, Commissioner of Labor of the State of Georgia, dated April 29, 1939, has the effect of severing from the Department of Labor the office of "Director of the Bureau of Unemployment Compensation", which said office is claimed by the said James under and by virtue of three orders of former Commissioner of Labor, Hon. T. E. Whitaker, approved by the Governor, the first dated August 3, 1937, the second dated September 7, 1938.. and the third undated. The first two of the aforesaid orders signed by the former Commissioner of Labor refer to Hon. L. P. James as the appointed "Director" of the Bureau of Unemployment Compensation, but in the latter portion of each of these orders the following language is used, to wit: "The Director of the Bureau in some instances has been, is, and will be referred to as Executive Director, and it is understood that wherever said title is used, it shall have reference to the Director and vice versa." The third of the aforesaid orders of the former Conimissioner of Labor pro- viding for merit regulations places the "Director of the Bureau, who is referred to as Executive Director, the Director of the Unemployment Division and the Legal Counsel" in the classified service. The office of "Director" of the Bureau of Unemployment Compensation was created by the Unemployment Compensation Act (Georgia Laws 1937, pages 806-848, Section 10 (a)). No position designated as "Executive Director" was created under the said Act or any other law with which I am familiar. You state in your letter to me of May 15, 1939, that "the record discloses that Hon. L. P. James was appointed 'Director' of the Bureau of Unemployment Compensation". If Hon. L. P. James was actually appointed "Director" of the . Bureau of Unemployment Compensation the language used in the said orders referring to his position as "Executive Director" would not in my opinion divest his appointment as "Director" of the Bureau of Unemployment Compensation. A later order merely referring to "Executive Director" would not affect the office of "Director" of the Bureau of Unemployment Compensation. While an order of Hon. Ben T. Huiet might effectually abolish a position not created by the Unemployment Compensation Act, such as "Executive Director", if a position by that designation existed, it is my opinion that the order of Commissioner Huiet does not abolish the office of "Director" of the Bureau of Unemployment Compensation. As a matter of fact, Commissioner Huiet's order of April29, 1939 does not purport to abolish the office of "Director" of the Bureau of Unemployment Compensation in the Department of Labor. INDUSTRIAL RELATIONS-Commissioner of Labor has authority to appoint Appeals Referees. May 30, 1939 Honorable BenT. Huiet Commissioner of Labor This will acknowledge yours of the 22d instant directing my attention to section 6, subsection (d) and Section 11, subsection (d) of the Unemployment 328 Compensation Law (Georgia Laws 1937, pages 816-826; Georgia Laws Extra Session 1937-38, page 367), and requesting my opinion as to whether these provisions of the law place the authority to appoint Appeal referees in the Commissioner of Labor or in the Board of Review. These sections provide: "6 (d) Appeal Tribunals. To hear and decide appealed claims, the board or review shall appoint one or more impartial appeal tribunals. Each such tribunal shall consist of either a referee selected in accordance with section 11 (d) of this Act or a body consisting of three members one of whom shall be a referee, who shall serve as chairman, one of whom shall be a representative of employers, and the other of whom shall be a representative of employees; Each of the latter two members may be selected without regard to section 11 (d) of this Act, shall serve at the pleasure of the board of review and be paid a fee of not more than $10. 00 per day of active service on such tribunal plus necessary expenses. No person shall participate on behalf of the Commissioner or the board of review in any case in which he is an interested party. The board of review may designate alternates to serve in the absence or disqualification of any member of an appeal tribunal. The chairman shall act alone in the absence or disqualification of any other member and his alternates. In no case shall the hearings proceed unless the chairman of the appeal tribunal is present. The Commissioner shall provide the board of review and such appeal tribunals with proper facilities and assistants for the execution of their functions. " (Emphasis supplied.) "11 (d). Personnel. Subject to other provisions of this Act, the Commissioner is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of his duties under this Act. The Commissioner may delegate to any such person such power and authority as he deems reasonable and proper for the effective administration of this Act, and may in his discretion bond any persons handling moneys or signing checks hereunder. The Commissioner shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the positions so classified. He sball provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and, except for temporary appointments of not to exceed six months in duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations. No person who is an officer or committee member of any political party organization or who holds or is a candidate for any elective public office shall be appointed or employed under this Act. The Commissioner shall establish and enforce fair and reasonable regulations for appointments, promotions and demotions based upon ratings of efficiency and fitness and for terminations for cause." Analyzing the provisions of Section 6 (d) we find that the Board of Appeals has the authority to appoint one or more impartial appeal tribunals, each of which may consist of either a referee selected in accordance with section 11 (d) or a tribunal of three members consisting of the referee selected in accordance with Section 11 (d), and two members selected without regard to section 11 (d). In determining the power of the Board of Review witb respect to the appointment or selection of appeal tribunals, one must necessarily construe section 6 (d) in pari materia with section 11 (d). In construing these sections together one must apply certain well known rules of construction. The two sec- 329 tions must be so construed, if possible, as to harmonize any conflicting or inconsistent provisions of the two sections. Full effect must be given to the legislative intent. The parts of the statutes above quoted must be construed with reference to the whole system and scheme of the statute of which it forms a part. As was said by Justice Jenkins in the case of State Revenue Commissioner v. Alexander, 54 Ga. App. 295,' 296, "It has been ruled that every part of a statute must be viewed in connection with the whole, so as to harmonize all of its parts if practicable, and give a sensible and intelligent effect to each, for it is not to be presumed that the legislature intended any part of the statute to be without meaning (citing many cases) ; that the courts in construing a statute can neither add to or take away from it (citing cases) ; that where a general term in one part of a statute is inconsistent with a more specific provision in another part, the latter must govern (Kaiser v. Doyle, 81 Ga. App. 30, 33) ; and that judicial interpretation is excluded where none is needed in giving effect to plain and unambiguous language (Citing cases)." It has also been held that the legislative history of an act may be resorted to and give weight in determining the proper construction of a statute. Barker v. The State, 117 Ga. 488, Acree v. The State, 122 Ga. 144, 147. In the construction of statutes, the courts have also applied the rule that where two parts of a single statute conflict, the latest in position is to be given preference as it is presumed to be the last expression of the legislative will. Lamar v. Allen, 103 Ga. 158, Gilbert v. Railroad Company, 104 Ga. 412. Keeping these cardinal rules and principles of statutory construction in mind and applying the same to the question under consideration, I am of the opinion that, in order to give any effect at all to that portion of section 6 (d) which requires that the referee shall be selected "in accordance with section 11 (d)" of the Unemployment Compensation Law, it must be held that the referee is to be appointed by the Commissioner of Labor, rather than by the Board of Review. The Board of Review has no power to appoint a referee, other than the power given in section 6 (d), which section specifically limits or restricts said appointive power to the appointment of such referee "in accordance with section 11 (d)". Under section 11 (d) all appointments are made by the Commissioner. The Board of Review is not named or referred to in section 11 (d) and there is no language which, by necessary implication, may be said to relate to the appointment of a referee by the Board of Review contained therein. It is obvious, therefore, that "appointments" by the Board of Review of an appeal referee or appeal referees must be made from that group of "officers, accountants, attorneys, experts and other persons" previously appointed by the Commissioner of Labor under the other provisions of the act in the performance of his duties of administering the Unemployment Compensation Law. The Board of Review has no authority to appoint or designate as a re"feree any person who has not been previously appointed or designated by the Commissioner of Labor, acting under section 11 (d), as such an officer. This is true for the reason that only the Commissioner of Labor has the authority to prescribe the duty and power of such a referee, or to fix his compensation, subject to fair and reasonable regulations for appointment, promotion and demotion based upon ratings of efficiency and fitness. It is true that the Board of Review has the authority to appoint two of the members of any appeal tribunal which consists of three members, and that the 330 appointment by the Board of Review of these two members (other than the referee) may be made without regard to section 11 (d) of the act. It is doubtful, however, that until section 6 (d) was amended by the act approved January 25, 1938 (Georgia Laws Extra Session 1937-38, page 367) that the Board of Review was authorized to select even the two members (other than the referee) composing an appeal tribunal except in accordance with section 11 (d). As a matter of legislative history, the amendment first referred to is qUite significant. At this point it is helpful to point out the significant changes made in section 6 (d) of the original act by the amendment at the extraordinary session. In the original act it was provided that the referee was to be a "salaried referee". The amendment omitted the word "salaried", and the only logical meaning which may be attributed to this omission is that the legislature intended to leave it to the discretion of the Commissioner of Labor under the broad power conferred upon him under section 11 (d) to "fix the compensation" of such officer, either upon a salary basis or a per diem basis. (See Section 11 (d)). (Emphasis supplied.) The next material change made in section 6 (d) by the amendment was to vest the Board of Review with the specific authority to select two members of any three member appeal tribunal "without regard to section 11 (d)" of the act. In other words, in the original statute it was provided, with reference to the members of an appeal tribunal which the Board of Review is authorized to appoint: "Each of the latter two members shall serve at the pleasure of the Board of Review and be paid a fee of not more than $10. 00 per day of active service on such tribunal plus necessary expenses. " In the act as now amended, with the language which was added emphasized, it is provided: "Each of the latter two members may be selected without regard to section 11 (d) of this act, shall serve at the pleasure of the Board of Review and be paid a fee of not more than $10 per day of active service on such tribunal plus necessary expenses." (Emphasis supplied.) As referred to above, the fact that the legislature found it necessary to amend the statute in order to vest the Board of Review with power to appoint the representative of employers and the representative of employees upon an appeal tribunal without regard to the provisions of section 11 (d), strongly indicates to my mind that until this amendment was adopted even these two members were required to be appointed in accordance with section 11 (d) of the act. It is further significant that although the legislature amended section 6 (d) so as to provide that two members of an appeal tribunal might be selected by the Board of Review without regard to section 11 (d), it left unchanged the provisions of the statute with reference to the selection of the "referee". Had the legislature intended to change the method of selection originally prescribed it could have easily done so while amendments were being made to the very section dealing with this subject. The fact that the legislature changed the statute with regard to the selection of two members of an appeal tribunal (the employer and employee representatives) and left unchanged the method of selection of the "referee" on appeal tribunals is highly persuasive, if not decisive, of the question under consideration. In summary, then, it might be said that the amendment to section 6 (d) manifests a legislative intent to broaden the power of the Commissioner of Labor, on the one hand, with reference to the payment of compensation to the referee appointed by him; and, on the other hand, to broaden the power of the Board of Review with reference to the appointment of 331 members of appeal tribunals (other than the referee). As a result of the amend- ment, the Commissioner may now compensate an appeal referee upon a per diem basis, rather than upon a salary basis, and the Board of Review may appoint an employer and employee representative on an appeal tribunal without regard to section 11 (d). . I am, therefore, of the very definite opinion that the Board of Review is authorized to appoint "without regard to section 11 (d)" both the employer and employee representatives upon an appeal tribunal; but as to the appeal "referee" appointments must be made in accordance with section 11 (d) -that is, by the Commissioner of Labor under a merit system-and the appointment of an appeal "referee" by the Board of Review of any person not first appointed by the Commissioner under the merit system applicable to the position would not be valid. As applied to the appeal "referee" the power of appointment, if any, resting in the Board of Review is limited to a mere "designation" of the person or persons previously selected by the Commissioner of Labor under sec- tion 11 (d) as "referees" to act either as a one member tribunal or as the chair- man of a three member tribunal. Giving this construction to these sections of the act, they are consistent and harmonious and each part of the statute is given meaning; but if it is held that the Board of Review may appoint an appeal referee that portion of the statute which requires that an appeal referee shall be "selected in accordance with sec- tion 11 (d) of this act" is entirely ignored, for only the Commissioner can select persons under section 11 (d). If it were held that the Commissioner of Labor does not have the power to appoint the appeal referee such a construction would bring about a further inconsistency in the statute, for it is contemplated that upon each appeal tribunal the Commissioner of Labor and the Board of Review shall be represented. This idea is expressed in the language of section 6 (d) as follows: "No person shall participate on behalf of the Commissioner or the Board of Review in any case in which he is an interested party. " (Emphasis sup- plied.) In order not to strip this last quoted language of all logical or reasonable mean- ing it is necessary to hold that the Commissioner of Labor has the authority, under section 11 (d) of the act, to appoint appeals referees. This opinion must be read in the light of my previous opinion under date of March 13, 1939, to Governor E. D. Rivers, copy of which is attached hereto. INDUSTRIAL RELATIONS-Unemployment Compensation Department is a separate administrative unit unless impractical to administer as such. April 10, 1940 Hon. Ben T. Hulet Commissioner of Labor I am pleased to acknowledge yours of the fourth instant in which you state that you have an employee in the Bureau of Unemployment Compensation in the Department of Labor who is receiving the minimum salary, and that you desire that he assist with some work in the Inspection Department and in other work in connection with the Department of Labor outside of the business of the Bureau of Unemployment Compensation; that you recompense this employee for services performed in the Department of Labor from the State money for the work performed by him for the Department of Labor and carry him on the 332 Department of Labor payroll in addition the salary of the Bureau of Unemployment Compensation. You request my opinion as to the legality of the above procedure. Under the Unemployment Compensation law, as now codified in Chapter 54-601 of the Georgia Code Annotated, two coordinate divisions are established in the Bureau of Unemployment Compensation: The Georgia State Employment Service Division and the Unemployment Compensation Division. Section 54-629 of the Code provides in part: "Each division shall be a separate administrative unit with respect to personnel, budget, and duties except in so far as the Commissioner may find that such separation is impracticable. (Emphasis supplied. ) Section 54-631 vests the Commissioner with the power to employ such persons, make such expenditures, and take such other action as he deems necessary or suitable to the end of administering the Unemployment Compensation Act. Section 54-634 of the Georgia Code Annotated provides in part: "Subject to other provisions of this Chapter, the Commissioner is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, . . . and other persons as may be necessary in the performance of his duties under this Chapter. The Commissioner may delegate to any such person such power and authority as he deems reasonable and proper for the effective administration of this Chapter. " Since the statute above quoted (Section 54-629) requires that the personnel, budget and duties of employees in the Unemployment Compensation Division "shall be separate. . . except in so far as the Commissioner may find that such separation is impracticable", I am of the opinion that the procedure outlined in your letter would not be legal unless you have found that it is impracticable to administer the Unemployment Compensation Division with personnel which are paid a minimum salary by said Division, and have found that it is necessary to supplement the salary and the duties of such persons employed by said Division with other salary and other duties. The word "separate" as generally used in our laws carries a meaning which is opposed to "joint", and implies division from, disc.onnection with, or aloofness. Therefore, unless it has been found to be impracticable by you to maintain this division or separation of personnel, duties, etc., of employees on the payroll of the Unemployment Compensation Bureau, you would not be authorized to supplement the salary of the employee from the funds of some other department or division of the Department of Labor, and would not be authorized to impose additional duties to be performed for and on behalf of another department, division or bureau of the Department of Labor. If you find it impracticable to operate the said divisions as separate administrative units, then the procedure you desire to follow would be permissible. INDUSTRIAL RELATIONS-Unemployment compensation, exemption of certain positions from merit system. October 18, 1940 Hon. BenT. Huiet, Commissioner Department of Labor This will acknowledge receipt of your letter of October 8th in which you inquire if there is any inhibition in the Georgia statute to prevent you from exempting from the merit system regulations those positions which have been 333 exempted by the regulations issued by the Social Security Board so that the classification of positions and merit system requirements in Georgia may conform to the policies of the Social Security Board and similar Civil Service schemes of force in Federal agencies and other agencies throughout the country. You state that acting under Section 11 (d) of the Act of 1937 you have established a system of personnel administration wherein rules and regulations have been adopted to govern the appointment, promotion and dismissal of personnel and their general government as employees of the Bureau of Unemployment Compensation. The method which you have chosen to carry out the mandate of the Act with respect to selection and government of personnel has been fully approved by the Social Security Board and the classification of positions which you have made has likewise been fully approved. You further state, however, that the Social Security Board has issued certain regulations under which the following positions are exempt from the particular system, or scheme, of merit regulations which you have adopted: A. Members of Unemployment Compensation Boards of Review and Appeals Tribunals representing employee and employer interests; B. Director of the Bureau; C. Members of the Merit Council and the Advisory Council; D. Attorneys serving as legal counsel; E. Members of other Boards appointed by the Commissioners; F. Confidential secretaries to any of the foregoing exempted officials; G. Messengers; H. Porters. You state that it is your desire, if you may do so under the provisions of the Georgia statute, to make the same exemptions that are permitted by the minimum requirements of the Social Security Board. Section 11 (k) of the Act approved March 29, 1937 (Acts of 1937, pages 806849) provides in part as follows: "In the administration of this Act, the Commissioner shall cooperate to the fullest extent consistent with the provisions of this Act, with the Social Security Board, created by the Social Security Act, approved August 14, 1935, as amended; . . . and shall comply with the regulations prescribed by the Social Security Board governing the expenditures of such sums as may be allotted and paid to this State under Title 3 of the Social Security Act for the purpose of assisting in the administration of this Act. " You will note from the foregoing provision that while it is the duty of the Commissioner in the administration of the Act to cooperate to the fullest extent with the Social Security Board, such cooperation must be consistent with the provisions of the Georgia Act. Section 11 (d) of the Act provides in part as follows: "Personnel. Subject to other provisions of this Act, the Commissioner is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of his duties under this Act. The Commissioner may delegate to any such person such power and authority as he deems reasonable and proper for the effective administration of this Act, and may in his discretion bond any person handling monies or signing checks hereunder. The Commissioner shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the positions so classified. He shall provide for the holding of examina- 334 tions to determine the qualification of applicants for the position so classified, and, except for temporary appointments of not to exceed six months in duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations . . . The Commissioner shall establish and enforce fair and reasonable regulations for appointments, promotions and demotions based upon ratings of efficiency and fitness and terminations for cause. " It will be noted that the provisions of the foregoing section requiring the Commissioner to classify positions under the Act and to establish salary schedules and minimum personnel standards for the positions so classified and requiring him to provide for the holding of examinations to determine the qualifications of applicants for the positions so classified are mandatory, and Section 11 (d) does not except any positions from the requirements of that section except temporary appointments of not to exceed six months in duration. Thus it would appear from Section 11 (d) standing alone that all positions under the Act are to be classified, minimum personnel standards established for the positions so classified, and examinations held to determine the qualifications of applicants for the positions so classified and personnel to be appointed on the basis of efficiency and fitness as determined in such examinations. However, Section 11 (d), as specifically stated in that section, is subject to other provisions of the Act. Under the provisions of Section 10 (b) of the Act the Bureau of Unemployment Compensation has two coordinate divisions; the Georgia State Employment Service Division and the Unemployment Compensation Division. Section 12 (a) of the Act provides that the appointment of the Director, other officers, and employees of the Georgia Employment Service is to be made by the Commissioner in accordance with regulations prescribed by the Director of the United States Employment Service. Thus the selection of the personnel of the Georgia State Employment Service Division would be governed by the provisions of Section 11 (d) of the Act only insofar as such method of selection did not conflict with the regulations prescribed by the Director of the United States Employment Service. Section 10 (a) of the Act deals specifically with the appointment of the Director of the Bureau of Unemployment Compensation. That Section provides in part as follows: "The Commissioner by and with the approval of the Governor is authorized to appoint, fix the compensation of, and prescribe the duties of such Director, provided that such appointment shall be on a non-partisan merit basis." Since the office of Director of the Bureau of Unemployment Compensation is one specifically provided for by a statutory provision which directs the manner of his selection, it is my opinion that this would be the exclusive method of the selection of that officer, that is, that he would be appointed by the Commissioner with the approval of the Governor. Their selection of the Director would be determined by their findings of non-partisanship and fitness and the Commissioner and the Governor would not be controlled by any action or recommendation of the Merit Council or any other source unless they so chose. In case there should be any doubt about the proper construction of this section, reference may be made to the caption of the Act in order to arrive at the legislative intent. "The intention of the General Assembly in the passage of a law is derivable as well as from the caption as from the body of the Act itself. " 335 Wimberly v. Georgia Southern and Florida Railway Co., 5 Ga. App. 263. The title of the Act of 1937 provides in part: "An Act to provide for the establishment of an Unemployment Compensation Division in the State Department of Labor; to provide that the Commissioner of said Department shall define the powers and functions of said Division and by and with the approval of the Governor appoint a Director thereof; . . . " With reference to the members of the Board of Review, specific provision is also made in the Act for their appointment. Section 10 (c) provides in part: "Within six months prior to the date when benefits first become payable under this Act there shall be created a Board of Review consisting of three members appointed by the Governor for terms of six years, except that the terms of the members first taking office shall be two, four, and six years, respectively, as designated by the Governor at the time of appointment, and except that vacancies shall be filled by appointment by the Governor for the unexpired term ... The Governor may at any time, after notice and hearing, remove any member for cause. " It is clear that since these officers under the specific provision of the Act are to be appointed by the Governor for designated terms and may be removed by him for cause after notice and hearing, members of the Board of Review are not officers or personnel to be appointed by the Commissioner on the basis of efficiency and fitness as determined by examinations under the provisions of Section 11 (d) of the Act. There is also a specific provision of the Act dealing with members of the Appeal Tribunals. By an Act approved January 25, 1938 (Acts of 1937-1938, Extra Session, pages 356-371) , the Unemployment Compensation Law of 1937 was amended by striking Section 6 (d) of the Act of 1937 which dealt with the appointment of Appeal Tribunals and inserting in lieu thereof a new Section 6 (d) which provides in part as follows: "Appeal Tribunals. -To hear and decide appealed claims, the Board of Review shall appoint one or more impartial appeal tribunals. Each such tribunal shall consist of either a referee selected in accordance with Section 11 (d) of this Act or a body consisting of three members, one of whom shall be a referee, who shall serve as chairman, one of whom shall be a representative of employers, and the other of whom shall be a representative of employees; each of the latter two members may be selected without regard to Section 11 (d) of this Act, shall serve at the pleasure Of the Boardof Review and be paid a fee of not more than $10.00 per day of active service on such tribunal plus necessary expenses . . . " Thus it would appear from the provisions of Section 6 (d), construed in connection with Section 11 (d), that where the Appeal Tribunal consists of a referee, he is to be appointed by the Board of Review on the basis of efficiency and fitness as determined in an examination held for such office. Where, however, the Appeal Tribunal consists of three members, one of such members is to be a referee appointed by the Board of Review on the basis of efficiency and fitness as determined in an examination for such office and the other two may be selected by the Board of Review without regard to Section 11 (d) of the Act. Special provision is also made in the Act for the appointment of Advisory Councils. Section 11 (e) provides: "The Commissioner shall appoint a State Advisory Council and may appoint local or industry advisory councils, composed in each case of an equal number of employer representatives and employee representatives who 336 may fairly be regarded as representatives because of their vocation, employment or affiliations, and of such members representing the general public as the Commissioner may designate. Such councils shall aid the Commissioner in formUlating policies and discussing problems relating to the administration of this Act and in assuring impartiality and freedom from political influence in the solution of such problems. Such advisory councils shall serve without compensation, but shall be reimbursed for any necessary expenses. " Since the manner of appointment, duties and compensation of members of the advisory councils are specified by the provisions of the Act, the members of such councils clearly do not constitute personnel, which the Commissioner under the provisions of Section 11 (d) is authorized to appoint, fix the compensation for, and prescribe the duties and powers of. Thus the positions of membership on the advisory councils would also constitute an exception to the provision of Section 11 (d) of the Act. It woUld also appear that a special Assistant Attorney General designated by the Governor under the provisions of Section 17 (a) of the Act for the purpose of representing the Commissioner, the Board of Review, and the State in any civil action to enforce the provisions of the Act woUld not come under the provisions of Section 11 (d) authorizing the Commissioner to appoint attorneys and reqUiring him to classify positions and make the appointments on the basis of efficiency and fitness as determined by examinations. Other than those officers whose positions have been created, duties defined, and method of selection determined by specific provision of the Act operating as an exception to Section 11 (d), it appears to have been the intent of the General Assembly that the provisions of Section 11 (d) are mandatory and that all other officers, accountants, attorneys, experts, or personnel necessary for the effective administration of the Act are to be appointed on the basis of efficiency and fitness as determined by examination held for the purpose of determining the qualifications of applicants for the positions classified by the Commissioner of Labor. INDUSTRIAL RELATIONS-Unemployment cqmpensation, employment or discharge of Director. March 13, 1939 HonE. D. Rivers, Governor I have your letter of March lOth in which you ask my opinion upon the fol- lowing questions: 1. Whether or not under the law the Commissioner of Labor has the right to discharge or employ a Director of the Bureau of Unemployment Compensation without the approval of the Governor. 2. Whether or not the Commissioner of Labor has the right to discharge or employ a Director of the Division of the Georgia State Employment Service without the approval of the Governor. 3. Whether or not the Commissioner of Labor has the right to discharge or employ any of the personnel of the Labor Department and its subdivisions without the approval of the Governor. The Department of Labor was established by an Act of the General Assembly approved March 25, 1937 (Ga. Laws 1937, pages 230-244) . Section 8 of that Act reads as follows: "Section 8. Division of Department. (a) The Commissioner of Labor, by and with the approval of the Governor, may set up within the Depart- 337 ment of Labor such divisions or bureaus as he may deem necessary for the exercise of the powers and the performance of the duties of the Department, except as otherwise provided. (b) The Commissioner is authorized and empowered by and with the approval of the Governor, to appoint a secretary, the heads of all divisions or bureaus and such other employees as may be needed, and toassign them their duties and fix their annual salaries. Provided, however, that no appointment shall be made whereby the aggregate salaries of the appointees are in excess of the amount appropriated by the Legislature for salaries within the Department of Labor and no salary in excess of $2400. 00 per annum shall be paid without the approval of the Governor. Moreover, the Commissioner, with the approval of the Governor, may remove from office any officer or employee in the Department upon notice and hearing, for neglect of duty or malfeasance in office. Provided, however, that it shall be understood that the Commissioner of Labor is not authorized and empowered to appoint a Secretary and Treasurer of the Industrial Board nor shall he exercise any authority over the personnel of the Industrial Board and shall not be authorized in any circumstance to remove from office any officer or employee of the Industrial Board upon any ground whatsoever, his authority with the Industrial Board shall be advisory only." An Act of the General Assembly approved March 29, 1937 (Ga. Laws 1937, pages 806-849) established an Unemployment Compensation Division in the State Department of Labor. Section 10 of said Act reads as follows: "Section 10. (a) Bureau of Unemployment Compensation. There is hereby created in the Department of Labor a Bureau, to be known as the Bureau of Unemployment Compensation, which shall be administered by a full-time salaried director, who shall be subject to the supervision and direction of the Commissioner of Labor. The Commissioner by and with the approval of the Governor is authorized to appoint, fix the compensation of, and prescribe the duties of such director, provided that such appointment shall be made on a nonpartisan, merit basis. (b) Divisions. There is hereby established in the Bureau of Unemployment Compensation, two coordinate divisions, the Georgia State Employment Service Division, created pursuant to Section 12 of this Act, and the Unemployment Compensation Division. Each division shall be responsible for the discharge of its distinctive functions. Each division shall be a separate administrative unit with respect to personnel, budget, and duties except in so far as the Commissioner may find that such separation is impracticable. (c) Board of Review. Within six months prior to the date when benefits first become payable under this Act there shall be created a Board of Review consisting of three members appointed by the Governor for terms of six years, except that the terms of the members first taking office shall be two, four, and six years, respectively, as designated by the Governor at the time of appointment, and except that vacancies shall be filled by appointment by the Governor for the unexpired term. Each member shall be paid from the unemployment administration fund a compensation for their services to be fixed by the Governor of the State. The Governor may, at any time, after notice and hearing, remove any member for cause. " Under Section 11 (a) of the Unemployment Compensation law (Ga. Laws 1937, page 826) relating to the Commissioner's duties and powers, the following is found: 338 "The Commissioner shall determine his own organization and methods of procedure in accordance with the provisions of this Act, and shall have an official seal, which shall be judicially noticed. . . . " The Unemployment Compensation Law (Ga. Laws 1937, pages 827-828) in the portion thereof relating to administration and personnel in Section 11 subsection (d) provides: "(d) Personnel. Subject to other provisions of this Act, the Commissioner is authorized to appoint, fix the compensation, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of his duties under this Act. The Commissioner may delegate to any such person such power and authority as he deems reasonable and proper for the effective administration of this Act, and may in his discretion bond any persons handling moneys or signing checks hereunder. The Commissioner shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the positions so classified. He shall provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and, except for temporary appointments of not to exceed six months in duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations. No person who is an officer or committee member of any political party organization or who holds or is a candidate for any elective public office shall be appointed or employed under this Act. The Commissioner shall establish and enforce fair and reasonable regulations for appointments, promotions and demotions, based upon ratings of efficiency and fitness and for terminations for cause." Section 12 of said Unemployment Compensation law (Ga. Laws 1937, pages 832-833) sets up the State Employment Service. A part of that section provides: "The Commissioner is directed to appoint the director, other officers, and employees of the Georgia Employment Service. Such appointments shall be made in accordance with regulations prescribed by the Director of the United States Employment Service, and shall be confined to bona fide residents of the State of Georgia. " It will be noted that Section 8, subsection (a) of the Act establishing the Department of Labor (Ga. Laws 1937, page 236) provides for divisions in the Department of Labor. Subsection (b) of said Section 8 authorizes the Commissioner by and with the approval of the Governor, to appoint a secretary, the heads of all divisions or bureaus and such other employees as may be needed, and to assign them their duties and fix their annual salaries. Said subsection of said Section 8 contains the following sentence to-wit: "Moreover, the Commissioner, with the approval of the Governor, may remove from office any officer or employee in the Department upon notice and hearing, for neglect of duty or malfeasance in office. " (Emphasis supplied.) The Act establishing the Department of Labor and the Act providing for an Unemployment Compensation Division in the State Department of Labor were approved within four days of each other. These Acts must be construed pari materia. It is important to note that the Unemployment Compensation Division is established "in the State Department of Labor." Dismissals of officers and employees are specifically provided for in the Act creating the Department of Labor. There is no specific provision in the Act establishing the division of Unemployment Compensation relating to dismissal of officers and 339 employees. When the subject of dismissal of officers and employees is covered in the Act creating the Department and there is no contrary provision in the Act establishing a division in the same department the method of dismissal must be followed in all cases involving officers and employees of the department and the divisions thereof. The method of dismissal is contained in subsection (b) of Section 8 of the Labor Department Act (Acts 1937, pages 236-237) . It is there provided that the Commissioner with the approval of the Governor, may remove from office any officer or employee in the Department upon notice and hearing, for neglect of duty or malfeasance in office. With this existing specific provision for the removal of an officer or employee in the Department, the Commissioner can only remove a director of the Bureau of Unemployment Compensation, or a director of the Georgia State Employment Service or other employees in the Department with the approval of the Governor and upon notice and hearing, for neglect of duty or malfeasance. Not only must the removal of an officer or employee in the Department be with the approval of the Governor but the officer or employee is entitled to notice and hearing "for neglect of duty or malfeasance in office. " I am of the opinion that the Commissioner of Labor has no right to discharge or employ a director of the Bureau of Unemployment Compensation without the approval of the Governor. I am of the further opinion that the Commissioner of Labor has no right to discharge or employ a director of the Georgia State Employment Service without the approval of the Governor. In view of the above quoted language used in subsection (b) of Section 8 of the Act establishing the Labor Department, it is my opinion that the Commissioner of Labor has no right to discharge or employ any of the personnel of the Labor Department and its subdivisions without the approval of the Governor. INDUSTRIAL RELATIONS-Unemployment compensation, applicant's training or experience determined by Supervisor of Examinations. May 24, 1939 Ron. John W. Jones P. 0. Box 4213 Atlanta, Georgia This will acknowledge receipt of your letter of May 20th, in which you state that you filed application with the Supervisor of Examinations for the positions of Junior Clerk, Intermediate Clerk and Intermediate File Clerk, your purpose being to secure a vacancy which might exist in the Bureau of Unemployment Compensation of the Department of Labor. You state that your applications were disapproved because "no high school shown" and you request an opinion as to whether your applications could be disapproved for this reason. The Attorney General is not authorized to render an official opinion except when so requested by the Governor or by one of the officials of the Executive Department of the State. Therefore, anything which I might say in reply to your question must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. Section lld of the Unemployment Compensation Law (Acts of 1937, pages 806 to 848) provides in part as follows: "The Commissioner shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the po- 340 sitions so classified. He shall provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and, except for temporary appointments of not to exceed six months in duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations. " It is my understanding that the minimum educational requirements for applicants who seek to stand examinations for the purpose of securing vacancies that might exist in the Bureau of Unemployment Compensation are the same as those prescribed by Federal rules. These rules require a certain amount of high school education or certain experience in lieu thereof. Whether or not the applicant who has not had any high school education has had the necessary experience is left to the determination of the Supervisor of Examinations. There is also a Supervisory Committee which reviews the findings of the Supervisor of Examinations. I am informed that in your case the Supervisor of Examinations found that your application did not show any high school education or the necessary experience and that this decision was reviewed and affirmed by the Supervisory Committee. I believe, therefore, that your application could be properly disapproved if you did not meet the minimum personnel standards established by the Commissioner. I regret not being able to give you any further assistance in this matter. INDUSTRIAL RELATIONs-Unemployment compensation act does not deny Commissioner of Labor access to records of Board of Review or Personnel Committee. May 24, 1939 Hon. BenT. Huiet, Commissioner Department of Labor of Georgia This will acknowledge yours of the 24th instant requesting my opinion as to the right of the Commissioner of the Department of Labor or other persons designated by the Commissioner of Labor, to examine the minutes of the meetings of the Board of Review and of the Personnel Committee. Provision is made by Section 10 (c) of the Act approved March 29, 1937 (Ga. Laws 1937, pp. 806-849) for the creation of a Board of Review. The Personnel Committee referred to in your letter seems to have no specific statutory origin, but was apparently created also under the authority of the above cited Act. Section 11 of the same Act in prescribing the duties of the Commissioner of Labor in connection with the administration of the Unemployment Compensation Law under which the Board of Review and the Personnel Committee were created, provides in part: "It shall be the duty of the Commissioner to administer this Act . . . to employ such persons, make such expenditures, require such reports, make such investigations and take such other action as he deems necessary or suitable to that end. " (Emphasis supplied. ) Section 6 (d) of the Act provides in part: "The Commissioner shall provide the Board of Review and such appeal tribunals with proper facilities and assistants for the execution of their functions." Under Section 6 (i) of the Act it is made the duty of the Commissioner of Labor in any case of an appeal from a decision of the Board of Review (the Commissioner being made a necessary party by statute in the appeal proceedings) 341 to "certify and file with the said court all documents and papers and a transcript of all testimony taken in the matter, together with the Board of Review's findings of fact and decision therein. " I cannot believe that the Legislature, after charging the Commissioner of Labor with the duty of administering the Unemployment Compensation Law, with the duty of providing the Board of Review with proper facilitie~ and assistants for the execution of their functions, with the duty of certifying the Boards' findings under oath to the Superior Courts in appeal cases, intended then, for some inconsistent reason or with inscrutable design, to deny to the Commissioner that free access to the books and records of his department which the performance of his duties necessarily requires. Certainly, the Act, if it is to be harmoniously construed and any meaning at all attributed to those portions of the Act above quoted, is not subject to such a construction. I am unable to perceive how the Commissioner could perform his duties under the law unless he had acess to the books and records of his department, including the books and records of the Board of Review. I therefore hold that the Commissioner of Labor has the authority to inspect or examine, or to designate others to inspect or examine for and on his behalf, any of the books or records kept by any of the Boards, Committees of Personnel created under or by virtue of the Act of 1937 above cited. There is no provision either in the Act approved March 25, 1937, establishing a Department of Labor (Ga. Laws 1937, pages 230-244) or in the Act first above cited which denies to the Commissioner of Labor access to any of the records or books kept by the Board of Review or the Personnel Committee created under the authority of the Unemployment Compensation Law, nor is there any statutory provision to sustain the position that before the Commissioner of Labor has the authority to examine the minutes of the Board of Review he must first obtain the specific permission of a member of said Board. INSURANCE-State fire inspector's tax is levied on gross premium receipts. May 19, 1939 Hon. W. B. Harrison Insurance Commissioner I have your inquiry of May 12th as to whether or not the one-tenth of one per cent. (1/10 of 1%) levied under Section 56-114 of the Georgia Code of 1933, in the discretion of the Insurance Commissioner, on the gross premium receipts of all fire insurance companies doing business in Georgia to provide for the compensation of State Fire Inspector is subject to the deductions authorized under Section 92-2509 of the Georgia Code of 1933 Annotated. The premium tax levied under the General Tax Act and codified in Section 92-2509 of the Georgia Code of 1933 Annotated is a business or privilege tax levied against all insurance companies. Such tax is in the nature of a general revenue tax. On the other hand, the authority of the Insurance Commissioner to levy one-tenth of one per cent. on gross premium receipts against fire insurance companies is not, in my opinion, a general revenue measure. The authority to levy the one-tenth of one per cent. tax is for the specific purpose of providing compensation for the State Fire Inspector. It is apparent that the State Fire Inspector, in the discharge of his duties, indirectly, if not directly, is of benefit to the fire insurance companies doing business in this State. The provision of law authorizing such levy on the fire 342 insurance companies does not itself levy the tax but merely grants authority to the Insurance Commissioner to levy a tax not to exceed one-tenth of one per cent. The statute authorizing this levy does not provide for any exemptions or any deductions. Therefore, it is my opinion, that whatever amount up to onetenth of one per cent. the Insurance Commissioner may see fit to levy would not be subject to any deduction but would be collected in full in the amount levied. The deductions permitted under the General Tax Act as codified under Section 92-2509 of the Georgia Code of 1933 Annotated and referred to in your letter would not apply. INSURANCE-State fire inspector's tax is not subject to deduction for premiums returned on change of rate or cancelled policies or on reinsurance. August 14, 1939 Honorable W. B. Harrison Insurance Commissioner Under date of May 12, 1939, you requested my construction of Code Section 56-114 with reference to the question as to whether insurance companies subject to the Fire Marshall Tax on "gross premium receipts" were entitled to deduct amounts represented by returned premiums on cancelled policies, or change of rate, and on reinsurance. In reply to this inquiry I advised you, in part: "Whatever amount up to one-tenth of one (1-1/10%) per cent the Insurance Commissioner may see fit to levy would not be subject to any deduction but would be collected in full in the amount levied. The deductions permitted under the General Tax Act as codified in Section 92-2509 of the Georgia Code of 1933 annonated and referred to in your letter would not apply. In your letter of July 7, 1939, you ask my opinion upon the same question, but in different language, as follows: "What constitutes gross premium receipts under Section 56-114 authorizing the Insurance Commissioner in his discretion to levy up to one-tenth of one (1-1/10%) per cent? Does this include premiums returned on cancelled policies, premiums returned on change of rate, or premiums for reinsurance?'' I am pleased to furnish you herewith my opinion upon the questions propounded. The statute involved reads as follows: "Compensation of State fire inspector for making investigations; liability of insurance companies for expenses. -The Insurance Commissioner shall have power to prescribe the compensation of the fire inspector for all examinations required by this law, and said compensation shall be paid and all other expenses incurred in such examination shall be defrayed by the fire insurance companies doing business in this State, and a tax of not more than one-tenth of one per cent. in the discretion of the Insurance Commissioner on the gross premium receipts of all such companies is hereby levied for this purpose, to be collected by the Insurance Commissioner as other taxes on premiums are collected. The Insurance Commissioner . shall keep a separate account of all moneys received and disbursed under the provisions of this section and shall include them in his report to the legislature: Provided, that should the amount thus collected in any one 343 year be in excess of the amount required to meet the expenses herein contemplated, such excess shall be held subject to the order of the Commissioner to be used for the same purpose in the succeeding year: Provided further, that section 56-113 and this section shall not apply to farmers' assessment cooperative fire companies doing business in this State in not more than four counties in a division." (Section 56-114). This section was codified from the Act of 1912 (Ga. L. 1912, p. 119, 132) , and its provisions have been unchanged since its adoption. I. The Language of the Statute Being Clear and Unambiguous, It Is Not Open to Construction. The questions propounded involve the meaning of the language "gross premium receipts". There is nothing in the statute which indicates that the legislature intended this language to carry any meaning other than the ordinary signification of the words used. The language used is plain and unequivocal, and so we must accord to said words their ordinary meaning. In fact by the decisions of the Supreme Court of this State, and under the circumstances above outlined, we are forbidden to place any interpretation upon the meaning of the words used, as they require no interpretation. "The cardinal rule in the construction of legislative enactment is to ascertain the true intention of the General Assembly in the passage of the law. As a general rule, the use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction, and indeed forbids an interpretation of the meaning of the words employed by the General Assembly. " Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656. See also Standard Oil Co. v. State Revenue Comm., 179 Ga. 371, 375, where the Court quotes with approval the language of .Judge Nisbet in Neal v. Moultrie, 12 Ga. 110, as follows: "If the legislature does plainly and distinctly declare its intention, the act is not open to construction; it needs and can receive none. It stands self-interpreted and courts have nothing to do but enforce it. The exclusion of interpretation where none is needed, may be stated to be, nothwithstanding the absurdity which it involves, the first rule of construction. " What, then, is the ordinary signification or meaning of the words "gross premium receipts?" Webster's International Dictionary defines the word "gross" as "Whole; entire; total. The gross earnings, receipts, or the like; or the entire earnings, receipts or the like, under consideration, without any deduction for expenses incurred. " Again in Black's Law Dictionary, 3d Edition, the word "gross" is defined as meaning: "Before or without diminution or deduction; total." To attribute to the phrase "gross premium receipts" the meaning for which the insurance companies contend would be to take away from or vary the meaning of the unambiguous word "gross", and to allow deductions of returned premiums on cancelled policies and on change of rate, and on premiums for reinsurance. "A court should never by construction add to, take from, or vary the meaning of unambiguous words in a statute. " Brooks v. Brooks, 185 Ga. 549, 554. 344 If we gave the word "gross" such a meaning it would be to attribute to the word approximately the same quality or meaning as the word "net" which latter word necessarily connotes the allowance of certain deductions. ("Net. Clear of anything extraneous; with all deductions such as charges, expenses, discounts, commissions, taxes, etc. ; free from expenses. " Black's Law Dictionary, 3d Edition, page 1239). Yet it is manifest by the very language of the statute itself that the legislature intended that the word "gross" should have its ordinary or common meaning-that is, the word "gross" was used in the sense of the antonym or antithesis of "net". So if we gave the word "gross" a meaning which would permit deductions we would be giving to it an uncommon, unnatural and extraordinary signification, rather than the ordinary signification of the word, and would thus be violating the first rule of statutory construction as contained in Code Section 102-102 as follows: "The ordinary signification shall be applied to all words, except words of art, or words connected with a peculiar trade or subject matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter." As was said by the Supreme Court of Texas in the case of Fire Assoc. of Phil. v. Love, 108 S. W. 158: "The language under consideration in the statute is: 'The gross amount of premiums received in the state'. There is no ambiguity in the language of the statute and there can be no doubt as to what its ordinary meaning is . . . It just simply means that the entire sum received by such insurance companies as premiums in this state should be the basis upon which to estimate the occupation tax required to be paid by such companies. " II. But Even if the Statute Is Open to Construction, the Legislative History and .Judicial Determinations Emphasize the Intent of the Legislature to Give to the Words "Gross Premium Receipts" their Common and Ordinary Sense. A. The Legislative History of Insurance Premium Taxation. We have made a careful examination of all the statutes of this State, as contained in the General Tax Acts from the year 1864, and the first premium tax appears to have been levied by Section 4 of the General Tax Act of 1866 (Ga. L. 1866, p. 165). This statute reads: "All agents of insurance companies from other states or of foreign insurance companies doing business in this state, shall pay a tax of two per cent. on the amount of premiums received by them." In 1868 (Ga. L. 1868, p. 154) Section 4 of the General Tax Act provided: "All home and foreign insurance companies, doing business in this state, shall pay one per cent. on all premiums in money, or otherwise received by them: Provided, that when a home company pays the tax upon its capital stock it shall pay no tax upon its premiums. " This same provision, in the language of the Act of 1868, was carried in the General Tax Acts of 1871-2 (Ga. L. 1871-2, p. 276, sec. 4), 1873 (Ga. L. 1873, p. 66, sec. 4). In the General Tax Act of 1874 (Ga. L. 1874, p. 103, sec. 4) a premium tax of one per cent. was imposed in the same language as in the Act of 1868, except that the proviso "provided that when a home company pays the tax on its capital stock it shall pay no tax upon its premiums" was omitted. The General Tax Acts of 1875 (Ga. L. 1875, p. 116, sec. 3) , 1876 (Ga. L. 1876, p. 136, sec. 3), 1877 (Ga. L. 1877, p. 122, sec. 3), 1878 (Ga. L. 1878-79, p. 23, sec. 3), 1880-1 (Ga. L. 1880-1, p. 39, sec. 5), 1882 (Ga. L. 1882-3, p. 37, sec. 5), 1884 (Ga. L. 1884, p. 24, sec. 5) all levied a premium tax of one per cent. on all premiums, money or otherwise received by home and foreign insurance companies doing 345 business in this State, without providing any deductions or exemptions whatsoever for returned premiums on cancelled policies, or on change of rate, or on premiums on reinsurance. We pause here to observe, and it is very significant that from the year 1866 to the year 1886, or for a period of 20 years, the various legislatures of this State established a policy of taxing the gross premium receipts of foreign and home insurance companies without making any allowance for deductions on account of returned premiums on cancelled policies, change of rate or on reinsurance. Then in 1886 the General Tax Act for the years 1886 and 1887 (Ga. L. 1886, p. 20) provided by Section 5 as follows: "That all foreign and home insurance companies doing business in this State shall pay one per cent. on all premiums in money or otherwise received by them: Provided, this shall not include returned premiums on cancelled policies, and in addition to the tax imposed by this act upon the gross receipts of such insurance companies, all such companies doing brokerage business in this State, such as discounting notes, bills, drafts or exchange, lending money or in any manner doing a business pertaining to banking or brokerage business, shall be taxed upon the capital so employed in the same manner and at the same rate as other money capital in the hands of private individuals is taxed." (Emphasis supplied.) Thus we find in this statute for the first time, and couched in express language, an exemption of "returned premiums on cancelled policies". We also find again repeated the expression "gross receipts of such insurance companies" as used in many of the previous premium tax statutes, again indicating that the words "gross receipts" were used as synonymous with the words "all premiums in money or otherwise, received by them". The exemption or allowance of deductions of returned premiums on cancelled policies has, by express language, been continued in every General Tax Act since that of 1886. See Ga. L. 1888, p. 23, sec. 5; Ga. L. 1890-91, p40 (Vol. I), sec. 5; Ga. L. 1892, p. 27, sec. 5; Ga. L. 1894, p. 23, sec. 5; Ga. L. 1896, p. 27, sec. 5; Ga. L. 1898, p. 28, sec. 5; Ga. L. 1900, p. 28, sec. 5; Ga. L. 1902, p. 27, sec. 5; Ga. L. 1905, p. 36, sec. 5; Ga. L. 1907, p. 37, sec. 6; Ga. L. 1909, p. 61, sec. 6; Ga. L. 1918, p. 73, sec. 6; Ga. L. 1921, p. 75, sec. 7; Ga. L. 1923, extra sess., p. 58, sec. 7 (which act also allowed deductions "on change of rate and on reinsurance by companies doing business in this State") (Note: This Act of 1923 was the first express exemption of returned premiums or change of rate and premiums on reinsurance) ; Ga. L. 1927, p. 93, sec. 7; and Ga. L. 1935, p. 60, sec. 7. So, in summing up the history of premium tax legislation in this State we find: First, from 1866 to 1886, a period of 20 years, premium taxes were imposed without any exemption whatsoever on return premiums on cancelled policies. Second, that from 1866 to January 1, 1924, (when the Act of 1923 above cited became effective), or for a period of 58 years, the various legislatures of this State established a legislative policy of allowing no deductions on account of return premiums on change of rate or upon premiums on reinsurance with companies doing business in this State. Third, that when the legislature first adopted a policy of exempting from the gross premium receipts tax returned premiums on cancelled policies it did so in express and explicit language. Fourth, that when the legislature first adopted a policy of exempting return premiums on change of rates (January 1, 1924) it did so in express and explicit language. 346 Fifth, that when the legislature adopted a policy of allowing deductions on premiums on reinsurance with other companies doing business in this State, it expressed such a policy in explicit and unequivocal language. Sixth, that at the time of the enactment of the Fire Marshal Tax (Ga. L. 1912, p. 119) the Premium Tax Law as found in Section 6 of the Georgia Laws of 1909, page 61, was in effect and read as follows: "All foreign and home insurance companies doing business in this State shall pay one per cent. on all premiums, in money or otherwise, received by them, upon the gross receipts of such insurance companies on business done in the State for the year. Provided, this shall not include return premiums on cancelled policies. " Seventh, that during the entire course of this legislation the words "gross receipts" or "gross premium receipts" have received at the hands of the legislature itself a construction or have been attributed a meaning entirely harmonious with the common and ordinary meaning of such words, that is, that such words were to be construed as meaning just what they say, unless the legislature itself makes an express exception thereto. (McDonald v. The State, 6 Ga. App. 339, 345) . Eighth, that when the Act of 1912 (Ga. L. 1912, pp. 119, 132) was adopted, the legislature was fully cognizant of the existing legislation with reference to premium taxes as levied in the General Tax Act, for Section 26 of said act expressly provided that the Fire Marshal Tax should be "Collected by the Insurance Commissioner as other taxes on premiums are collected. " Keeping in mind these significant facts with reference to the legislative policy towards insurance premium taxation, we are forced to the conclusion that if the legislature had intended to allow deductions from the "gross premium receipts" of return premiums on cancelled policies, on change of rate, or on reinsurance, it would have expressed such an intent in appropriate and explicit language in the Act of 1912, or would have amended the Act of 1912 at some subsequent date so as to provide for such deductions. Throughout the course of the premium tax legislation as contained in the General Tax Acts above cited the words "gross receipts", "gross premium receipts" and "all premiums in money or otherwise, received by them" became clothed with a very definite meaning, and there is no escape from the conclusion that the legislature intended that such words should carry only one import: Their ordinary, common, natural, plain and unambiguous significance, and that such meaning was not to be qualified or diminished or varied except by eYpress language of a statute. At the time the Act of 1912 was passed, the legislature had never authorized any deductions for return premiums on change of rates or reinsurance, but only upon return premiums on cancelled policies. So it cannot be logically argued that the words "to be collected by the Insurance Commissioner as other taxes on premiums are collected" express the intent that the same deductions as are now allowed on gross premium receipt taxes levied under the General Tax Act are to be allowed in the case of the Fire Marshal Tax on "gross premium receipts. " B. The Decisions of Our Appellate Courts and the Opinions of Attorneys General Construe the Premium Tax Statutes as Permitting no Deductions not Expressly Provided For. Construing Section 6 of the General Tax Act of 1918, as amended by Section 2 of the General Tax Act of 1919, the Court of Appeals in the case of New York Life Ins. Co. v. Wright, Ins. Commissioner, 31 App. 713 (1), held; 347 "All 'premiums' and 'gross receipts' of insurance companies doing business in this State, which are subject to taxation under said General Tax Acts, include, as applied to life insurance companies, the actual maximum table rate of premiums which the policy holder is, under his contract of insurance, required to pay to the insurance companv, and which obligation is discharged by the policy holder either by payment in full to the company or by a partial payment thereon, supplemented by a credit made thereon by the company of any so-called 'dividend' which has accrued to the policy holder, although such 'dividend' may be an amount which had been collected from the policy holder as part payment of a former premium on the policy, but it was in fact a surplus collected over an amount which had been afterwards ascertained as being a sufficient premium for carrying the policy for the period for which such payment had been made, and which was money belonging to the policy holder and returnable to him." Under date of March 29, 1917, Honorable Clifford Walker, then Attorney General of this State, in an official opinion to Honorable William A. Wright, Insurance Commissioner, advised that premiums paid by a company on reinsurance were not deductible from the gross receipts of the company before paying the gross premium receipts tax levied under the General Tax Act (see Opinion Attorneys General, 1918, p. 130) . In an opinion dated July 9, 1913, by Honorable T. S. Felder, then Attorney General, to Honorable William A. Wright, Insurance Commissioner, it was held that insurance companies doing business in this State on a mutual plan were not entitled to deduct dividends paid to policy holders or credited to their account from gross receipts before making payment of the insurance premium tax (see Opinion of Attorneys General, January 1, 1904, to January 1, 1914, as compiled by W. R. Jones). Again under date of June 30, 1888, the Honorable Clifford Anderson, then Attorney General of this State, advised Honorable William A. Wright, Comptroller General, that dividends distributed to stock holders by insurance companies were required to be included as a part of the "gross receipts" of such companies in making their premium tax payments (see Opinions of Attorneys General, January 1, 1881, to January 1, 1904, as compiled by W. R. Jones). The soundness of these decisions and opinions appears never to have been challenged by the companies. We may say, therefore, that the premium tax statutes of this State have received at the hands of the legislature, the courts and the attorneys general a uniform construction against the allowance of any deductions from the gross receipts of such companies except such deductions as are expressly and explicitly provided for in the statutes themselves. III. The Decisions of the Courts of Other States on the Question Are Not Controlling, Either Because of Different Legislative and Judicial Attitude, or Because Such Cases Are Distinguishable. In the brief submitted by the insurance companies, the case of St. Paul Fire & Marine Ins. Co. v. Lewis, 144 Pac. 822, is cited and relied upon. The issue in that case was not whether the return premiums on cancelled policies, change of rates, or on reinsurance were deductible, but whether the premium tax was to be collected on premiums received for hail, tornado and marine insurance, as well as on fire insurance premiums. In the case of German Alliance Ins. Co. v. Van Cleave, State Ins. Commissioner, 61 N. E. 94, .348 it was said: "There is no dispute as to the meaning of the word 'gross' and it is conceded that it means the whole or entire amount of premiums received for business done in this state during the year. The word 'gross' is opposed to 'net' and its ordinary meaning is the entire amount of the receipts of a business, while the net receipts are those remaining after deductions for the expenses and charges of conducting the business." But the Court allowed deductions for return premiums on cancelled policies on the theory that such receipts did not represent "business done" within the State of Illinois. The phrase "business done" is not a constituent element of the levy of the tax under the Georgia statutes. In the companion cases of State ex rel. Breckenridge v. Fleming, Tax Comm., Palmer v. Fleming, 97 N. W. 1063, the Court was dealing with a premium tax statute making the assessment upon an ad valorem basis; that is, a statute levYing an ad valorem as distinguished from an occupation or franchise tax. The Supreme Court of Texas specifically pointed out this very distinction in its decision in the case of Fire Assoc. of Phil. v. Love, 108 S. W. 158, wherein it was said: "In the Illinois statute the levy was made upon gross premiums received as property, while in this state the tax is imposed for the privilege of doing business in Texas. " The Supreme Court of Texas also distinguished the German Alliance case and the Breckenridge and Palmer cases by saying: "It is assumed by counsel that the legislature intended to levy a tax only upon such sums as should be retained by the insurance companies. In support of this position, counsel referred to German Alliance Ins. Co. v. Van Cleave, 191 Ill. 410, 61 N. E. 94; State v. Fleming, Tax Commissioner, 70 Neb. 523, 97 N. W. 1063; State ex rel. Palmer v. Fleming, Tax Commissioner Id. The first case cited from Nebraska did not involve this question, but the second is very similar to the case of German Alliance Ins. Co. v. Van Cleave and in fact followed the Illinois case." Construing its own statute the Supreme Court of Texas said: "When the premium is received by the insurance company it has transacted the business for which it is licensed, and it becomes a matter of no importance to the state whether the company retains the money or not. The whole purpose and object of ascertaining the amount of premiums received is to fix the value of the privilege granted. " Disposing of the contention with reference to the amounts paid out by a company for reinsurance the Texas Court said: "But, by ascertaining the business done during the preceding year, it is claimed, where the company at the time of issuing the policy intended to reinsure the property, and afterwards reinsured it, the amount thereafter paid out for reinsurance does not constitute a part of the gross premiums received. Counsel have not undertaken to show by what rule of construction they arrived at such a conclusion. If it were establisheigest ______________________________________ $269,000.00 Of this $269, 000. 00 the tax collector is to collect 90% at the regular scale and will be entitled to 10% on the last 10%. 1rhe 1939 Act which provides for the extra 10% commission on the last 10% of the net digest has not been construed by our appellate courts. However, Judge Malcom D. Jones, judge of the Macon Judicial Circuit, held in the case of Commissioners of Bibb County v. Winslett, 1rax Collector, that the tax collector was entitled to receive 10% on intangibles the same as other classes of property. 1rhe decision of Judge Jones was appealed to the Supreme Court. 1rhe Supreme Court has not yet rendered a decision on this appeal. PUBLIC REVENUE; 1rAX COLLEC1rORS-Commissions, amendment (Ga. Laws 1939 pp. 370-372) construed. May 4, 1940 Hon. 1r. Grady Head State Revenue Commissioner I am pleased to acknowledge receipt of your letter of May 4th, which was delivered to me by Mr. B. E. 1rhrasher, your Chief Clerk in the Department of Revenue charged with the collection of ad valorem taxes, in which you request an opinion construing the Act passed by the General Assembly, approved March 24, 1939 (Ga. Laws 1939, pages 370-372, inclusive) . 1rhe General Assembly realized that it was more difficult for the tax collectors to collect the last ten per cent of the taxes on their digests than the first ninety per cent and because of this fact together with the desire of the General Assembly to encourage the tax collectors or tax commissioners to collect the entire tax digests passed the law referred to in your letter. 1rhe law passed by the General Assembly is clear and unambiguous. Section 3 of the Act in question contains the following provision: "Section 3. Be it further enacted by the authority aforesaid that as far as the tax-collectors are concerned the above rates and schedules shall apply upon the first 90% of the ad valorem net digests collected by the taxcollector. On all taxes collected in excess of 90% of the total of taxes due according to the tax net digest, the tax-collectors' commission shall be for such taxes 10% of all such collections, irrespective of the above and foregoing schedule and rates. And provided further that in those counties where the tax collector or tax commissioner as the case may be is paid a salary this said commission shall be paid to the said tax-collector above and beyond the said salary. Provided however that in Counties having a population of two hundred thousand or more according to the census of 1930 where the tax commissioner or tax collector as the case may be is on a salary the commissions referred to herein shall be paid into the treasury of such counties. " Section 3 is followed by a repealing clause. I am of the definite opinion that county tax collectors and county tax commissioners in all counties of the state other than in those of a population of 200, ooo or more are personally entitled to a fee of 10% on state and county taxes 581 collected by them in excess of 90% of the taxes on their digests, which said fee is in addition to any salary that may be fixed by a local Act, but the provision of law authorizing additional compensation to tax collectors and tax commissioners does not apply to school taxes. The Act in question was an amendment to the Act of 1937-38, pages 297-299, inclusive, which Act amended Code Section 92-5301 relating to fees due county tax collectors or county tax commissioners for the collection of taxes other than school taxes. School taxes, which include county wide school taxes, local school taxes and taxes to pay interest and liquidate bonded indebtedness of school districts, are also collected by the tax collector or tax commissioner but a different schedule for the collection thereof is provided by law. Code Section 32-1114 contains the following provision relating to the collection of these taxes: "32-1114. Tax collector, duties of. -It shall be the duty of the tax collector to compute and collect said taxes, keeping the same separate by school districts from the county and State funds, and monthly turn same over to the secretaries of such local school districts, as well as tax received for said districts from railroads and other corporations which make their returns to the Comptroller General, taking the receipt for the same, upon order from the county superintendent of schools, and said tax collector shall receive as compensation therefor two and one-half per cent. of the amount collected up to $18, 000 and one and one-fourth per cent. on any additional amount collected. " PUBLIC REVENUE; TAX COLLECTORS-Commissions, amendment (Ga. Laws 1939 pp. 370-372) construed. May 5, 1939 Hon. John L. Cabell Tax Collector Chatham County Savannah, Georgia I wish to acknowledge receipt of your letter of May 3rd in which you ask certain questions. The first question you propound is as follows: "Section 1 specifies certain language that is to be eliminated from the original Act so as to amend Section 3 of that Act and follows with Section 3 in full as amended. The elimination of the language from Section 3 of the Act of 1937-1938 as specified in Section 1 of the Act of 1939 does not produce the exact wording of Section 3 of the Act as passed in 1939. "The caption of the Act specifies the elimination of the word 'delinquent', while Section 1 does not specify its elimination." I am of the opinion that Section 1, subsection 3, which is as follows: "Be it further enacted by the authority aforesaid that as far as the tax-collectors are concerned the above rates and schedules shall apply upon the first 90% of the ad valorem net digests collected by the tax-collector. On all taxes collected in excess of 90% of the total of taxes due according to the tax net digest, the tax-collectors' commission shall be for such taxes 10% of all such collections, irrespective of the above and foregoing schedule and rates. And provided further that in those counties where the tax-collector or tax commissioner as the case may be is paid a salary this said commission shall be paid to the said tax-collector above and beyond the said salary. Provided however that in Counties having a population, of two hundred thousand or more according to the census of 1930 where the tax com- 582 missioner or tax collector as the case may be is on a salary the commissions referred to herein shall be paid into the treasury of such counties." conforms to the title of the bill and since subsection 3 does not use the word "delinquent" it has by the failure to use said word in rewriting the section eliminated the same. The next question you ask is as follows: "It is the general understanding among the Tax Collectors that the amended Act of 1939 has the following effects: "1: It continues in effect the Tax Collector's commission of 10% on all State Ad Valorem taxes above 90% of the net digest for the years prior to 1938." It is the general understanding that the 10% commission provided in the 193738 Laws of the last 10% of the digest applies to the State's portion of all taxes collected over 90% on all digests of the county for the years prior to 1938. You ask the additional question: "2: It allows the Tax Collectors a commission of 10% on all collections in excess of 90% of the net digest for all years. This 10% commission will apply on all taxes including State, County and School taxes. " I am of the opinion that the 10% allowed to all tax collectors in excess of 90% of the net digest includes all State and county taxes but does not include school taxes since the commission to be paid for the collection of school taxes is provided in a separate Act. You also ask the question: "3: The commissions are to be paid the Tax Collector above and beyond any salary that may be paid the Tax Collector by the County. " I am of the opinion that the commissions are to be paid to the tax collector beyond any salary that may be paid the tax collector by the county. The Act provides: "And provided further that in those counties where the tax-collector or. tax commissioner as the case may be is paid a salary, this said commission shall be paid to the said tax-collector above and beyond the said salary." I am glad to reply to your letter giving you my unofficial opinion as to the Act in question. PUBLIC REVENUE; TAX COLLECTORS-Commissions, amendment (Ga. Laws 1939 pp. 370-372) construed. .Tune 7, 1939 Hon. .T. G. Morris Tax Commissioner Clayton County .Jonesboro, Georgia In reply to your letter of .Tune 6, 1939. You ask three questions in regard to the amendment passed by the 1937-38 Extra Session of the Legislature dealing with commissions to tax collectors. Your first question is as follows: "1. Am I entitled to receive a 10% commission from the County Wide Schools, the Local Schools and the Bond Levies under this new act?" The commission of ten per cent provided in this act does not apply to school taxes because of the fact that it is an amendment to Code Section 92-5301 which fixes the commission on state and county taxes. The tax collector's commission 583 rate on school taxes is two and one-half per cent up to $1800. 00 and one and one- quarter per cent over that amount. "2. Am I entitled to receive a 10% commission on the interest and fi. fa. cost collected on tax fifas?" I am of the opinion that you would be entitled to 10% comniission on the in- terest but that you would not be entitled to 10% commission on the costs of col- lection. Your third question is as follows: "3. Am I entitled to receive any or all of these commissions on years prior to 1938 if they are collected in excess of 90%?" I am of the opinion that the commission of ten per cent on the last ten per cent of the net digest applies on all years prior to 1938 on any collections made since March 25, 1938. The new Act makes the ten per cent on the last ten per cent of the net digest apply on 1938 and future years. The net digest for state purposes is the total amount charged tax collectors less items which are de- clared insolvent. The net digest for county purposes is the tax or taxes arising from the regular digest plus the public utility taxes less insolvents. Under the law I am not permitted to render official opinions to anyone ex- cept the Governor and heads of State Departments, but I am glad to render any assistance that I can to county officials and hope that you will call on me whenever I can be of any help to you. PUBLIC REVENUE; TAX COLLECTORS-List of commissions to be filed. May 25, 1940 Ron. Fred Jones Tax Commissioner Dodge County Eastman, Georgia I am pleased to acknowledge receipt of your letter of May 18th in which you ask the following question: "Please inform me if I am supposed to file a list of the 10% commission I get from the last 10% of taxes collected from the digest with the County and State, and how often I am supposed to do this. " Under the law I am not permitted to render official opinions to anyone other than the Governor and department heads and anything that I might say in this letter is to be considered only as information and not binding upon you or the State or anyone else. I am always pleased to render any personal service that I can to the county officers of our State. Section 92-5304 of the amended code reads as follows: "To what commissions apply; delinquent taxes. As far as the tax collectors are concerned, the rates and schedules prescribed by section 92-5301 shall apply upon the first 90% of the ad valorem net digest col,lected by the tax collector. On all taxes collected in excess of 90% of the total of taxes due, according to the tax net digest, the tax collector's commission shall be for such taxes 10% of all such collections, irrespective of the above and foregoing schedule and rates. In those counties where the tax collector or tax commissioner as the case may be is paid a salary this said commission shall be paid to the tax collector above and beyond the said salary. (Acts 1937-38 Ex. Sess., pp. 297, 298; 1939 p. 370.) " 584 Section 92-5302 of the Code provides the method of arriving at the net amount of the digest and reads as follows: "In arriving at the net amount of the digest, the default list shall be deducted from the receivers, and the insolvent list for the collectors. " Section 92-5401 of the Code is as follows: "Receivers failing to complete digest; forfeiture of commissions. -If a tax receiver fails to have his digest completed and deposited by the first day of August in each year, unless excused by the terms of the law or by the Comptroller General, he shall forfeit, for every week's delay one-tenth of his commissions; . . . " It seems to me that in order for the tax commissioner to complete his digest according to the above provisions of law he should list the ten per cent commission he receives from the last ten percent of taxes collected from the digest and that this list should be filed on or before the first day of August in each year unless excused under the provisions set forth in Section 92-5401 above quoted. PUBLIC REVENUE; TAX COLLECTORS-Commissions on intangible tax collections. June 19, 1939 Honorable Chas. H. Arnall, Clerk County Commissioners, Coweta County Newnan, Georgia This will acknowledge yours of the 17th instant with reference to the right of the Tax Commissioner of Coweta County to receive commissions upon intangible tax collected on behalf of municipalities in the county. As you state, the Tax Commissioner of Coweta County is on a salary. Under Section 1 of the Act approved February 11, 1937 (Ga. L. 1937, page 1307) it is provided in part: "Said Coweta County tax commissioner shall receive and be paid, as full compensation for all duties performed by him as receiver and collector of State, county, school district, and any and all other taxes, including professional, poll, and special taxes, as well as cost for issuing tax fi. fas., a fixed salary of three thousand ($3, 000. 00) dollars per annum, to be paid in equal monthly installments of two hundred and fifty ($250. 00) dollars each, " The Intangible Tax Act was approved December 27, 1937, or some months subsequent to the Coweta County Tax Commissioner Act. Under Section 11 of the Intangible Tax Act the county tax collector is required to make distribution of the revenue collected from each owner of intangible property as between the State and the various local taxing districts, including municipalities. The rate of distribution to municipalities of collections made on intangible personal property which has a taxable situs within an incorporated municipality is set out in subsection (c) and (d) of Section 11. In Section 10 it is provided that the county tax receiver or tax collector "shall be entitled to his usual commissions" for assessments made by the Revenue Commission, or its successor "as though he himself made the assessment", and it is further provided: "The taxes on said property at the rates fixed herein shall be collected by the County Tax Collectors subject to general provisions of law as to remuneration of the collector." 585 You will note that I have emphasized the words "general provisions". These words are significant for the reason that it will be remembered that the salary of the tax commissioner of Coweta County is fixed under a "special provision" or special statute. The remuneration of a tax collector or tax commissioner for duties performed or taxes collected under the Intangible Tax Act is to be determined under "general provisions of law" rather than under the special act of 1937 above cited. See Georgia Laws Extra Session 1937-38, page 297. I am of the unofficial opinion, therefore, that a tax commissioner would be entitled to the fees enumerated in accordance with the scale fixed in the general law last cited on collections made by him of intangible taxes for and on behalf of the municipalities. PUBLIC REVENUE; TAX COLLECTORS-Insolvent lists. June 21, 1940 Honorable Morris W. Tift Chairman, Board of County Commissioners Dougherty County Albany, Georgia With further reference to the allowance by the County Commissioners of the insolvent list of your Tax Collector, I have reached the conclusion that the proper procedure to be followed is that outlined in Code Sections 92-7102, 92-7103, 92-7104, 92-7105, 92-7106 and 92-5302. These sections provide, in substance, that the ordinary or other county authorities shall not allow any insolvent list of the Tax Collector until and unless the various executions listed shall have had an entry made upon them "by the proper legal officer of 'no property'. " After the insolvent list is allowed the County Commissioners should state how much is allowed the Tax Collector on account of the State taxes and how much on the county tax. The County Commissioners retain a copy of the insolvent list, after it has been allowed, and return the executions to the Tax Collector who is reqUired by Section 927105 to place them in the hands of some levying officer for collection. When collections are made of any of these executions the levying officer is entitled to the same fees as he is entitled to for other executions, plus 2!%. and the balance is paid by the levying officer to the Tax Collector, whose duty it is to transmit the county taxes to the county treasurer and the State taxes to the State treasurer. After the insolvent list is allowed, the County Commissioners should enter the same on the minutes and furnish the Tax Collector certified copies of the list as allowed showing when and by what authority such list was allowed. Under the authority of Code Section 92-5302 the net amount of the Tax Collector's digest is arrived at by deducting the insolvent list from the digest prepared by the Tax Receiver. I am unable to find any more expeditious or practical way for the allowance of the insolvent list. The statute cited above seems to prescribe the only method whereby the list may be allowed and deducted. 586 PUBLIC REVENUE; TAXATION, Ad Valorem-Proportionate payment by owner or lienholder. July 22, 1940 Hon. W. H. West Tax Collector Greene County Greensboro, Georgia Your letter of July 17, 1940, has been handed to me by Assistant Attorney General Marshall Allison. I am sorry that I was not in the office on the day that you and Sheriff Reynolds called. I regret that I did not have the pleasure of seeing both of you in person. In your letter you ask an opinion as to whether the County Tax Collector is entitled to the schedule of costs for collecting a tax execution as provided in Code Section 92-8001 and the fee for issuing tax executions as provided in Code Section 92-8002, from a lienholder who requests separation of the tax under Code Section 92-5712 and pays the proportionate part of the taxes assessed against a taxpayer after December 20 of the year in which the tax is due and upon which a tax execution has been issued and upon which there remains against the taxpayer unpaid taxes on his personal property. You attach a form of a receipt and release submitted to you by the Federal Land Bank of Columbia and ask whether you are authorized under the law to execute this receipt and release where the lienholder pays a proportionate part of the taxes of the property upon which it has a lien. I am always glad to be of whatever service I can to the county officials of this State, but I feel impelled to say that primarily your question concerns the amount of costs and fees to which you are entitled as the County Tax Collector. Under the law I am authorized to render official opinions to only the Governor and heads of the Departments of this State upon matters concerning the State. In connection with the question you ask, I do not feel that I would be authorized to render an official opinion or that such an opinion as I would render would be binding upon you. You may have a considerable amount of money involved in fees and costs that would hinge upon the determination of your question. So, whatever my view upon the question might be, you might decide, and properly so, that you wanted an adjudication by the courts of this State to decide the question as to whether or not you are entitled to the costs and fees that might be involved. Therefore, it might be advisable for you to consult your local attorney for his advice before you make your decision in the premises. As suggested above, I am always glad to be of whatever help I can to the County Tax Collectors in their problems, and I am setting forth hereinafter some general principles and a general discussion. that you might submit to your local attorney if you care to do so, with the hope that it might be of some assistance to you and your attorney. The statute providing for proportionate payments of taxes by owners, lienholders, etc., is taken from Ga. Laws 1931, p. 122; Ga. Laws 1933, p. 50; and is codified in the 1933 Georgia Code under Section 92-5712. This statute and code section is silent as to the time an owner or lienholder has the privilege of paying the proportionate part of taxes assessed against a taxpayer. The statute and code section is also silent as to whether or not an owner or lienholder can pay the proportionate part of taxes assessed against a taxpayer after the assessment is reduced to a fifa. The statute and code section is further silent of any language therein as to whether or not costs of collection of the tax execution or fee for issuing the tax execution or any part thereof may be collected from 587 the lienholder who may pay the proportionate part of the taxes. These questions may be of such doubt that only the courts of this State in a proper case made could provide the correct answer, and I hesitate to venture my opinion on such questions to one to whom by law I am not authorized to render an official opinion. As far as I can find, the statute as codified under Code Section 92-5712 has only been dealt with by the courts of this State in the following cases, to-wit: Morris v. Interstate Bond Co. 180 Ga. 689; Hiatt, receiver, v. Woods et al; and vice versa, 49 Ga. App. 465;_ County of Bibb et al v. Mortgage Bond Company, 183 Ga. 402; Wofford Oil Co. v. City of Atlanta, et al, 183 Ga. 492; Durham v. Smith, commissioner, et al; et vice versa, 186 Ga. 565. Unfortunately, none of ~he foregoing cases particularly deal with your question. There is no express language in Code Section 92-5712 requiring the lienholder to pay more than the proportionate part of the tax plus a fee of 50 cents for issuing the receipt and the release. It is respectfUlly called to your attention that Code Section 92-8001 provides that the Sheriff or other officer of any county shall be entitled to $1. 00 for costs when he shall collect any tax execution over $100, or 50 cents when he shall collect any tax execution of $100 or under. There is no specific provision under this code section for a case where the tax execution may be paid in part and there remains an uncollected portion against the taxpayer. Code Section 92-8002 provides that "Tax Collectors shall be allowed a fee of 50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendant." (Emphasis supplied.) Doubtless the lienholder who offers to pay the proportionate part of the taxes and refuses to pay the costs of collecting a tax execution and the fee for issuing the tax execution will take the position that, since there remains upon the tax execution an item of tax against the personal property of the taxpayer, these costs of collection and costs of issuing the tax execution should be made from the taxpayer against whom the tax execution was issued and that the personal property of the taxpayer should be bound therefor. You can readily appreciate the intricacies of the legal questions here involved, and I am sure you can understand my reluctance to say to you definitely what yoti shoUld do in the solution of your problem, other than, as I have already suggested above, that you consult your local attorney for advice as to your decision in the premises. My personal view is that if and when you determine that the lienholder has paid all that he is required to pay under Code Section 92-5712, then the form of receipt and release which you have attached to your letter of .JUly 17 appears to be in order. PUBLIC REVENUE; TAXATION, Ad Valorem-Actual owner may pay tax although assessed in name of another. May 19, 1939 Hon. Louis L. Brown Attorney at Law Fort Valley, Georgia I reply to your letter of May 16th enclosing a letter written by Hon. A. C. Riley to you on May 13th. 588 The letter of Mr. Riley states that the real estate in question was never owned by the Peach County Motor Company but was and is now owned by a Mr. Frederick although the property in question had been returned for taxation by the Peach County Motor Company and that they were due to pay the taxes on the property because of a contract with the owner of the real estate. The question is whether or not the property of Mr. Frederick is subject to the taxes due by the Peach County Motor Company. I am of the opinion that although the Peach County Motor Company returned t~s property for taxation the owner of the property, Mr. Frederick, would have the right to pay the taxes on the real estate in question and the real estate would not be subject to the taxes due by the Peach County Motor Company. The General Assembly in 1933 went so far as to provide that "the owner or holder of any equity, lien or interest in or on property returned or assessed with other property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property . . . " (Code Section 92-5712.) You understand that under the law I cannot give an official opinion to individuals, however, I am glad to reply to your letter as a matter of information and I hope that the information contained herein will be of assistance to you gentlemen and the county authorities of Peach County in adjusting this matter. PUBLIC REVENUE; TAXATION, Ad Valorem-Tax execution may be enforced after the defendant in fi. fa. dies. October 30, 1940 Mrs. N. M. Reynolds Tax Collector Jenkins County Millen, Georgia I have your letter of October 28th asking if a tax execution issued against a person during his lifetime can be enforced as such after his death. Section 92-5707 of the 1933 Code provides 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." (Emphasis supplied.) Although it is unquestionably true that a tax execution issued merely against an estate is void (Wilson v. Eatonton, 180 Ga. 598) , it is my opinion that a tax execution issued against a named person during his lifetime does not become void because that person subsequently dies. In the course of its opinion in the case of Penn Mutual Life Insurance Company v. Donalson, 177 Ga. 84, 90, the court said: "Since the adoption of the Code, executions for state and county taxes stand on the same footing, as to the levy and sale of property, as executions issued under judgments at law. Byars v. Curry, 75 Ga. 515; Morris v. Davis, 75 Ga. 174; Norris v. Coley, 100 Ga. 554. (28 S. E. 222). It follows from the ruling just quoted that an execution against 'the estate of' a named person would be void for similar reasons. However, a judgment rendered or an execution issued does not become void because the defendant therein subsequently dies. The execution may be enforced against the property of the deceased. " (Emphasis supplied. ) In view of the foregoing Citations of authority, it is my opinion that a tax execution issued against a person prior to his death may be levied against any 589 property of his estate; and that it is not necessary to issue a new execution against the administrator of his estate. .. P1ffiLIC REVENUE; TAXATION, Ad Valorem-January 1st assessable date. May 3, 1939 Hon. Leon Phillips Tax Commissioner Treutlen County Soperton, Georgia This will acknowledge yours of the 1st instant requesting my opinion as to the proper date for the determination of when property is returnable for taxation. Code Section 92-6202 provides: "The individual returns made by taxpayers to the tax receiver shall be for property held and subject to taxation on the first day of January, next preceding. " The Supreme Court in the case of Sims v. Kennedy, 184 Ga. 822, said: "The day fixed for the return of property for taxation by individuals is January 1 of each year. " Applying this Code Section to the facts stated in your letter, it is obvious that if John Smith purchases some mules or other property after January 1, 1939, he does not have to return said property for taxation for the year 1939. It is obvious, also, that if John Smith has a Model T Ford car worth $50 on January 1, 1939, but trades it to the Packard Motor Company for a Packard automobile worth $1200 on February 1, he is required to return the Model T Ford for taxation, but is not required to return the Packard for the year 1939. I am sorry that my construction of this statute does not coincide with yours, but I think we must both agree that the provisions of the statute as above quoted are very plain. PUl3LIC REVENUE; TAXATION, Ad Valorem-Assessments. Arbi~ration. June 27, 1939 Hon. W. J. Morgan Route #1 Stillmore, Georgia This will acknowledge receipt of your letter of recent date in which you inquire as to who pays the costs of arbitration when the tax assessors assess certain property for the purposes of taxation and the owner of said property is dissatisfied and requests an arbitration. The Attorney General is not authorized by law to render an official opinion to a private individual. Therefore, anything which I might say in reply to your inquiry must be considered as merely an expression of my personal views upon the subject and not binding upon anyone. The law to which you evidently have reference is embodied in Section 92-6912 of the Georgia Code of 1933, which provides that any taxpayer who is dissatisfied with the actions of the County Board of Tax Assessors in fixing a valuation to be placed on the property of such taxpayer may give notice to the Board that he demands an arbitration, giving at the same time the name of his arbitrator. This section as codified does not specifically provide how the costs of such ar- 590 bitration shall be paid. However, Section 92-6912 of the Code of 1933 was codified from the Acts of 1913 (Acts of 1913, pp. 123-134) . The Act of 1913 contained the following provision: "Said arbitration shall be had and the said arbitrator shall be com- pensated in the same manner as is now provided for the arbitration of in- dividual tax returns, except insofar as the existing law may be modified by the provisions of this section. " As pointed out in the case of Vestel v. Edwards, 143 Ga. 368, the existing law on the question of arbitration of individual tax returns at the time the Act of 1913 was passed was contained in Section 1097 et seq. of the Civil Code of 1910, and in the Acts of 1910, page 24. However, I do not find that the law relating to the arbitration of individual tax returns which was in effect prior to the passage of the Act of 1913 contained any specific provisions for the compensation of the arbitrators or the costs of such proceeding. It is my opinion, therefore, that the general law of this State with reference to the compensation of arbitrators and the costs of such proceedings would ap- ply. Your attention is called to Section 7-222 of the Code of 1933 which provides as follows: "The arbitrators shall return in their award the costs of the case, which they may tax against either party, or a part against one and a part against the other, according as they may think just and right." Section 7-223 of the Code of 1933 reads as follows: "The arbitrators shall have such compensation for their services as may be agreed upon by themselves and the parties, which shall be paid equally by the parties, or included in the judgment or decree of the court to which said award is returned, as part of the costs in said case; and if the parties fail to agree on the amount so to be paid, the court to which said award is returned shall direct an issue (as to the amount of the fee) to be formed between the parties and the arbitrators, which shall be tried by a jury, whose verdict shall be final and conclusive, unless reversed, and the subsequent proceedings thereon shall be the same as in cases of appeal. " As pointed out by the Supreme Court in the case of Wade v. Powell, 31 Ga. 1, even though reference to arbitration is not made under the statute of the State providing for the right of arbitrators to settle their fees, it is a good rule and ought to be adopted and enforced in arbitrations outside of that statute as the sense of the law on that subject. I believe, therefore, that the arbitrators should have such compensation for their services as may be agreed upon by themselves and the parties, which should be paid in the manner pointed out in Section 7-223 of the Code of 1933 hereinabove quoted. PUBLIC REVENUE; TAXATION, Ad Valorem-Duties of county authorities in collection of tax executions. September 1, 1939 Hon. W. H. Key Attorney at Law Monticello, Georgia This letter is in answer to your inquiry about the power of your Board of County Commissioners to require the return to them of tax executions which the Tax Collector has turned over to the Sheriff. Section 92-7401 of the 1933 Code provides that tax executions shall be issued by the Tax Collector as soon as the last day for payment of taxes has arrived, 591 and that such executions shall be directed to all and singular the sheriffs and constables of this State. Section 92-8104 of the 1933 Code provides that the Tax Collector may place his executions in the hands of any constable or other levying officer of the county, and that it shall be the duty of the levying officer to whom the Tax Collector may deliver said tax executions for collection to proceed promptly to enforce by levy and sale the collection of the same, and that said levying or collecting officer shall make prompt settlement with the Tax Collector, and in no event shall he be allowed longer than ninety days from the time the executions are placed in his hands within which to make final settlement with the Tax Collector and return to him the tax collected and the uncollected executions with proper entries thereon. Section 92-7105 of the 1933 Code provides that when the Tax Collector has had his insolvent list credited and allowed by the authority having charge of county affairs, it shall be the duty of such authority having charge of county affairs to return the insolvent executions to the Tax Collector, who shall cause them to be placed in the hands of some levying officer for collection, to be levied and sales thereunder to be made in accordance with the regulations governing sales under executions issued upon common law judgments. PUBLIC REVENUE; TAXATION, Ad Valorem-Transfer of tax executions. September 16, 1939 Hon. Casey Thigpen Gibson, Georgia This will acknowledge receipt of your letter of recent date in which you inquire if there is any decision or law holding a county will have to reimburse the purchaser of a tax fi. fa. in the event such purchaser is unable to collect because of the tax fi. fa. being worthless. The law with reference to the transfer of tax executions is set out in Section 92-7602 of the Georgia Code of 1933 which provides as follows: "Whenever any person, other than the person against whom the same has issued, shall pay any execution issued for State, county, or municipal taxes, the officer whose duty it is to enforce said execution shall, upon the request of the party paying the same, transfer said execution to said party; and said transferee shall have the same rights as to enforcing said execution and priority of payment as might have been exercised or claimed before said transfer; Provided, said transferee shall have said execution entered on the general execution docket of the superior court of the county in which the same was issued, and if the person against whom the same was issued resides in a different county, then also in the county of such person's residence, within 30 days from said transfer, and in default thereof such executions shall lose their lien upon any property which has been transferred bona fide and for a valuable consideration before the record and without notice of the existence of such execution. " I have been unable to find any statute or decision of this State authorizing or requiring a county to reimburse the transferee of a tax :tl. fa. in the event the execution proves worthless. It seems to be a case in which the rule of caveat emptor should apply, and the purchaser in order to protect himself probably should have investigated the title to the property returned for taxes before purchasing the tax execution. I seriously question whether if there were such 592 a law it would be constitutional in view of Article 7, Section 6, Paragraph 2 of the Constitution of this State which provides: "The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational purposes; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay sheriffs and coroners, and for litigation, quarantine, roads and expenses of courts; to support paupers and pay debts heretofore existing; to pay the county police, and to provide for necessary sanitation, and for the collection and preservation of records of birth, death, diseases, and health, and to pay county agricultural and home demonstration agents; to provide for payment of old-age assistance to aged persons in need, and for the payment of assistance to the needy blind, and to dependent children and other welfare benefits, provided that no person shall be entitled to the assistance herein authorized who does not qualify for such assistance in every respect in accordance with enactments of the General Assembly which may be in force and effect prescribing the qualifications for beneficiaries hereunder. " You must understand of course that anything which might have been said in this letter is simply an expression of my personal views on the matter and not binding upon any one, since the Attorney General is not authorized by law to render an official opinion except when so requested by the Governor or by the officials of the Executive Department of this State in matters affecting the interests of the State. I regret very much that I am unable to assist you in this matter, and I want you to know that I am glad to be of service to you whenever it is within my power to do so. PUBLIC REVENUE; TAXATION, Ad Valorem-Sheriff's fees on tax executions. December 30, 1939 Honorable J. B. Chastain Blue Ridge, Georgia This will acknowledge receipt of your letter of December 20 in which you ask the following question: "I am writing you for information in regard to fees for serving tax fi. fas. and nulla bona. I am deputy sheriff and want to know the correct fees allowed by law. " The Attorney General is authorized to render an official opinion only when so requested by the Governor or by officers of the Executive Department upon matters directly affecting the State's interests. Therefore, anything which might be said in response to your inquiry must be considered as merely an expression of my personal views and not binding upon anyone. Your attention is called to Section 92-8003 of the Georgia Code of 1933 which provides as follows: "If a tax execution for less than $100 is levied by a sheriff, his fee for said levy shall be that allowed constables." Section 24-820 which enumerates the fees of constables contains the following: "Returning nulla bona 50~. " For tax executions in the amount of $100 or more the sheriff would be entitled to the fees set forth in Section 24-2823 of the Code which provides as follows: "Service and return of nulla bona $1. " 593 It should be pointed out, however, that the fees hereinabove referred to are payable only when the fi. fa. is collected, the law contemplating that such fees are to be paid out of the funds arising from the collection of the taxes. Section 92-8002 of the Code provides as follows: "Tax collectors shall be allowed a fee of 50t for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendants. " In the case of Keen v. Rouse, 44 Ga. 601, it was held: "A sheriff is not entitled to costs on tax fi. fas., whether for State or county taxes, unless the same be collected from the defendants." Judge Montgomery writing the opinion for the Court cited Section 890 of the Code (now Section 92-8002) as authority for the ruling of the Court and said: "Section 890 of the Code provides that no sheriff shall receive costs on any tax fi. fa., unless the same be collected from the defendant. The necessary inference is, if he fails to collect them from the defendant, the service must go unawarded. " This case has never been overruled or modified, so far as we are able to find. PUBLIC REVENUE; TAXATION, Ad Valorem-County authorities have no power to waive interest on tax executions. September 8, 1939 Hon. Casey Thigpen Representative, Glascock County Gibson, Georgia I am pleased to acknowledge receipt of your letter of September 6th, relating to the waiver of interest on tax executions by the Board of County Commissioners of your County. You, in the beginning of your letter, quoted from my letter of May 22nd as follows: "While, under the law, the Attorney General cannot render official opinions upon county matters, yet if any problem arises in connection with your county legal affairs whereby I can assist you in investigating the authorities and in rendering other service, I want you to know that it will be a pleasure for me to do so. " It is needless for me to add anything further to this statement. In pursuance of this policy which I have adopted since assuming the duties of the office of Attorney General, I am glad to reply to your letter as a matter of information. Code Section 92-7601 is as follows: "Executions on which interest allowed; Rate; Effect of imposition of penalties. -All executions issued for taxes due the State, any county thereof, or any municipal corporation therein, whether issued on assessments for permanent improvements of streets or sewers of said municipal corporation, or otherwise, shall bear interest at the rate of seven per cent. per annum from the time fixed by law for issuing the same: Provided, that this section shall not apply to taxes or tax fi. fas. issued by any municipal corporation imposing penalties for failure to pay taxes." In the case of Harrison v. Southern Railway Company, 44 Ga. App., pp. 49-53 inclusive, on page 52 the Court in deciding this case made the following statement: "This section might, perhaps, be interpreted as imposing upon the Ordinary some clerical or ministerial duties as to correcting errors in regard to taxes, but it can not be construed as conferring upon that official the 594 power to enter into a contract of compromise whereby the taxpayer is relieved of any portion of taxes which have lawfully been assessed against him." The Supreme Court of the State of Georgia in the case of Georgia Railroad and Banking Company v. Wright, 125 Ga. 589, pages 589-617 inclusive, in deciding this case, on page 610, used the following language: "If a taxpayer tenders the amount of taxes due from him before an execution is actually issued no interest on the tax can lawfully be required of him, but if he fails to pay his taxes until after the execution is issued he must pay the interest; and the question is, from what time shall the interest be calculated?" You have, of course, studied the Code Section and the cases I have cited in this letter, but to my mind they form a correct basis upon which you, as County Attorney, can under the authority of your office advise your Commissioners. I again wish to assure you that it is a pleasure to reply to your letter and I hope that this reply will be of some assistance to you in ironing out any difficulties which have arisen between the officials of your County. My experience has always been that it is safe to follow the Code and the decisions of our Appellate Courts on questions presented. PUBLIC REVENUE; TAXATION-State Revenue Commissioner has no power to waive interest on taxes due the State. October 27, 1939 Hon. T. Grady Head State Revenue Commissioner I have your letter of October 23rd in which you ask the following question and request a ruling on the same from me as Attorney General. "Is there any authority of law for the State to waive its claim for interest on taxes where it appears that the tax collector or tax commissioner, or other county authorities handling delinquent taxes, have actually collected interest on such delinquent items, and where settlement has not as yet been made with the State? Can the State, to any extent, in any amount, waive any claim for interest actually collected on state taxes?" Section 92-5001 of the Code provides as follows: "Rate of interest. All taxes due the State or any county thereof remaining unpaid on December 20th in each year shall bear interest at the rate of seven per cent per annum from said date, and the several tax collectors shall collect the interest on such unpaid taxes and account for same in their final settlements. " This provision of law clearly makes it the duty of the tax collector to collect the interest on unpaid taxes and he is further obligated to account for such collection of interest in his final settlement. Section 92-5005 of the Code provides: "Interest payments by tax collectors. All interest so collected by the several tax collectors shall be by them paid to the State and county at the time and in the manner that taxes are required to be paid. " These sections make it very clear that it is mandatory upon the tax collector to report all interest that may be collected by him in his official capacity to the State. Section 92-5006 provides: 595 "The failure or refusal of any tax collector to carry out any of the provisions contained in this chapter shall constitute malpractice in office, and a conviction therefor shall subject the offender to removal from office." There is no statute authorizing any tax collector or tax commissioner of the State of Georgia to waive interest due on tax executions of the several counties of the State and the State of Georgia. It necessarily follows that you, as Commissioner of Revenue, have no authority to waive interest on delinquent taxes due the State nor have you authority to authorize such a waiver on the part of tax collectors or tax commissioners of the several counties of the State. PUBLIC REVENUE; TAXATION-State Board of Tax Appeals; employment of reporter to take testimony. November 6, 1939 Honorable T. Grady Head, Commissioner Department of Revenue This will acknowledge yours of the 1st instant inclosing statement of Honorable J. H. Duggan, Jr., in the amount of $54.60 for services in taking testimony before the State Board of Tax Appeals in the cases of Retail Credit Company v. T. Grady Head and J. Bulow Campbell v. T. Grady Head. You request my opinion as to whether or not in the discharge of its duties the Board of Tax Appeals is authorized to employ a reporter, and whether or not this bill and such similar bills should be paid by the Revenue Department. Sections 22 and 23 of the Act approved January 3, 1938 (Georgia Laws Extra Session 1937-38, pages 77, 90) provide: "Section 22. Power to Employ Assistants, Incur Expenses. The Board is hereby authorized to employ a secretary and such other personnel as may be required, and to incur such other expenses, within the limits of its appropriation, as in its discretion may be necessary to give effect to the provisions of this Act. "Section 23. Appropriation. There is hereby set aside from the funds appropriated for tax administration an amount (to be specified by the Governor) sufficient to pay the necessary expenses for operating the Board of Tax Appeals for the fiscal years ending June 30, 1938 and June 30, 1939." It will be noted from Section 22 that two facts must exist before the employment of personnel or the incurring of other expenses by the Board is authorized, to wit: 1. The employment of such personnel or the incurring of other expense must be necessary or required in order to give effect to the provisions of the Act; and 2. The employment of such personnel must be done "within the limits of its appropriation. " (Emphasis supplied.) If it has been determined by the State Board of Tax Appeals that the services of Honorable J. H. Duggan, Jr. in reporting the testimony adduced in the cases of Retail Credit Company v. T. Grady Head and J. Bulow Campbell v. T. Grady Head, were necessary to give effect to the provisions of the Act and that, as a necessary expense in connection with the operation of the Board of Tax Appeals, his employment to report the testimony in the said cases was "within the limits of its appropriation", the State Board of Tax Appeals rather than the State Revenue Department would be authorized to pay Mr. Duggan for the services rendered provided, however, funds have been legally set aside to the Board of Tax Appeals from the monies appropriated for tax administration sufficient in amount to pay the same. 596 While the literal language of Section 23 indicates that the appropriation or allocation made therein expires June 30, 1939, when it is considered that this section must be treated as an amendment to the General Appropriations Act under Section 30 of which it is provided: "This Act shall apply for the fiscal years ending June 30, 1938, and June 30, 1939, and to each and every year thereafter until amended or repealed by laws as appropriated for the fiscal year ending June 30, 1939, " I am forced to the conclusion that the effect of Section 30 is to continue in force and effect the appropriation, if any is specified by the Governor, to pay any expense incurred by the Board of Tax Appeals in the employment of a secretary or other personnel required. Section 22 vests a discretion in the Board to determine what personnel and expense is necessary "to give effect to the provisions of" said Act, and unless the Board has abused its discretion in this respect its determination of the matter would be final. Since the bill submitted is not payable by the State Department of Revenue, but by the Board of Tax Appeals, if the conditions set out above are shown to exist, it would be improper for me to deal with the question of the Board's power in the premises. In other words, the question as to whether the Board of Tax Appeals has the authority to take testimony when an assessment made by the Commissioner of Revenue is appealed to it and has power to incur an expense in having such testimony reported is a question which should properly be propounded by the Board of Tax Appeals. I think it sufficient answer to your inquiry as to whether "this bill and such similar bills should be paid by the Revenue Department" to advise that since the Legislature has made a special provision for the payment of such bills by the Board of Tax Appeals there is no liability resting upon the Revenue Department to pay the same. PUBLIC SAFETY, DEPARTMENT OF-Power to promulgate rules in respect to the right of way at intersections of highways or public roads. May 30, 1939 Hon. R. Howard Gordon Attorney at Law Danielsville, Georgia I am pleased to acknowledge receipt of your letter of May 25, 1939, inquiring as to whether or not there is any law with reference to stop signs at intersections of secondary highways with main highways. Of course you are aware of the fact that I am not in position under the law to render you an official ruling, but I am delighted to give you the benefit of a recent enactment of the Legislature which I think will be applicable to your situation. At the 1939 session of the General Assembly an Act known as Senate Bill No. 43 was passed, making certain changes in the traffic laws of this State. Section 3 of this Act is as follows: " (a) The Department of Public Safety is authorized to fix rules in respect to the ri.ght of way at intersections of said highways or public roads outside of municipalities and to promulgate other reasonable safety rules in respect thereto, and to give notice of same by proper signs erected at or near said intersections. Said signs to be erected and maintained by Highway Department Maintenance Department. 597 " (b) Every driver of a motor vehicle and every motorman of a street car shall stop at such stop signs as shall be erected or made by the Department of Public Safety at the approach of such intersection except when directed to proceed by police officer or traffic control signal. " PUBLIC SAFETY; GEORGIA STATE PATROL-Location of headquarters. April 30, 1940 Hon. Lon Sullivan Commissioner Department of Public Safety I am pleased to acknowledge yours of the 26th instant requesting my opinion upon the following questions: 1. "Would it be permissible, under our Act, to operate the state headquarters of the State Patrol in any other city than Atlanta?" Answer: This question involves a proper construction of Section 10 of Article 2 of the Act creating the Department of Public Safety (Georgia Laws 1937, pp. 322, 334) , which reads: "The Department of Public Safety is authorized to provide comfortable and accessible headquarters for the Commissioner and Deputy Commissioner of the Department of Public Safety and for the various Divisions thereof, in the State Capitol, if there be available space, and if not the Department of Public Safety is authorized and empowered to provide.such quarters and offices by purchase, lease, or construction, any contract made or title acquired to be made in the name of and on behalf of the State of Georgia. ''In the event it becomes necessary to purchase, lease or construct such offices and headquarters, the location thereof shall be at some place in the State of Georgia, conveniently accessible to the State Capitol. " It will be observed that this section of the statute clearly authorizes the Department of Public Safety to provide comfortable and accessible headquarters for the Commissioner and Deputy Commissioner of the Department of Public Safety, and for the various Divisions, and in the exercise of this power the Department of Public Safety, composed of the Governor of Georgia, as Chairman, the Chairman of the State Revenue Commission, the Chairman of the Highway Board, the Comptroller General of the State, and one other memJ:?er to be selected by the Governor from a list of ten nominations made by the Georgia Peace Officers Association (see Section 1 of Article 1 of the Act) , must first determine whether there is "available space" in the State Capitol which would afford "comfortable and accessible headquarters". If the Department of Public Safety has determined that such space is available in the State Capitol, it would be mandatory under the statute for the headquarters to be located "in the State Capitol". On the other hand, if the Department of Public Safety has found that such space is not available in the State Capitol, the last paragraph of Section 10 clearly vests in the Department of Public Safety the authority and discretion to locate the headquarters "at some place in the State of Georgia conveniently accessible to the State Capitol". The only limitation imposed by the statute upon the exercise of the power to make a choice of the location of the headquarters at some place other than in the State Capitol, is that whatever place is chosen must be "conveniently accessible to the State Capitol". Therefore, the question really narrows itself 598 to the meaning of the phrase "conveniently accessible to the State Capitol". That the General Assembly did not intend to limit the location of headquarters to the "State Capitol" is apparent from the language of Section 10. Had such been the intention of the General Assembly, all of the language of Section 10 except the following: "The Department of Public Safety is authorized to provide comfortable and accessible headquarters for the Commissioner and Deputy Commissioner of the Department of Public Safety, and for the various Divisions thereof, in the State Capitol", may well have been omitted. If, however, we are to observe that rule of construction which requires that all of the words of the statute must be given due weight and meaning (See Falligant v. Barron, 133 Ga. 92; Roberts v. State, 4 Ga. App. 207; City of Macon v. Georgia Power Company, 171 Ga. 40; Section 102-102 (9) of Code of 1933), we must indeed attribute full meaning to the other language of Section 10 which plainly provides that in the event it becomes necessary to purchase, lease or construct offices and headquarters, the location thereof "shall be at some place in the State of Georgia, conveniently accessible to the State Capitol". We fail to find where our appellate courts have ever construed the meaning of the phrase "conveniently accessible" or the word "accessible". In the absence of any construction, and in accordance with the rule of statutory construction which requires that "the ordinary signification shall be applied to all the words" in the construction of all statutory ,enactments (Code Section 102-102 (1)), we may well adopt the definition given in Webster's New International Dictionary of these terms. "Convenient" is therein defined as "suited to one's easy performance of some act or function; fit or adapted; suitable", and the word "accessible" is defined as "easy of access or approach; approachable". And in 1 C. J. S., Adj. Law, 412, the definition given in Webster's New International Dictionary is quoted with approval. See also American Surety Company of New Jersey v. Sandberg, 225 Fed. 150, 155; U. S. Fidelity & Guaranty Co. v. Central of Georgia R. Co., 147 So. 891, 87 A. L. R. 1028. Accordingly, I am of the opinion that the State Department of Public Safety, after finding that there is not available in the State Capitol comfortable and accessible headquarters, may purchase, lease or construct such headquarters at any place in the State of Georgia which is suited to the easy performance of the acts and functions of the Commissioner, Deputy Commissioner and the various Divisions of the Georgia State Patrol, and which is easy of access or approach by such officers and the general public. In determining the question of accessibility of any place under consideration as a location for headquarters or offices of either of the three Divisions of the State Department of Public Safety, the members of the Department may properly take into consideration the present-day methods of travel and communication, the geographical location of the place under consideration with respect to population density, as well as factors such as the availability of comfortable quarters at reasonable rental or purchase prices. In the exercise of their discretion in the matter of choosing such places, the statute gives the Board wide latitude, and the fact that good roads and ample communication systems now make places once considered remote easy to reach in a minute or two by telephone, or in an hour or two by travel, further enlarges the latitude of their discretion in making the choice. 2. "Would it be permissible to operate the Drivers' License Bureau and the Commissioner's revocation and suspension unit in any other city than Atlanta?" 599 Answer: The Drivers' License Bureau is provided for in Section 2 of Article 1, which specifies it as one of the Divisions of the Department of Public Safety. So much of said section as is pertinent to a consideration of this question provides: "The Department of Public Safety shall be in charge of, shall administer as required by law, and shall provide such other rules and regulations as may be necessary for the following divisions of the Department of Public Safety which are hereby created under the authority of this Act: . . . (3) A Division which shall administer the proper licensing of operators and chauffeurs of motor vehicles, the duties of which Division may be performed in whole or in part by the Georgia State Patrol. " It will be noted that no attempt is made in this section of the Act, nor in any other part of the Act, to prescribe any definite location for this Division of the Department, and I am, therefore, of the opinion that the Department of Public Safety may, in its discretion, locate the offices of said Division at any place in the State which is "conveniently accessible to the State Capitol", if there is no available space in the State Capitol for the location of the offices of said Division. 3. "Would it be permissible to maintain a permanent office in Atlanta for the issuance of drivers' licenses and for information purposes, but operate the other divisions of the Department in cities other than Atlanta but within an hour or an hour and a half drive from Atlanta?" Answer: The three divisions created by Section 2 of the Act are: (1) a Uniform Division to be known as the Georgia State Patrol, (2) a division of criminal identification, Detection, Prevention, and Investigation, and (3) a division for the licensing of operators and chauffeurs of motor vehicles. Section 10 of the Act, as explained above, vests the Department of Public Safety with a discretion as to the location of the offices for the various Divisions at any place in the State of Georgia conveniently accessible to the State Capitol where it is first found by the Board that available space for such offices or headquarters does not exist in the State Capitol. Therefore, it would be permissible for the Department to locate and maintain a permanent office in Atlanta for the issuance of drivers' licenses and for information purposes. Likewise, if the State Department of Public Safety finds that offices in the State Capitol are not available, it may provide for the location of the various other Divisions of the Department in cities other than Atlanta if such cities are "conveniently accessible to the State Capitol". PUBLIC SAFETY; GEORGIA STATE PATROL-Duties; jurisdiction. September 19, 1940 Honorable Frank Bane Executive Director Council of Governments 1313 East Sixtieth Street Chicago, Illinois This will acknowledge receipt of your letter of September 10 inclosing a questionnaire dealing with the extra territorial powers of State and local police. The Act approved March 19, 1937, (Georgia Laws 1937, pages 322, 355) which creates the Uniform Division of the Department of Public Safety of this State, 600 which division is designated as the "Georgia State Patrol, " defines the powers and duties of the Georgia State Patrol as follows: "It shall be the primary duty of the Uniform Division of the Department of Public Safety designated as the 'Georgia State Patrol, ' to patrol the rural and public roads and highways throughout this State, to prevent, detect and investigate criminal acts, and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, and to safeguard the life and property of the public. "They are empowered to act in cooperation with any other law enforcement agency of this State or of any city, county or other division thereof, and shall cooperate with local authorities in preventing the commission of criminal offenses, or in detecting and apprehending those charged with offenses against the criminal laws of this, or any other State, or the United States. "They shall not exercise any power of arrest except for offenses arising for violation of traffic laws, or laws regulating the use, ownership and control of motor vehicles, or for offenses committed upon the highways of the State. Provided, that upon request of the governing authorities of the municipality or of the sheriff of any county or of the judge of the superior court of any county of this State, the Georgia State Patrol shall be authorized to render such assistance as such authorities may request in any other criminal case. " After further authorizing the Georgia State Patrol to make arrests within the corporate limits of any village, town or city in the State where the person or persons committing or suspected of committing a criminal offense is a fugitive or is likely to be a fugitive on account of a crime committed and the assistance of the officers of the municipality cannot be readily obtained before the escape of the fugitive, the act further provides: "The Uniform Division of the Department of Public Safety known as Georgia State Patrol shall have jurisdiction throughout the State of Georgia and in any county thereof, but they shall not exercise any power to suppress rioting or labor strikes or picketing, as provided by law within the limits of a corporate municipality, or in any county of this State, except upon the direction of the Governor of this State upon request made by the governing body of such municipality or county. " I deemed it necessary to give you the above summary before dealing specifically with the questions set out in the questionnaire since the Georgia State Patrol deals primarily with offenses appertaining to public safety as it relates to the rural and public roads and highways of the State but may be called to the assistance of the officers of a municipality or county in certain cases. There is no statute of this State insofar as I am able to find authorizing the Governor to call local police into State service for limited periods to deal with emergency conditions or authorizing the State police or any similar body of State officials to call local police to their aid for the purpose of fresh pursuit of offenders or suppressing riots and disorders or threats to the public peace. I assume you do not have in mind in connection with question No. 2 the general power given by Section 27-206 of the Georgia Code of 1933 to officers seeking to execute the penal warrants placed in their hands to summon to their assistance any of the citizens of the neighborhood or county or the right given by Section 27-211 of the Code to a private person to arrest an offender if the offense is committed in his presence or within his immediate knowledge; or to arrest upon reasonable and 601 probable grounds of suspicion if the offense is a felony and the offender is escaping or attempting to escape. In connection with question No. 4 there is no power given by statute in this State for local police to exercise their general powers outside of the territorial limits of the local government which they regularly serve. However, your attention is called to Section 27-209 of the Code which provides as follows: "An arresting officer may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the accused with the warrant under which he was arrested, to the county in which the offense was alleged to have been committed, for examination before any judicial officer of that county. " In Coker v. The State, 14 Ga. App. 606 (81 SE 818) , it was held that a police officer of a municipality has no authority as such to serve a warrant in a county outside the municipality, the court stating that the code section herein above quoted was evidently intended to embrace only such officers as are authorized under the State law to execute warrants, and was not intended to embrace such officers as were constituted arresting officers by virtue of the laws of a municipality. There is no statute insofar as I have been able to find im.posing liability upon the State or any county of the State for the torts committed by its police officers and in the absence of such statute the general rule would apply that neither the State nor the county would be liable for the torts of such officers. I do not have any knowledge of the temporary use by the local governments of this State of police regularly employed by another unit of local government. PUBLIC SAFETY; GEORGIA STATE PATROL-Power of arrest for violations of traffic laws; Civil Aeronautics Administration(motor vehicles not exempt from speed laws. .~ October 31, 1940 Captain D. Frank Simmons, Jr. State Department of Public Safety This will acknowledge receipt of your letter of October 21st in which you state that your Department has been requested by the Civil Aeronautics Ad-' ministration to permit vhicles' held and operated by the Administration to be operated at a speed in excess of the legal Georgia speed limit. You enclose with your letter a communication to you from Hon. Ed Nilson in which it is pointed out that Atlanta is the headquarters of the CAA for several states, and due to the shortage of personnel and aeroplanes, the officers and employees of the CAA are compelled to use automobiles to cover a large territory. It is further pointed out that the functions of the CAA are within the scope of national defense since those students who complete the secondary or advanced phase of training, are obligated for further service in the Army or Navy Air Corps. You ask me to investigate this matter and to notify you as to whether or not the officers and employees of the CAA are exempted from the provisions of the Georgia speed law. Section 2 of the Act approved March 24, 1939, (Acts of 1939, pp. 295 to 303): provides in part as follows: "Restrictions as to speed: (a) No person shall operate a motor vehicle upon any public street or highway at a speed that is greater than is reason- able and safe, having due regard to the conditions then existing, including 602 the width, grade, character, traffic, and common use of such street or highway, or so as to endanger life or limbs, or property in any respect whatsoever. "(b) Subject to the foregoing limitations operators of motor vehicles upon the public streets and highways of this State are authorized to operate them up to but not exceeding the speed limits provided in the following classified tabulation: ... Provided, however, that all passenger motor vehicles operated on the public streets and highways of this State and having pneumatic tires are authorized to operate at a speed up to but not exceeding 55 miles per hour . . . "(c) Whenever the Department of Public Safety shall determine, upon a basis of an engineering or traffic survey, that any speed herein above authorized is greater than is safe under the conditions found to exist on any segment of a public street or highway, said Department shall fix, determine and declare special speed restrictions thereat and therefor, and may put same into .effect by erecting proper highway signs, giving notice of said restrictions at such place or places. "(d) The speed limitations set forth in this article shall not apply to authorized emergency vehicles when responding to emergency calls or when in immediate pursuit of an actual or suspected violator of the laws of this State, provided, however, that all such emergency vehicles shall observe the limitations hereinbefore imposed at all times other than those specified, in this paragraph, and this provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the public streets and highways, nor shall it protect the driver of any emergency vehicle from the consequences of reckless disregard of the safety of others. " It will be noted that subsection (c) of Section 2 does not authorize the Department of Public Safety to fix the speed limit on any segment of a public street or highway at a figure greater than that fixed by subsection (b) of Section 2. I find no provision of the Act approved March 24, 1939 or of the Act creating the Department of Public Safety (Acts of 1937, pages 322 to 355) as amended by the Act approved March 17, 1939 (Acts of 1939, pages 135 to 144) which would authorize the Department of Public Safety, the Commissioner or any officer or employee of that Department to exempt from the provisions of the Act approved March 24, 1939, any vehicles not specifically exempted by the provisions of that Act. In the absence of a statute vesting that power in the Department of Public Safety, the power does not accrue to such department or any officer thereof. See, Walker vs. Georgia Railway and Power Co. 146 Ga. 655, and the cases therein cited. Even if the Department of Public Safety sought to pass a regulation exempting certain operators from the provisions of Section 2 (b) of the Act approved March 24, 1939, such regulation or ruling would not be binding upon the law enforcement officers of the local subdivisions of this State. The question therefore resolves itself into a determination of whether the officers and employees of the CAA are exempted from the provisions of Section 2 (b) of the Act by the express exemption provided in Section 2 (d) or by reason of the fact that they are officers of an agency of the United States government engaged in the performance of a necessary governmental function. Section 2 (d) exempts "authorized emergency vehicles when responding to emergency calls or when in immediate pursuit of an actual or suspected violator 603 of the laws of this State. " The purpose of the Act of 1939 fixing the maximum speed limit of vehicles upon the highways of this State was to protect all persons using the State highways. It is a public safety measure and must receive a reasonable and practical interpretation to that end. Smeltz~r vs. Atlanta Coach Company, 44 App. page 53. It is apparent therefore, that the provisions of the Act excepting the operators of certain vehicles from the maximum speed limit fixed by the Act should be strictly construed unless to do so would violate the legislative intent. Statutes making exceptions to general rules must be strictly construed. Williams vs. Seaboard Airline Railway Company, 33 App. 164. Thus, in Hudson vs. Carton 37 App. 634, it was held that where the State law limiting speed of motor vehicles approaching a sharp curve to not exceeding 10 miles per hour contains no specific provisions excepting from its operation police officers in pursuit of a violator of the law, such exception did not exist. The Act of 1939 does not specifically define the phrase "authorized emergency vehicles" which are exempted from the maximum speed limitations fixed by that statute. The statutes of a number of other States which exempt emergency vehicles from the speed laws of those States do specifically define the phrase "emergency vehicles. " Such definitions generally include police or private ambulances answering emergency calls, vehicles of public fire departments, responding to fire alarms, and police department vehicles in pursuit of law violators. In those states where emergency vehicles are defined by statute, the tendency has been to hold that a vehicle, in order to be classified as an emergency vehicle, must come within the express provisions of the statute unless such a ruling would do violence to the legislative intent. Thus, in the case of Falasco vs. Hulen 44 Pac. 2nd 469, it was held that in an action for injury sustained when an automobile in which the plaintiffs were riding on the highway was struck by an approaching automobile traveling 60 to 65 miles per hour, the fact that the approaching motorist was a township constable did not make his automobile an "emergency vehicle" within the vehicle act providing that speed regulations should not apply to authorized emergency vehicles, and this was true although the township constable was conveying in the automobile an injured child to the hospital. The California statute exempted "every vehicle publicly owned and operated by a police or fire department or traffic law enforcement officer in responding to emergency calls or on traffic patrol duty, "and further provided that vehicles responding to emergency calls by a State or county forest ranger, in case of fire, also, any fighting equipment; likewise, any publicly owned ambulance or privately owned ambulance used in responding to emergency calls; and likewise, emergency repair vehicles, are not limited by the speed regulations of the act. The court said: "A mere reading of the section shows that the automobile driven by Hulen does not come within the qualifications of an authorized emergency act. The mere fact that he was a constable in township No. 3 of Merced county, does not make his automobile an emergency vehicle. " In Dowler vs. Johnson 121 N. E. 487 (N. Y.), the New York Court of Appeals held that a fire department automobile driven by a fireman assigned to the duty of inspecting some new fire houses in Brooklyn was not exempt from the ordinary limitations in respect to speed since it was not "proceeding to a fire" or "responding for emergency work in case of fire,. 604 accident, public disaster or impending danger" within the provisions of the New York statute. Thus, it appears to be the general weight of authority that the term "emergency vehicle" means vehicles of fire departments, law enforcement officers .or ambulances, and that the phrase "authorized emergency vehicles" was used .in that sense in the Georgia Act seems clear in view of the fact that the Act provides that the speed limitation fixed by the Act should not apply to "authorized" emergency vehicles "when responding to emergency calls or when in immediate pursuit of an actual or suspected violator of the laws of this State. " I am unable to find any case in which vehicles used for the purposes set forth in your letter have been held to be emergency vehicles so as to be exempted from State speed laws, and I seriously doubt if such a construction should be placed on the Georgia Act in view of the fact that the purpose of the Act was to promote the public safety. However, there are some instances in which officers or employees of the United States Government may be exempt from State laws fixing the speed at which vehicles may travel upon the State Highways. Thus, in the case of William E. Johnson vs. State of Maryland 65 L. Ed. 126, the United States Supreme Court in holding that while an employee of the United States did not secure a general immunity from state law while acting in the course of his employment, the state could not require a postoffice employee to cease driving a government motor truck in the transportation of mail over a post road until he should obtain a license by submitting to examination before a state official and paying a fee, said: "Of course, an employee of the United States does not secure a general immunity from state law while acting in the course of his employment. That was decided long ago by Mr. Justice Washington in United States vs. Hart, Pet. C. C. 390, Fed. Cas. No. 15, 316; Opinions Attorney General554. It very well may be that, when the United States has not spoken, the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment, -as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets. Comm. vs. Closson, 229 Mass. 329, L. R. A. 1918C, 939, 118 N. E. 653. This might stand on much the same footing as liability under the common law of a state to a person injured by the driver's negligence. But even the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States, acting under and in pursuance of the laws of the United States. Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep, 658. "It seems to us that the immunity of the instruments of the United States from State control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer, upon examination, that they are competent for a necessary part of them, and pay a fee for permission to go on." In State vs. Burton 103 Atl. 962,. the Supreme Court of Rhode Island held that a member of the United States government Naval Reserve force driving a motor vehicle along a city street in the performance of an urgent duty to deliver a dispatch under instructions from his superior officer,. is not in time of war amenable to the statute of that state regulating the speed of motor vehicles, the state laws being subordinate to the exigencies of military operation by the federal government in time of war. 605 It was further held however, that a person in the military service of the United States in time of war may be prosecuted for violating a state law regulating the rate of speed of motor vehicles, where the violation thereof was not a matter of military necessity. The reasoning upon which this decision was based was that under the Constitution of the United States the conduct of war vests wholly in the federal government, and any state law, the operation of which would hinder that government in carrying out such constitutional power, was during the exercise of the power, suspended as regards the national government and its officers who were charged with the duty of prosecuting the war. In the case of Hall vs. Commonwealth 105 S. E. 551, it appeared that the defendant who was employed by the postmaster general to operate a government owned motor truck in transporting United States mail over a route designated by the postmaster general extending from Washington D. C. to Winchester, Virginia, under a time schedule fixed by the postmaster general was charged with operating his motor truck at a rate of speed in excess of that fixed by the Virginia statute. The Supreme Court of Virginia held that the statute fixing the speed limit in an incorporated city or town of that State was a valid exercise of the police power, did not conflict with the United States statutes relating to the duties of the postmaster general as to post routes and fixing the time schedules, and must be obeyed by postal employees transporting mail, especially where the schedule fixed did not require an employee driving an automobile truck to exceed the State speed limits. The court pointed out that the evidence showed that the time schedule required by the postmaster general did not require driving at a rate in excess of that allowed by State law. After citing the Burton case and the Johnson case, supra, and distinguishing those cases, the court said: "So far as appears from the record of the case before us, 'the United States has not spoken' on the subject of the speed at which it was the duty of the accused to travel in such way as to make the provisions of the Virginia statute in question in any way interfere with the performance of the Federal duties of the accused. " While I am in full accord with the national defense program and recognize the necessity for speed in its completion, I do not believe that the Department of Public Safety has the right to exempt from the provisions of the Act of 1939 fixing the speed limits at which vehicles may travel upon the highways of this State, vehicles operated by officers or employees of the CAA; nor do I believe that such vehicles are included within the provision of the Act exempting "authorized emergency vehicles" from its operation. To adopt such a construction would be wholly inconsistent with the public safety since it would necessitate the exemption of every person connected with the national defense program. Although the operation of the Georgia statute fixing the maximum speed at which vehicles may travel on the public streets and highways of this state may be suspended as to officers and employees of the United States government engaged in the performance of their official duties, in a case "where the United States has spoken, " and such officers or employees cannot possibly perform the duties assigned to them without violating the provisions of the Georgia statute, the facts set forth in your letter and the one from Mr. Nilson which you enclose are not sufficient to authorize me to arrive at this conclusion. In any event this would be a question of fact which it would not be proper for me to determine. 606 PUBLIC SAFETY; GEORGIA STATE PATROL-Limitation of power to arrest. July 9, 1940 Hon. Lon Sullivan Commissioner Department of Public Safety I am pleased to acknowledge receipt of your letter of July 6, 1940, in which you ask my opinion as to whether or not members of the Division of Criminal Identification, Detection, Prevention and Investigation would be authorized to make arrests and exercise police powers. Under the Public Safety Act, it seems that the members of the Uniform Division of the Department of Public Safety are vested with the authority to make arrests and exercise police powers. Even this authority in the Uniform Division of the Department of Public Safety is limited. Section 14 of Article II of this Act (Acts of 1937, pp. 322, 337) provides in part as follows: "They shall not exercise any power of arrest except for offenses arising for violation of the traffic laws or laws regulating the use, ownership and control of motor vehicles, or for offenses committed upon the highways of the State." Then in addition to this, they are authorized to make arrests in connection with other law enforcement agencies, or to make an arrest where the person committing or suspected of committing criminal offense is a fugitive or likely to be a fugitive, and the assistance of the arresting officer of the municipality cannot be obtained before the escape of the fugitive. So it seems clear that the authority to make arrests by members of the Department of Public Safety is lodged entirely in the Uniform Division of the Department of Public Safety, and unless the members of the Division of Criminal Indentification, Detection, Prevention and Investigation happen to be members of the Uniform Division, they would not be authorized to make an arrest. Besides, I do not think that the Commissioner of the Department of Public Safety is empowered under the law to deputize one who is not a member of the Uniform Division to make an arrest. Under Section 1 of Article III of the Public Safety Act (Acts of 1937, pp. 322, 340) , the duties of the members of the Division of Criminal Identification, Detection, Prevention and Investigation are fully set forth. You will note in reading this section that the power to make arrests is not given, and I do not think that their powers could be enlarged by any construction of the Public Safety Act. The only instances in which a member of the Division of Criminal Identification, Detection, Prevention and Investigation could legally make arrests would be in the capacity of a private person. This authority is granted under Section 27-211 of the Code of 1933, which is as follows: "A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable ground of suspicion." But in the event such member of this Division did make an arrest, it would be in his capacity as a private person and not as a member of the Division of Criminal Identification, Detection, Prevention and Investigation. 607 PUBLIC SAFETY; DIVISION OF CRIMINAL IDENTIFICATION-Power to take finger prints and photographs. February 14, 1940 Mrs. F. M. Scott Juvenile Court Officer Juvenile Court of Floyd County Rome, Georgia Your fine letter of the 5th instant would have received my earlier attention but for the fact that I have been out of the city for several days on official business for the State and, since my return, have been unusually pressed with official State business which accumulated in my absence. I have made some study of the problem submitted in your letter, but I find that there is a wide diversity of opinion among the courts with reference to the question of the right of police officers and court officials to take fingerprints and photographs of an accused before trial, or to retain the same in police records after acquittal or discharge of the accused. There is, in 83 A. L. R., page 127, an exhaustive annotation of the various cases which have arisen upon the subject, some of these cases clearly recognizing the right of police officials and other court officers to take fingerprints and photographs of persons under arrest, and retain them after the trial, and other cases holding that no such right exists where there is no statute upon the subject. The Maryland Court of Appeals held that it was unlawful, though before conviction, to photograph and measure under the Bertillion System a person arrested on a felony charge. Downs v. Swan, 111 Md. 53. In Maryland no statute existed authorizing such means of identification. The Supreme Court of Indiana reached a similar conclusion in State ex rel. Bruns v. Clausmeier, 154 Ind. 599, and O'Brien v. State, 125 Ind. 38, and so did the Supreme Court of Arkansas in Mabry v. Kettering, 92 Ark. 81. The Court of Appeals of the District of Columbia is in accord with the above cited decisions. Shaffer v. United States, 24 App. D. C. 417. The Court of Chancery of New Jersey, in the case of Bartletta v. McFeeley, 107 N. J. Eq. 141, held that even in the absence of a statute, a prisoner who had been arrested for possessing papers pertaining to a lottery was lawfully subjected to photographing, fingerprinting, and measurement under the Bertillion System. To the same effect is the opinion of the New York Court of General Sessions in People v. Sallow, 100 Misc. Rep. 447, and of the Supreme Court of the District of Columbia in United States v. Cross, 9 Mackey (20 D. C.) 382. On the other hand, the appellate division of the New York Supreme Court in Hawkins v. Kuhne 153 App. Division, 216, in effect held that photographing and measuring a prisoner before conviction were unlawful in the absence of a statute. And in the case of Gow v. Bingham, 57 Misc. Reports, 66, Justice Burr, in some language which is perhaps obiter dictum, questioned the right of the police authorities to photograph and fingerprint a prisoner. In none of these cases, however, does it appear that the person arrested was 608 within the jurisdiction of a juvenile court, or was a person under age. In this connection, I note that the statute under which your court was established and operates (Chapter 24-24, Code of 1933) expressly provides that "No adjudication under the provisions of this chapter shall operate as a disqualification of the child for any office, state or municipal, and such child shall not be denominated a criminal by reason of any such adjudication, nor shall such adjudication be denominated a conviction." Code Section 24-2412. Also, under Section 24-2410, children who come under the jurisdiction of the juvenile court are regarded as wards of the State, rather than as accused criminals, and Section 24-2411 vests the juvenile court with the authority to exclude the public from any hearing and to withhold all records of any case from indiscriminate public inspection within the discretion of the court. Under Section 24-2439, the court is empowered to devise and publish rules and regulate the procedure for cases coming within the provisions of said chapter, and for the conduct of all probation and other officers of the court. Under Section 24-2420, it is provided, in part: "It is hereby made the duty of every county, town or municipal official or department, in said county, to render such assistance and cooperation within his or its jurisdictional power to further the objects of this Chapter." Certainly the Chapter as a whole expresses the legislative intent that the proceedings in said court, with respect to .children within the jurisdiction of said court, shall not be stigmatized by any procedure, either of the arresting officers or of the court itself, but on the other hand the idea is clearly expressed that the primary function of the court is to rehabilitate any child coming under its jurisdiction and to prepare such child for his place in society. I have gone somewhat at length in this letter to outline my views and the views of the courts with respect to the subject submitted in your letter, even though I must advise you that in the last analysis the question submitted is one which properly should be worked out with the aid and assistance of your able county attorney and city attorney, and with the arresting officers of the municipality and of the county. As much as I would like to do so, I have no authority either to officially advise or intervene in the matter. It occurs to me that your court could promulgate rules and regulations with reference to the taking of fingerprints of children, and seek the cooperation of the arresting officers in not violating the letter and spirit of Chapter 24-24 and of your rules thus promulgated. In view of what is said above, I must, both in fairness to your court and to the arresting officers whose conduct is complained of, advise you that what is said herein is purely unofficial and is binding upon no one. It may be that the solution of your problem should be submitted to the General Assembly by way of an amendment to the juvenile court statute drawn in such a manner as to protect a child's interest in not having his name stigmatized and his future opportunities circumscribed and limited by some misconduct occurring when he was of such tender age as not to fully realize the consequences of his actions. 609 PUBLIC SAFETY; MOTOR VEHICLE DRIVERS' LICENSES-School bus driver required to have public chauffeurs' license. June 17, 1939 Hon. Edwin Brown Dames Ferry, Georgia I am pleased to acknowledge receipt of your letter of June 10, 1939, in which you inquire whether or not you, as a school bus driver, should obtain a chauf- feur's license or an operator's license. Section 2 of Article 4 of Part 1 of the Act creating the Department of Public Safety (Georgia Laws 1937, p. 342) provides in part as follows: "The Commissioner of the Department of Public Safety shall formulate and prescribe the rules and regulations under which licenses for learners, operators and public chauffeurs shall be granted, suspended, revoked and cancelled, and such persons shall be divided into three classes, as follows: "Public chauffeur's class which shall embrace all persons not less than. eighteen years of age and not otherwise disqualified, engaged in " (a) Operating a motor vehicle transporting school children. " By an Act approved March 17, 1939, amending the Act creating the Department of Public Safety, subsection (a) of Section 2, Article 4, which is hereinabove quoted, was stricken and the following provision was substituted in lieu thereof: "(b) Every person who drives a school bus transporting school children." You will readily see, therefore, that any person who drives a school bus transporting school children is classified by the Act as a public chauffeur and is required to have a chauffeur's license rather than an operator's license. PUBLIC SAFETY; MOTOR VEHICLE DRIVERS' LICENSES-Operator of trackless trolley must have public chauffeurs license. October 19, 1940 Captain Robert G. Mayo, Treasurer Department of Public Safety This will acknowledge receipt of your letter of October 17th in which you inquire whether an operator of a trackless trolley which uses the public roads or highways of this State, or of any county thereof, or the public streets of any incorporated village, town or city within the State, is required to have a license under the provisions of the Act of 1937 creating the Department of Public Safety. Section 1, Article 4 of the Act approved March 19, 1937 (Acts of 1937, pages 322 to 355), provides in part as follows: "That from and after July 1, 1937, it shall be a misdemeanor punishable by the courts of this State having jurisdiction thereof, by the imposition of a fine not to exceed fifty ($50. 00) dollars, including costs, imprisonment not to exceed six months, to work on the chaingang or the public roads or on such other public works as the county or State authorities may employ the chaingang, not to exceed six months, any one or more of these punishments in the discretion of the judge, for any person to operate a truck, motorcycle, automobile, or any other motor-propelled vehicle upon the public roads or highways in this State or in any county thereof, or upon the public streets of any incorporated village, town or city within this State, without first obtaining a license under the provisions of this Act." Thus, the question resolves itself into a determination of whether a trackless trolley is "a truck, motorcycle, automobile, or any other motor-propelled vehicle." 610 On June 19, 1939, Honorable B. B. Zellers, Assistant Attorney General assigned to the Department of Revenue, rendered an opinion dealing with the question of whether trackless trolleys were within the provisions of the law of this State reqUiring the registration of motor vehicles. I quote in part from that opinion. "After a study of this question, I have reached the conclusion and I am of the opinion that under our law trackless trolleys are subject to the maintenance tag tax. I base my opinion on this question upon the following law which is applicable to this question. "Code Section 68-101 defines a motor vehicle as follows: "'Any vehicle except tractors, propelled by power other than muscular power, not operated exclusively upon tracks.' "Code Section 92-1402 which deals with the taxation of motor fuels and kerosene gives the following definition of motor vehicle: " ' "Motor vehicles" shall mean and include all vehicles, engines, machines or mechanical contrivances which are propelled by internal combustion engines or motors. ' "On page 262 of the Acts of the General Assembly of 1937-38, Section 3, Subsection (a) we find the following definition: " 'Motor bus. Any passenger carrying motor vehicle having passenger seating capacity of eight or more persons. ' "I have also found in my study of this question two cases which are in my opinion applicable to the point in question. "Our Court of Appeals in the case of Carter vs. The State, 12 Ga. App. 430 (4) says the following: " 'The term "Automobile" has a definite popular significance and is understood to refer to a wheeled vehicle propelled by gasoline, steam or electricity, and used for the transportation of persons or merchandise. ' "The Court of Appeals in the case of Bonds vs. The State, 16 Ga. App. 401, states as follows: " 'The Act of 1910 amended in 1913 regulating the running of automobiles, locomobiles and other vehicles and like conveyances of like character propelled by steam, gas, gasoline, electricity, or any power other than muscular power, upon the public and private roads of the State of Georgia, and providing for the registration and numbering of the same, the use of lights thereon and regulating the running and speed thereof, includes motorcycles propelled by gasoline. ' "From the cases herein cited and the Code Sections quoted together with the most recent legislation on the subject defining motor bus, I have reached the conclusion above stated-that is, that trackless trolleys propelled by motors should be registered and a license tag purchased for them the same as if they were propelled by gasoline motors. " The Act of 1937 creating the Department of Public Safety and reqUiring licenses of persons operating trucks, motorcycles, automobiles, or other motorpropelled vehicles, was passed in the interest of public safety. It should be reasonably construed to effectuate that purpose. In the case of Smeltzer vs. Atlanta Coach Company, 44 App. page 53, the court said: "In the construction of any statute or ordinance, it is necessary to consider the context, and the prime rule is to ascertain the intention of the lawmaking body. The ordinance in question was intended to promote the public safety, and should receive a reasonable and practical interpretation to that end." 611 It is obvious that the operator of a motorpropelled vehicle as large and as powerful as a trackless trolley, operating such vehicle upon the public highways of this State, or any county thereof, or upon the streets of any town or municipality, may endanger the public safety to a greater extent 'than the operators of other motor-propelled vehicles if the operator of such trackless trolley is incompetent or is not familiar with the traffic laws. Section 2 of Article 4 of the Act of 1937, as amended by the Act approved March 17, 1939, (Acts of 1939, pages 135 to 144), provides in part as follows: "The Commissioner of the Department of Public Safety shall formulate and prescribe the rules and regulations under which licenses for learners, operators and public chauffeurs shall be granted, suspended, revoked and canceled, and such persons shall be divided into three classes as follows: ". . . (3). Public chauffeurs class which shall embrace all persons not less than 18 years of age and not otherwise disqualified engaged in, . . . "(c) Every person who drives any motor vehicle when in use for the transportation of persons or property for compensation. " I am of the clear opinion therefore, that under a reasonable and practical construction of Sections 1 and 2 of Article 4 of the Act of 1937, as amended, the operator of a trackless trolley must have a public chauffeur's license when such vehicle is in use for the transportation of persons for compensation. PUBLIC SAFETY; MOTOR VEHICLE DRIVERS' LICENSES-Person operating farm tractor or implement temporarily operated or moved on highway not subject to license. April 3, 1940 Hon. Dawson Kea Recorder, City of Dublin Dublin, Georgia I am pleased to acknowledge yours of recent date requesting an opinion as to whether you, as Recorder of the City of Dublin, have the authority to suspend or revoke driver's licenses in cases where you convict persons in your court for violating traffic laws. You also ask my construction of the language of Article 4, Section 1, subparagraph 2, of the Act creating the State Department of Public Safety (Georgia Laws 1937, pp. 322, 342), which reads: "The following persons are exempt from the provisions of this Act: (2) Any person driving or operating a motor vehicle while then engaged in farming, whose use of the public roads or highways shall be for a temporary purpose and not for the purpose of hauling farm produce to market." Your inquiry would have received my earlier attention but for the fact that all of my time and that of my Assistants has been taken up for the past several days in attending to urgent official business of the State in the courts. While I am not authorized to render an official opinion upon the questions asked except upon the written request of the Governor, I am glad to give you my own personal construction of the statute involved. Being unofficial, what is said herein is not binding upon anyone. I note that under Section 23 of the Act creating a new charter for the City of Dublin (Georgia Laws 1937, pp. 1771, 1796), a Recorder's Court is established and jurisdiction is conferred upon it "to try offenses against the laws and ordinances of the municipal government. " Under Section 25 of the same Act, it is provided in part: 612 "The Recorder or Mayor or Mayor Pro Tern of said City shall have power to impose fines for the violation of any law or ordinance of the City of Dublin, to any amount not to exceed $200. 00, or to imprison offenders in the city barracks for a period of not more than thirty days, or to labor on the public works or streets in the city chaingang for not more than ninety days." It will be observed that no express authority or jurisdiction is conferred upon the recorder with respect to the suspension or revocation of driver's licenses as a part of the punishment which might be meted out to a person convicted of the violation of any law or ordinance of the municipal government. Neither is there any language from which such a power may be implied. Therefore, it may be safely stated that the Act creating the office of recorder and prescribing his powers and jurisdiction does not confer upon the recorder the right to revoke or suspend a driver's license issued by the State. We must, therefore, look to the provisions of the Act creating the Department of Public Safety in order to determine whether such a power has been reposed by statute in the recorder. In order to determine this question also it is necessary to look to the language of the constitutional amendment enlarging the jurisdiction of courts of ordinary and the judges of the police courts of the incorporated cities and municipal court judges to issue warrants, try cases and impose sentence in misdemeanor cases arising under the "Georgia State Highway Patrol Act of 1937", and in cases involving the violation of "other traffic laws of the State in all counties of this State in which there is no city or county court." (Georgia Laws 1937, p. 1116.) The amendment to Article 6, Section 6, of the Constitution, referred to above, provides: "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under that Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offenses arising within their respective jurisdiction. " (Emphasis supplied.) The enabling Act passed pursuant to this constitutional amendment (Georgia Laws, Extraordinary Session, 1937-38, p. 558) does not enlarge upon the jurisdiction authorized to be conferred by statute under this constitutional amendment above quoted (See Section 2). Section 3 of said Act provides: "All municipal courts and police courts shall have.jurisdiction to dispose of misdemeanor cases, as provided by this Act, which arise within the territorial limits of their respective jurisdiction, as now or hereafter fixed by law. The term 'police courts' shall be construed to include mayor's court or recorder's court, or like municipal court by whatever names called. " (Emphasis supplied. ) Section 11 of the same Act provides: "The ordinary shall have exclusive jurisdiction of all cases originating in the county, outside of municipal corporations, and the judge of the recorder's court in each municipal corporation shall have exclusive jurisdiction of cases originating inside the corporate limits of municipalities. This section shall not apply to those counties having city courts or county courts." That part of Section 10 of Article 4 of the Act creating the State Department of Public Safety, which reads: 613 "Upon the conviction of any licensee hereunder, in any court of comP!'tent jurisdiction in this State, of any offense of driving a motor vehicle while intoxicated or driving a motor vehicle while engaged in a felony, or deliberately, wilfully or negligently violating any traffic law of this State or any municipality thereof, the court trying the same is hereby given authority and jurisdiction, upon such licensee being adjudged guilty, to cancel or suspend the license of such defendant, for such time and on such conditions as the court may deem proper ... etc.", (Emphasis supplied.) must necessarily be construed in the light of the language of the foregoing constitutional amendment and enabling Act passed pursuant thereto. Accordingly. I am of the opinion that the language, "Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges, for offenses arising within their respective jurisdictions", means that in counties where there is a city or a county court, neither the court of ordinary nor judges of police courts, nor judges or recorders of municipal courts, have any jurisdiction to issue warrants, try cases and impose sentences, in cases arising under the Georgia State Highway Patrol Act, or for the violation of other traffic laws of the State; and, therefore, do not have the power to suspend the driver's license of a person convicted of such violations. While my mind is not entirely clear of doubt as to this question, I am persuaded that since the revocation of the driver's license of a person is an act which is punitive in its nature, the rule of strict construction must be applied in determining whether a statute confers the right of revocation or suspension upon a court. As to your other question, concerning the proper construction of the language "Any person driving or operating a motor vehicle while then engaged in farming, wl:lose use of the public roads or highways shall be for a temporary purpose an~ not for the purpose of hauling farm produce to market", I can perhaps best give you my idea as to what it means by giving you an illustration. If a farmer owned a truck which was used exclusively on his farm, and he or some person employed by him took the truck to the farmer's barn, loaded it up with manure and drove it out upon the highway and down to a field on the owner's farm where the manure was to be broadcast, the owner or the driver of the truck would not be required to have a driver's license for such operation. If, on the other hand, the farmer took the truck to his watermelon patch, loaded it with melons and carried them to market, he would have to have a driver's license. The foregoing information is for your personal use only and is given you in a desire to be helpful. It is not for dissemination. PUBLIC SAFETY; DRIVING AND TRAFFIC REGULATIONs-Persons involved in motor vehicle accidents required to make report to Department. October 4, 1939 Hon. Hubert Fields Rawls Attorney at Law Nahunta, Georgia This will acknowledge receipt of your letter of October 2nd in which you inquire as to the constitutionality of that provision of the Act approved March 24, 1939, (Acts of 1939, pp. 295-303) , requiring the driver of a motor vehicle involved in an accident resulting in injury or death to any person or in a total 614 property damage to the extent of $50. 00, to file a written report of such accident to the Department of Public Safety on a form prepared by said Department. You state that in your opinion, a compliance with this provision results in compelling a person to furnish incriminating evidence against himself. Your attention is called to subsection (e) of Section 6 of the Act which provides as follows: "(e) All required accident reports and supplemental reports shall be without prejudice to the individual so reporting and shall be for the confidential use of the Department except that the Department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies having been present at such accident; provided, that rio such report shall be used as evidence in any trial, civil or criminal, arising out of the accident, except that the Department shall furnish upon demand of any person who has or claims to have made such a report, or upon demand of any court a certificate showing that the specified accident report has or has not been received by the Department, solely to prove a compliance or failure to comply with the requirement that such report be made. " As revealed by subsection (f) of Section 6 of the Act, the purpose of such reports is to furnish the Department with information from which they may tabulate, analyze and publish statistical information as to the number and circumstances of traffic accidents. Subsection (e) hereinabove quoted specifically provides that no such report shall' be used as evidence in any trial;, civil or criminal, arising out of the accident. While that subsection does authorize the Department to disclose the identity of a person involved in an accident, I do not believe the furnishing of such information by the Department would violate Article 1, Section 1, Paragraph 6 of the Constitution of this State which provides: 'No person shall be compelled to give testimony tending in any manner to criminate himself. " A similar question has been raised in numerous cases with the almost unanimous holding that statutory requirements compelling persons to furnish accident reports do not violate similar provisions of the Constitutions of other states. In the case of People vs. Thompson 242 N. W. p. 857, the Supreme Court of Michigan said: "(10) Four. Does the statute (subdivisions (c) and (d) of Section 30) compel one to be a witness against himself and therefore violate the Constitution, Article 2, Section 16? We think not. Subdivision (c) does notrequire one to reveal any fact or circumstance that is incriminating in any way. If one were testifying as a witness, he certainly could not decline to answer or give such information as is reqUired in this section on the ground that it was incriminating because it is not. So far as the owner of the automobile is concerned, reference to the record obtainable from the license plates which he must carry on his machine would give the same information as required by subdivision (c). We know of no decision that goes so far as :to challenge the validity of a statute requiring display of license plates as a means of identification. People v. Scheneider, 139 Mich. 673, 103 N. W. 172, 69 L. R. A. 345, 5 Ann. Cas. 790. Subdivision (d), which requires report of an accident, expressly provides: 'Such report shall not be available for use in any court action. ' Clearly this provision saves subdivision (d) from the objection urged. Neither subdivision (c) nor (d) of section 30 impinges upon the constitutional inhibition of compelling one charged with 615 an offense to be a witness against himself. Similar provisions have been sustained in various jurisdictions. See Woods v. State, 15 Ala. App. 251, 73 So. 129; People v. Rosenheimer, 209 N. Y. 115, 102 N. E. 530, 46 L. R. A. (N. S.) 977, Ann. Cas. 1915A, 161; Ex parte Kneedler, 243 Mo. 632, 147 S. W. 983, 40 L. R. A. (N. s.) 622, Ann. Cas. 1913C, 923; State v. Masters, 106 W. Va. 46, 144 S. E. 718. For numerous other cases, see note 42 C. J. 1384. " See also, 16 C. J. 570, paragraph 1109. Since the Attorney General is not authorized by law to render official opinions except when so requested by the Governor or by one of the statehouse officials, anything which might be said in this letter must be considered as merely an expression of my personal views upon the subject, and not binding upon anyone. PUBLIC SAFETY; REVOCATION OF LICENSES-Power of Department of Public Safety to revoke. November 30, 1939 Hon. L. E. Sullivan Commissioner Department of Public Safety I have your letter of November 22, 1939, asking my opinion on the following problem: "Under our blanket policy if a judge suspends a (driver's) license for two days, the receipt of the conviction report in our office will result in the Department automatically revoking the license for six months. One or two of the courts, in an effort to prevent this revocation policy, have revoked the license for as little as two days or a week, thinking that the Department cannot revoke the license for a longer period if they have acted. "I have contended that the lack of uniformity in dealing with these cases makes it wise to treat them all alike so far as the revocation period is concerned. Then when the licensee calls for a hearing, the designated officer takes into consideration the recommendation of the court, the officer who made the case and the licensee's past record in reducing the six months' revocation down to one month or two months or whatever period he thinks will work for the interest of public safety. "Do you think the Department is overstepping its authority in treating all convictions alike regardless of what action has been taken by the court unless the court's period of revocation is longer than that of the Department? We never reduce the period specified by a court." Section 2 of Article 4 of the original Act creating the Department of Public Safety (Georgia Laws, 1937, pp. 322, 342) provides that the Commissioner of the Department of Public Safety shall formulate and prescribe the rules and regulations under which drivers' licenses shall be granted, suspended, revoked and cancelled. It also provides that no license shall be issued to a person whose license has been revoked or cancelled for cause until after six months from the date of such revocation or cancellation. Section 2 of Article 4 of the original Act further provides that no license shall be issued to any person incapacitated by reason of disease, physical disability, or a confirmed drunkard or user of drugs, who by reason of such disability is unable to operate a motor vehicle with safety, and that any license granted without knowledge of such disability must be immediately revoked and cancelled upon certain prescribed notice. 616 The last paragraph in Section 11 of Article 4 of the original Act (Georgia Laws, 1937, p. 322, at 350) provides that an operator's or chauffeur's license shall be subject to renewal, except after the third revocation, on such term~ as the Commissioner of the Department of Public Safety shall prescribe. Section 10 of the amending Act, approved March 17, 1939 (Georgia Laws, 1939, pp. 135, 141, 142), provides in part as follows: "The Commissioner may in his discretion revoke the license of any operator or chauffeur upon receiving the record of such operator's or chauffeur's conviction of any of the following offenses: "(1) Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle, (2) Driving a motor vehicle while under the influence of intoxicants or drugs, (3) Any felony in the commission of which a motor vehicle is used, (4) Failure to stop and render aid as required under the laws of this State in the event of a motor vehicle accident resulting in the death or personal injury of another, or leaving the scene of an accident as specified by the law of this State, (5) Perjury or the making of a false affidavit or statement under oath to the Department under this Act or under any other law relating to the ownership or operation of motor vehicles, (6) Conviction, or forfeiture of bail, not vacated, upon three charges of violation of the motor vehicle laws of this State within a period of twelve months, provided that this shall not include violations which do not affect the safety of human life or limb on the streets or highways of this State. " It will be readily seen that the foregoing sections of the original and amending Acts give the Commissioner of the Department of Public Safety rather broad powers in dealing with the suspension and revocation of drivers' licenses. It is my opinion, therefore, that the Acts in question permit the Commissioner to suspend and revoke such licenses (on grounds authorized by the Acts) for periods of time in excess of those stipu~ated by the court. The Commissioner cannot, however, suspend or revoke a license for a period of time less than that stipulated by the court. The question of uniformity in dealing with such cases is a matter to be determined by the sound judgment of the Commissioner. You also ask about the necessity of a hearing under Paragraph 1 of Section 11 of Article 4 of the original Act (Georgia Laws, 1937, pp. 322, 349) in cases where a court has revoked or suspended a license and the court refuses to recommend such hearing. Paragraph 1 of Section 11 of Article 4 of the original Act of 1937 provides that upon the refusal, suspension, revocation or cancellation of any learner's, operator's or chauffeur's license for cause, a hearing shall be granted on demand before an agent or officer of the Department of Public Safety, and that the decision of such agent or officer shall be final unless the person whose license has been suspended, revoked or cancelled enters his appeal to the court of the county of his residence, other than a justice's court, having jurisdiction of misdemeanor cases. It is my considered opinion that the foregoing provisions of the original Act with reference to hearings have no application whatever to revocations or suspensions of licenses by a court. If the holder of a driver's license is not satisfied with a judgment of the court revoking or suspending his license, his remedy is not in a hearing before an agent or officer of the Department of Public Safety, but is in a motion for a new trial or other appropriate proceeding in said court, with a right of appeal as in other cases. If, however, because of a conviction, the Commissioner revokes or suspends a license for a period of time in excess of the period stipulated by the court, then, of course, a hearing must be had as 617 to the excess period if the license holder demands it. A hearing must also be given, when demanded, as to suspensions or revocations originating in the Department of Public Safety. I think that the fact of whether a court recommends or fails to recommend a hearing is immaterial insofar as the requirements of law are concerned. PUBLIC SAFETY; SUSPENSION OF LICENSES-Power of Department of Public Safety to suspend. July 16, 1940 Major Lon Sullivan Commissioner, Department of Public Safety I have your letter of July 15 as follows: "Attorney Fred Stinchcomb has asked me to determine whether or not this Department would have a right to suspend the license and the driving privileges of a citizen for a period longer than the license was issued for. The case is as follows: "Robert Riley applied for and was granted a driver's license in May 1939. On the 11th of December, he was arrested and charged with speeding in the City of Atlanta and the report of his conviction was filed with this Department as required by law. On the 24th of December, he was again arrested and charged with drunk and reckless driving and driving under the influence of intoxicants and the report of this conviction was filed. The delay in this report reaching our License Suspension Unit resulted in the automatic suspension order on his license not being issued until February 9, 1940. His license was picked up by a Trooper and deposited in the Department. "On March 8, however, this man made application for a license using the name "John D. Hulsey" and giving a different address. The license was issued to John D. Hulsey and afterwards an investigation revealed that these two licenses were issued to the same parties and the license issued to John D. Hulsey was, therefore, indefinitely suspended on May 4, 1940, and the license issued to Robert Riley was marked invalid as fraudulently secured. "John D. Hulsey, which is his correct name, called for a hearing as provided by law, and on June 14, the legally appointed hearing officer, Sergeant R. A. Tolve, did hear the circumstances in John D. Hulsey's case and as required by law rendered a decision that the applicant not be granted a license until after January 1, 1941, at which time, if his record was good, he could apply for a new license. In this hearing the record of John D. Hulsey as a law-abiding citizen was injected and it was determined that he had been arrested fourteen times since 1934, serving a year and a day in Chillicothe, Ohio, United States Industrial Reformatory from February 6, 1937 to February 7, 1938, and other sentences in connection with violating the prohibition laws, lottery laws and motor vehicle laws. "Mr. Hulsey's attorney claims for him that he has now become engaged in legal practices in connection with a service station operation and he is desirous of continuing this lawful occupation and that to prohibit him from driving a motor vehicle would prohibit him from engaging in such occupations. The sixty day suspension of his privilege and licenses for drunk and reckless driving has expired and his license is being held by this Department under suspension because he secured the license fraudulently and because he is apparently a persistent violator of the laws made to protect human life on our streets and highways. 618 "If we are not within our rights we, of course, want to give Mr. Hulsey back his license or rather permit him to apply for a new license and reinstate his driving privileges. " In determining your question, the following portions of Section 2 of Article IV of the statute creating the Department of Public Safety for Georgia, as amended, (Ga. Laws 1937, pp. 322, 343; Ga. Laws 1939, pp. 135, 141-142) are applicable, to wit: "Provided, that no licenses shall be issued to a person whose license has been revoked, or canceled for cause until after six months from the date of such revocation, or cancellation. " "No license shall be issued to any person incapacitated by reason of disease, physical disability, or a confirmed drunkard or user of drugs, who by reason of such disability is unable to operate a motor vehicle with safety upon the public roads or highways within this State. Any license granted without knowledge of such disability shall be immediately revoked and canceled upon notice as herein provided. " Ga. Laws 1937, pp. 322, 343. "The Commissioner may in his discretion revoke the license of any operator or chauffeur upon receiving the record of such operator's or chauffeur's conviction of any of the following offenses: "(1) Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle, (2) Driving a motor vehicle while under the influence of intoxicants or drugs, (3) Any felony in the commission of which a motor vehicle is used, (4) Failure to stop and render aid as required under the laws of this State in the event of a motor vehicle accident resulting in the death personal injury of another, or leaving the scene of an accident as specified by the law of this State, (5) Perjury or the making of a false affidavit or statement under oath to the Department under this Act or under any other law relating to the ownership or operation of motor vehicles, (6) Conviction, or forfeiture of bail, not vacated, upon three charges of violation of the motor vehicle laws of this State within a period of twelve months, provided that this shall not include violations which do not affect the safety of human life or limb on the streets or highways of this State. " Ga. Laws 1939, pp. 135, 141-142. Applying the aforementioned provisions of the law to the foregoing facts submitted by you, it is my opinion that you are fully within your rights in deferring until after January 1, 1941, the consideration of whether or not a new driver's license shall be issued to John D. Hulsey. PUBLIC SAFETY; COURTS FOR TRIAL OF TRAFFIC OFFENSES-Ordinary's jurisdiction limited to violations of traffic laws; query: drunkenness and possession of liquor on highways. June 5. 1939 Honorable C. C. Vosburg, Ordinary Catoosa County Ringgold, Georgia This will acknowledge yours of May 30, 1939, requesting my opinion as to whether (a) the Catoosa County Court of Ordinary has jurisdiction to try a person for the offense of drunkenness on the highway or possessing liquor when the accused is arrested in an automobile upon the highway, and 619 (b) what costs the Sheriff of a county is entitled to receive where arrests are made by patrolmen and tried before the ordinary. In the election of June 6, 1937, the people ratified an amendment to Article 6, Section 6 of the Constitution providing in part as follows~ "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under that act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State in all counties of this state in which there is no city or county court, provided the defendant waives a jury trial. " (Georgia Laws 1937, pages 1116 and 1117.) (Emphasis supplied.) The Enabling Act passed at the Extraordinary Session of 1937-38 (Georgia Laws Extra Session 1937-38, page 558) provides in part: "The jurisdiction of the Courts of Ordinary . . . of this State, are hereby enlarged and extended so that said courts, acting by and through the judge or presiding officer thereof, shall have the right and power to conduct trials, receive pleas of guilty and impose sentence upon defendants violating the penal provisions of the Act approved March 19, 1937, known as the Georgia State Highway Patrol Act, or the Act Creating a Department of Public Safety for Georgia, as found at pages 322-355, inclusive, of the published volume of Georgia Laws 1937, and upon defendants violating any and all other criminal laws of this State relating to traffic upon the public roads, streets and highways of said State where the penalty for the offense does not exceed that of the grade of misdemeanor, in the manner required by Law. (Emphasis supplied.) Section 2 of said act makes the jurisdiction of the ordinary contingent upon two facts, to wit: (1) that the Court of Ordinary is located in a county in which there is no city or county court, and (2) that the defendant has waived a jury trial. Section 68-307 of the Code provides: "No person shall operate a motor vehicle or motorcycle upon any public street or highway, whether as owner or operator of such vehicle, if under 16 years of age, or while under the influence of intoxicating liquors or drugs; and no person shall take, use, or operate any motor vehicle or motorcycle upon the public streets and highways without the permission of the owner thereof." I think that the last quoted statute is a "traffic law" of this State within the meaning of the constitutional provision conferring jurisdiction upon Courts of Ordinary to try cases under "other traffic laws of the State." (Georgia Laws 1937, page 1117). So if the accused referred to in your letter was driving an automobile upon a public highway, and waived a jury trial in writing, and there is not a city or county court in your county, a Court of Ordinary would have jurisdiction to try the case. I do not think, however, that the mere possession of liquor in an automobile upon the public highways of this State is in violation of any "traffic law" of this State, and therefore the Court of Ordinary would have no j.urisdiction under any circumstances to try such cases. If a highway patrolman (rather than the sheriff) makes the arrest of an accused tried before you then the sheriff would be entitled to no fee for the arrest. This is true for the reason that an officer is entitled to no fee for any service not performed by him or one of his lawful deputies. Since the highway patrolman made the arrest, and since, under the law, such patrolmen are not 620 entitled to any fee for making arrests, the arresting fee would be charged in the costs and would go to the county or city. PUBLIC SAFETY; COURTS FOR TRIAL OF TRAFFIC OFFENSES-Ordinary or Recorder has no jurisdiction over offenses against State laws in counties having a City Court. May 22, 1939 Major Phil Brewster Commissioner Department of Public Safety I have before me your letter of May 16, 1939, inclosing a communication to you from .Judge George M. Nottingham of Macon in reference to the jurisdiction of the Recorder's Court of Macon to try violations of the traffic laws of the State of Georgia. The General Assembly, at the extraordinary session in 1937, passed an Act enlarging the jurisdiction of the Court of Ordinary and Mayor's Court or Recorder's Court in certain counties (Georgia Laws 1937-38, page 558). There is no question in my mind that this Act does not affect or enlarge the jurisdiction of the Recorder's Court of the City of Macon, as I understand that there is a City Court in Bibb County. Section 2 of the this Act just referred to is as follows: "The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon, in all misdemeanor cases arising under that Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State, in all counties of this State in which there is no City or County Court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges for offenses arising within their respective jurisdiction. " And the last sentence in Section 11 of this Act provides: "This section shall not apply to those counties having city courts or county courts. " So it is apparent that in any county which has a city court or county court, the recorder's court in a city of that county and the court of ordinary of such county do not derive any jurisdiction in traffic cases involving the violation of a State law. Since there is a City Court of Macon, the Recorder's Court of the City of Macon has no authority to try cases and impose sentences involving the violation of State laws. PUBLIC SAFETY; COURTS FOR TRIAL OF TRAFFIC OFFENSES-Municipal Court's jurisdiction over traffic offenses. October 4, 1939 Major Lon Sullivan Commissioner Department of Public Safety I am pleased to acknowledge receipt of your letter of September 30, 1939, asking for a ruling on the authority of the Mayor of Darien in respect to the revocation or suspension of drivers' licenses. The latter part of Section 10 of the Act creating the Department of Public Safety (Georgia Laws 1937, page 348) confers upon the courts of this State, including municipal courts, the right to revoke or suspend drivers' licenses for the violation of certain laws. One who deliberately, wilfully or negligently 621 violates any traffic laws of a municipality is liable to have his driver's license cancelled or suspended. The municipal court is empowered by this Act of the Legislature to cancel and suspend the license for such time and on such conditions as the court may deem proper. Of course, the cancellation or suspension could not extend beyond the period for which the license was issued. Under the Act incorporat- . ing the Town of Darien the Mayor sitting as a recorder is limited in imposing a sentence to a term not to exceed ninety days. This, I do not think, would limit the Mayor in the cancellation or suspension of the Driver's License. In other words, I am of the opinion that the Mayor would be authorized to suspend the license for a period longer than the sentence of imprisonment imposed by him. And if he cancelled the license, the cancellation necessarily would be for the unexpired time that his driver's license is to run, however, it will be possible for the Department of Public Safety to issue another license after the expiration of six months after the cancellation. If there is no City Court in the County in which Darien is located, the Mayor under Section 2 of an Act approved February 16, 1938 (Acts 1937-38, page 558) would be authorized to issue warrants, try cases and impose sentences in all misdemeanor cases arising under the Act known as the Georgia State Highway Parol Act of 1937, and any other traffic laws of the State provided the defendant waives a jury trial, and provided further that the violation of the State law was committed within the limits of the municipality. But in case there is a City Court in this County, the Mayor of Darien would be without authority to try and impose sentences for the violation of any State law. PUBLIC SAFETY; COURTS FOR TRIAL OF TRAFFIC OFFENSES-Warrant necessary for arrest of traffic law violator, when. June 25, 1940 Hon. W. I. Flowers Ordinary, Cook County Adel, Georgia I am pleased to acknowledge receipt of your letter of June 19, 1940, inquiring as to whether or not, in highway patrol cases, a warrant is necessary in the event the defendant pleads guilty, and also whether the sheriff is entitled to a fee where the defendant pays the fine. The Highway Patrol Act does not specifically reqUire that a warrant be issued in the case of arrests for traffic violation crimes on the highways. Neither does it waive the necessity of the warrant. A warrant is always essential to justify an officer's holding a person in custody. There is a provision of law which permits an officer or a civilian to arrest a person without a warrant,. but the law reqUires them to proceed to procure a warrant from the nearest and most convenient official. To hold a person in custody beyond a reasonable time would be illegal and would subject the arresting officer to a possible damage sUit. In the event the person pleads guilty and is sentenced, and then fails or refuses to comply with the sentence of the court, and the officer does not have a warrant, he would be without authority to restrain the party from going at liberty. Therefore, I would suggest to you that there would be less likelihood of any complication arising by always first issUing the warrant before proceeding with the trial of the case. It seems that the sheriff would be entitled to a fee where a party enters a plea of gUilty, and is sentenced by the ordinary and pays his fine. Section 5 622 of the Highway Patrol Act (Georgia Laws 1937-38, p. 560) provides in part as follows: "Be it further enacted that the following schedule of costs shall apply in any case disposed of under this Act: Arresting officers, the same costs as now allowed in Superior Court. " And Section 7 of the same Act provides in part as follows: "And in case a fine is imposed and paid, the officers of court (where on a fee basis) shall be first paid their costs arising in such case ,and after the payment of all costs, the remainder of such fine or fines shall be paid into the county treasury in the event the case is disposed of by the Court of Ordinary. " What I have just said in reference to the sheriff being entitled to his fees is of course based on the assumption that he is the arresting officer and performs the services for which the fees are paid. This is not to be regarded as an official opinion, because I am without authority to render such an opinion to you, but I am giving you this information for your own guidance and I trust that it will be of service to you. I am always delighted to serve you and will expect you to call on me whenever I can be of any assistance to you. PUBLIC SAFETY; COURTS FOR TRIAL OF TRAFFIC OFFENSE8-Sheriff not entitled to fee for arrest when arrest is made by State Patrolman. October 17, 1940 Hon. W. F. Hinson, Ordinary Jeff Davis County Hazlehurst, Georgia This will acknowledge receipt of your letter of October 16th in which you state: "Will you kindly give me an opinion on the following question:? "When an arrest is made by the State Patrolmen, the defendant brought before the Court of Ordinary and disposed of, without the presence of the Sheriff and without knowledge; is the Sheriff entitled to the same cost as though he had handled the case himself?" Since the Attorney General is authorized by law to render official opinions only when so requested by the Governor or by one of the officials of the Executive Department of this State upon matters directly affecting the State's interest, anything which might be said in response to your inquiry must be considered as merely an expression of my personal views upon the subject, and not binding upon anyone. Section 5 of the Act approved February 16, 1938 (Acts of 1937-38, pages 558 to 562) provides in part: "Be it further enacted that the following schedule of costs shall apply in any case disposed of under this Act: Arresting officers, the same costs as now allowed in Superior Court. " Section 15 of the Act approved March 19, 1937, (Acts of 1937, pages 322 to 355) , provides that no member of the uniform division of the Department of Public Safety known as the Georgia State Patrol shall receive any costs, emoluments or other compensation other than his salary, except a legal reward as otherwise stated in the Act, but that all fines and costs shall be paid into the treasury of the tribunal having jurisdiction of such offense and distributed according to 623 law. Section 7 of the Act approved February 16, 1938, hereinabove cited, provides: "No officer receiving a salary shall receive any fees for arresting or attending court in any case arising under this Act, but the usual fees shall be assessed and if the arresting officer is not entitled to the cost, the same shall go to the county or city to which the fine is paid. " Thus, it is clearly contemplated that in some instances arrests may be made by an officer who is not entitled to the fees and provision has been made as to what is to be done with the arresting fees in such cases. No public officer is entitled to fees for services not performed. Section 89702 of the Code provides: "No public officer who shall charge or take fees not allowed by law, or for services not performed, shall, on conviction or proof thereof, be dismissed from office. " Of course the question of what officer actually made the arrest in a particular case is a question of fact depending upon all the facts and circumstances of the individual case. It is impossible therefore for me to determine what officer, if any, is entitled to the arresting fees in any individual case. PUBLIC SAFETY; COURTS FOR TRIAL OF TRAFFIC OFFENSEB-Sheriff entitled to fee for arrest when arrest is made by him; other costs and fee enumerated. September 5, 1939 Honorable B. Powell, Chairman Board of County Commissioners Cook County Adel, Georgia This will acknowledge receipt of your letter of August 30 in which you make certain inquiries with reference to the distribution of fees in a case where a man is arrested by the State Highway Patrol for speeding and is brought into the Court of Ordinary for trial and fined by such Court. You inquire: "Is it lawful for the sheriff to receive a fee when the arrest is made by the Patrolman? Also is it necessary that there be a warrant sworn out by the J. P. involving that cost where there is a plea of guilty?" The first question which you ask has been before this department several times. On July 5, 1938, my predecessor in office, the late Honorable M. J. Yeomans, in response to an inquiry of Honorable I. N. Daniell, Ordinary of Haralson County, stated in part as follows: "Your next question is: 'Suppose a Patrolman carries an offender before the court of ordinary, and a trial is had as provided in the Act, and costs are assessed, is the sheriff, or clerk, or solicitor entitled to any costs? If so, what amount?' "A. The costs in such cases are provided in Section 5 as follows: " 'The following schedule of costs shall apply in any case disposed of in this Act: " 'Arresting officer the same cost as now allowed in superior court. " 'Warrant, if issued, $1. 25. " 'Entering case on docket, receiving plea or holding trial and imposing sentence for entire service, $3. 00. " 'In case a defendant demands a trial by jury and is bound over to another court the cost shall wait the final disposition of the case. 624 "A Patrolman who arrests a defendant and carries him before a court of ordinary is not entitled to any costs or fee, for it is provided in Section 7 of the Act: 'No officer receiving a salary shall receive any fees for arresting or attending court in any case arising under this Act, but the usual fee shall be assessed and if the arresting officer is not entitled to the cost, the same shall go to the county or city to which the fine is paid. ' Thus it is seen that the Patrolman, a salaried officer, can not accept any fees, but such fees are assessed as costs against the defendant and if the defendant pays a fine, such fees go into the county treasury. No officer is entitled to any fees unless he actually performs the services for which the law provides such fees. Therefore, in the circumstances stated in this question, neither the sheriff (who did not make the arrest or carry the defendant before the court) nor the solicitor (who has no duties prescribed by law to perform in such cases) is entitled to any fees. The ordinary acting as clerk of his court is entitled to a fee of $3. 00 for 'entering case on docket, receiving plea or holding trial and imposing sentence. ' "Your next question is: 'Suppose the sheriff carries the offender to the ordinary, what cost is he entitled to?' "A. In such a case, where the Patrolman makes the arrest, but the sheriff carries the offender before the ordinary, the sheriff would not be entitled to the arresting fee, but would be entitled to a fee of $1. 25 for 'conducting prisoner before judge or court to and from jail.' (Code Section 242823.) .. The above quoted portion of Judge Yeomans' letter states very clearly the law with reference to your first inquiry. In response to your second inquiry with. reference to the fee for issuing a warrant your attention is called to Section 5 of the Act approved February 16, 1938 (Acts 1937-38, pp. 538, 562) and particularly to that portion of Section 5 which reads as follows: "Be it further enacted that the following schedule of costs shall apply in any case disposed of under this act: Warrant, if issued, $1. 25. . . " Thus it would seem that the General Assembly in passing the Act contemplated that there would be some cases in which a warrant did not issue. Section 4 of the Act provides that no court defined in the Act shall have the power to dispose of misdemeanor cases as provided by the terms of the Act except where the defendant first waives in writing a trial by jury. Your attention is further called to Section 27-212 of the Georgia Code of 1933, which provides as follows: "In every case of an arrest without warrant, the person arresting, shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose. " Of course, the question of what constitutes a reasonable time in a particular case is one for the determination of a jury. See The Ocean Steamship Co. v. Williams, 69 Ga. 251 (9) . In the case of Johnson v. Americus, 46 Ga. 81, it was held that where an arrest for the violation of a city ordinance was made by a city policeman about sundown without a written warrant and the person so arrested was confined in the city jail until10 o'clock the next morning when he was brought before the mayor and plead guilty to the charge against him, his retention for this period without a warrant was not illegal. 625 If a person is arrested by the State Highway Patrol for speeding and is immediately taken before the Ordinary where he waives a jury trial in writing and pleads guilty I do not believe that the issuance of a warrant would be necessary. However, if such person fails to waive a jury trial in writing or if he can not immediately be taken before the Ordinary and he is jai ed until such time as a hearing of his case may be had, I believe that officers should comply with Section 27-212 of the Georgia Code of 1933 and should "without delay, convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant". In such case the fee of $1. 25 for issuing the warrant would be proper. Since the Attorney General is not authorized by law to render official opinions except when so requested by the Governor or by one of the Heads of the Executive Department of this State, anything which might have been said in response to your inquiry must be considered as merely an expression of my personal views upon the matter and not binding upon anyone. I also suggest that you confer with your county attorney about the matters discussed in this letter. PUBLIC SAFETY; CRIMES-Unlawful to drive municipal owned truck without drivers' license. September 1, 1939 Ron. Lon Sullivan Commissioner Department of Public Safety I am pleased to acknowledge receipt of your letter of August 28, 1939, re- questing an opinion as to drivers of trucks belonging to a municipality where the city's employees drive the cars only while being used in strictly governmental functions. Section 1 of Article 4 of the Public Safety Act (Acts of 1937, page 341) makes it a misdemeanor punishable by fine and imprisonment "for any person to op- erate a truck, motorcycle, automobile or any other motor-propelled vehicle upon the public roads or highways of this State or in any county thereof, or upon the public streets of any incorporated village, town or city within this State, without first obtaining a license under the provisions of this Act. " In that same section certain persons are exempt from the provisions of the law requiring a license, but it does not exempt city employees driving or operat- ing a truck solely for governmental purposes. In 1939, Section 2 of the Public Safety Act which classifies persons requlred to have license, was amended, so that this section now includes any person "who is employed by another for the principal purpose of driving a motor ve- hicle. " (Georgia Laws 1939, page 141) . Where an exemption is claimed under the law, this exemption must be made clear and manifest by the law. Persons who drive trucks for a municipality in the discharge of its governmental functions would not be exempt from any requirement of the law unless they are specifically made so. But in this case, while exemptions were made, they did not include this class of driver. Therefore, it is very clear that it was the intent of the Legislature that this class of motor vehicle operators should be required to secure a chauffeur's license in order to operate such vehicle. 626 PUBLIC SAFETY; CRIMES-License cancelled upon conviction of certain offenses; trial judge without authority to change sentence in traffic case after the sentence has gone into execution. August 15, 1939 Hon. Lon Sullivan, Commissioner Department of Public Safety I have your letter of August 9, relating to the driver's license of one Mr. C. C. Anderson. You state that his license was "revoked" on April 24, 1939, by Recorder John L. Cone for a period of 365 days because of Mr. Anderson's conviction of operating a car under the influence of intoxicants on January 20, 1939, and for speeding and reckless driving on April24, 1939. You also state that you have evidence that Mr. Anderson has been engaged in hauling contrabands since his license was revoked by Judge Cone. It appears from your letter that the Driver's License which Judge Cone revoked expired on June 30, 1939, and that Mr. Anderson now desires a new license. You state that Mr. Anderson has filed a petition with you setting forth that he must have a driver's license in order to earn a livelihood, which petition is accompanied by a letter from Judge Cone requesting that the license be reinstated because of the necessity for Mr. Anderson to drive in order to make a living. You ask my opinion on the question of whether or not the fact that the Judge who issued the original order of revocation now requests that the license be reinstated would have the effect of nullifying the original order. You also ask whether the recommendation of other law enforcement officers that the license not be reinstated would have any legal effect on the reinstatement. Section 10, Paragraph 2 (pages 348-349) of the Act approved March 19, 1937, creating the Department of Public Safety (Georgia Laws 1937, pages 322-355) provides in part as foll,ows: "Upon the conviction of any licensee hereunder in any court of competent jurisdiction in this State of any offense of driving a motor vehicle while intoxicated or driving a motor vehicle while engaged in a felony, or deliberately, wilfully or negligently violating any traffic law of this State, or any municipality thereof, the court trying the same is hereby given authority and jurisdiction upon such licensee being adjudged guilty to cancel or suspend the license of such defendant for such time and on such conditions as the court may deem proper, and in the event that the court should place such licensee under probation, it is hereby provided, that the court shall retain jurisdiction of said case during the period of probation with the right and power to suspend or revoke the license as to the court may deem in keeping with the public safety. " While the trial judge has the right and power, under the above quoted section of the 1937 Act, to place a licensee under probation and to suspend or revoke the license during such period of probation as he may deem proper, yet where the sentence of the court is definite and final and there is no question of probation, the trial judge is without any authority whatever to change such the trial judge is without any authority whatever to change such sentence after it has gone into execution. Rutland v. State, 14 Ga. App. 746, and Mathews v. Swatts, 16 Ga. App. 208 (2). Article 4, Section 2, Paragraph 8, page 313 of the Act creating the Department of Public Safety (Georgia Laws 1937, pages 322-355) expressly provides that no license shall be issued to a person whose license has been revoked or canceled for cause until after six months from the date of such revocation or cancellation. 627 In view of the foregoing, it is my opinion that the request of the Judge that the license be reinstated would not have the effect of nullifying the original order. The fact that the revoked license expired by operation of law on June 30, 1939, does not affect the matter under consideration one way or the other, because the purpose of revoking or suspending a driver's license is to prevent the offender from driving a motor vehicle upon the highways of this State during the period of suspension or revocation. ROADS; STATE HIGHWAY DEPARTMENT-Federal Statute Title 23 Section 55 U. S. C. A. Diversion of highway taxation funds-penalty. May 19, 1939 Committee on Economy and Efficiency I have your letter of May 17, 1939, in which you ask the following questions: "If any State funds allocated to the Highway Department should be diverted, what loss would be occasioned by Federal laws of Federal funds?" Since your letter is addressed to me and to the Chairman of the State Highway Board jointly, with the request that each reply thereto insofar as it falls in his respective sphere, I am replying simply as to the legal phase of the question involved. The applicable statute with reference to this question is found in Section 55 of Title 23 of the U. S. Code Annotated, which is quoted to you in full as follows: "Sec. 55. Gasoline and motor vehicle taxes; application to highway construction as prerequisite to Federal aid. Since it is unfair and unjust to tax-motor-vehicle transportation unless the proceeds of such taxation are applied to the construction, improvement, or maintenance of highways, after June 30, 1935, Federal aid for highway construction shall be extended only to those States that use at least the amounts now provided by law for such purposes in each State from State motor vehicle registration fees, licenses, gasoline taxes, and other special taxes on motor-vehicle owners and operators of all kinds for the construction, improvement, and maintenance of highways and administrative expenses in connection therewith, including the retirement of bonds for the payment of which such revenues have been pledged, and for no other purposes, under such regulations as the Secretary of Agriculture shall promulgate from time to time: Provided, that in no case shall the provisions of this section operate to deprive any State of more than one-third of the amount to which that State would be entitled under any apportionment hereafter made, for the fiscal year for which the apportionment is made. (June 18, 1934, c. 586, Sec. 12, 48 Stat. 995.) " ROADS; STATE HIGHWAY BOARD-Powers of Chairman and Members. May 6, 1940 State Highway Board of Georgia Atlanta, Georgia This will acknowledge receipt of your request of April 25, with which is enclosed a copy of a resolution adopted by the State Highway Board on that day. The resolution reads as follows: "BE IT RESOLVED by the State Highway Board of Georgia that the Chairman of the Highway Board be accorded all authority and duties placed 628 in him by law and with such other authority and duty as may be delegated to him by the State Highway Board of Georgia. In order to clarify and determine the legal duties fixed by law of the Chairman of the State Highway Board of Georgia and the members thereof, BE IT FURTHER RESOLVED that the Attorney General and the State Department of Law be requested to officially advise the State Highway Board of Georgia as to the rights, powers and duties of the Chairman of the State Highway Board and the members thereof. " Irrespective of whatever doubt may have existed since the Act of 1937 abolishing the State Highway Board (Ga. Laws 1937, page 905) and the Act creating the State Highway Board of Georgia (Ga. Laws 1937, page 906) as to the existence of the office of Chairman of the State Highway Board of Georgia, it has now been determined by the recent decisions of the Supreme Court of this State, in the cases of Patten, et al. v. Miller, No. 13216; Patten v. Miller, No. 13217; Patten v. Miller, No. 13247; Griffin, et al v. Miller, No. 13235; and Patten, et al v. Miller, No. 13246; that there is such an office. In the cases of Patten, et al v. Miller, No. 13218 and Patten v. Miller, No. 13217, the Court said: "As shown in decisions this day rendered in companion cases, there continues to be in this State such an office as Chairman of the State Highway Board. The law contemplates that the State Highway Board shall consist of three members, one of whom shall be Chairman. Georgia Laws 1937, page 906; Code Section 95-1603. " The powers of all public officers are defined by law and all persons must take notice thereof. See Georgia Code 1933, Section 89-903; Penitentiary Company No. 2 v. Gordon, Governor, 85 Ga. 159 (171). Public officers have no powers except such as are conferred by statute (Town of Decatur v. DeKalb County, 130 Ga. 483 (487), Wood v. Puritan Chemical Company, 178 Ga. 229) or those necessary for the due and efficient exercise of those expressly granted. Taylor v. State, 46 App. 387 (395) . In order to properly answer your question, therefore, it is necessary to consider the many Acts of the General Assembly which have dealt with the rights, powers and duties of the State Highway Board and the Chairman thereof. In 1916 the General Assembly first made provision for a Highway Department, which was to consist of the Prison Commission of Georgia, the State Geologist, the Dean of the College of Civil Engineering at Georgia Tech and the Professor of Highway Engineering at Georgia Tech (Georgia Laws 1916, pages 125-126). No office of chairman was created by the Act. The Act approved August 18, 1919 (Acts of 1919, pages 242-253) reorganizing and reconstituting the State Highway Department was the first to mention a chairmanship of the State Highway Board and provided in Article 3, Section 2, Paragraph 3: "Be it further enacted and it is hereby enacted by authority of the same: . . . Paragraph 3. That the Chairmanship of the State Highway Board shall vest every two years in that member who is entering his fifth year of service. " That Act did not define the powers or duties of the Chairman. By an Act approved August 10, 1921 (Acts of 1921, pages 199-203) amending the Act of 1919, Paragraph 3, Section 2 of the Act of 1919 was stricken and a new paragraph was inserted in lieu thereof, providing that the Governor designate the member of the Board who should act as Chairman thereof, and that such appointment should be confirmed by the Senate. The amending Act of 1921 629 did not define the powers and duties of the Chairman. This Act is codified as Section 95-1603 of the Code. By an Act approved August 21, 1922 (Acts of 1922, pages 115-117) Article 3, Section 3, Paragraph 2 of the Act of 1919 reorganizing and reconstituting the State Highway Department was amended by adding the following provision: "Provided, further, the State Highway Board shall determine the number of employees, designate their place of labor, prescribe their duties, fix their compensation, and also the salary of the Chairman (including the year 1922) who shall devote all of his time and attention to the discharge of the duties of his office, who shall represent the Board and is vested with all the power and authority of same when not in session. No person shall be appointed to or discharged from any position in the State Highway Department without the approval of the Board, or when it is not in session, by the Chairman. " However, by an Act approved August 27, 1925 (Acts of 1925, pages 208-211) the Act of 1919 was again amended by striking all of Paragraphs 1, 2, 3 and 4 of Section 3, Article 3, and inserting in lieu thereof new provisions with reference to the State Highway Engineer. There was also added as Paragraph 4 of Section 3, Article 3, the following: "Paragraph 4. That said Highway Board shall be the executive and administrative head of the State Highway Department of Georgia, with full power and authority and in full control of the Highway Department and all road work and highway work within this State as provided for under this Act." By striking all of Paragraph 2 of Article 3, Section 3, the General Assembly not only expressly repealed the proviso added to that Paragraph by the Act of 1922 vesting the Chairman .with all the power and authority of the Board when the same was not in session, but it did so by necessary implication in providing: "That said Highway Board shall be the executive and administrative head of the State Highway Department of Georgia, with full power and authority and in full control of the Highway Department and all road work and highway work within this State, as provided for under this Act." In the last quoted provision, the whole subject-matter of management and control of the State Highway Department was dealt with exhaustively. See Horn v. State, 114 Ga. 509; Butner v. Boifeuillet, 100 Ga. 743; City of Atlanta v. Goodman, 183 Ga. 834, and citations. It should also be pointed out that the Code of 1933, which was adopted by the General Assembly as the official Code of this State, includes as Section 95-1606 the provisions of the Act of 1925, hereinabove quoted, but omits the proviso of the Act of 1922, with reference to the Chairman of the Board, which the Act of 1925 repealed. This omission could not be attributed to oversight or mistake, since a part of the Act of 1922 which was not stricken by the Act of 1925 was codified as Section 95-1723 of the Code. (See editorial note appearing after Section 95-1610 Ga. Code Ann.) In the case of Kennedy v. McCardel, 88 Ga. 454. it was held: "After the code went into effect (January 1, 1863) a clerk of the inferior court was not one of the officers upon whose official attestation a deed conveying land was prepared for record. The Act of February 18, 1854 (Acts 1854-55, p. 26) was superseded by Section 2668 of the first code, correspond- 630 ing to Section 2706 of the Code of 1882. The difference between the code and the Act referred to is not attributable to oversight or mistake in attempting to codify the provisions of a statute, but to an obvious purpose to limit and modify the prior law, the whole subject-matter being deliberately considered and dealt with by the codifiers. Miller v. Southwestern Railroad Company, 55 Ga. 143." The omitted portion of the Act of 1922 was also in clear conflict with Section 95-1606 of the Code which made the State Highway Board the executive and administrative head of the Department, with full power and authority and in full control of the Highway Department and all road work and highway work within this State, as provided for under Chapters 95-15 to 95-17, and which made no exceptions. In the case of Barnes v. Carter, 120 Ga. 895, it was held: "It is the duty of the receiver of tax returns to issue executions for taxes against unreturned wild lands. Pol Code, Section 821. Whether the provisions of the Act of December 13, 1822 (Acts of 1882-1883, page 47) were omitted unintentionally, or because of a question as to the sufficiency of the title, this code section is exhaustive of the law on the subject. A tax fi. fa. issued against returned wild land by the tax collector is without authority of law, and a sale of land thereunder is void. " The conclusion that the provision of the Act of 1922 was repealed by the Act of 1925 and by the adoption of the code is further confirmed by the Act approved March 3, 1937 (Acts of 1937, page 906) which provides that the State Highway Department shall be managed and controlled by the State Highway Board, which shall consist of three members, to be appointed by the Governor and confirmed by the Senate, and by the Act approved February 16, 1938 (Acts 1937-1938 Extra Session, page 528) providing that the members of the State Highway Board shall devote their full time to the performance of the duties of their office. By an Act approved August 23, 1927 (Acts of 1927, pages 370-374) it was provided that where certain corporations or individuals described in that Act institute a proceeding to condemn a public road or highway that is a part of the State highway system or jurisdiction or control of which has been taken over or assumed by the State Highway Board or other State authorities, the notice of such intention shall be addressed and served upon the Chairman of the State Highway Board or such other official as may thereafter be vested with the supervision and the control of the State Highway System, and the official so notified and served shall act for and in behalf of the State in the appointment of an assessor and in all other respects as provided in the general law with respect to the owner or owners of property sought to be condemned. See Code Sections 36-808 and 36-809. By an Act approved August 28, 1931 (Acts of 1931, pages 261-264) directing the Governor to assign and set apart the rentals of the W. & A. Railroad for certain periods as special Treasury funds, to draw warrants against said special funds, and providing for the sale of said warrants to the State Highway Board, it was provided in Section 5 thereof: "Provided, that if the Governor and Chairman of the Highway Board deem it advisable to sell the amount of the rental of the W & A Railroad set out in this section, that they be authorized to do so under the same terms and conditions as set out in this Act for the purpose of matching regular 631 Federal aid or any emergency fund which may be offered the State Highway Board by the Federal Government. " However, the power vested in the Chairman, in conjunction with the Governor, by this Act, having been executed, has become functus officio, i. e., fully accomplished and therefore of no further force and authority. By an Act approved March 1, 1933 (Acts ofl933, pages 161-172) which declared certain sums due the several counties and the Coastal Highway District and provided that the State Highway Department of Georgia should issue certificates of indebtedness to the several counties of the State and to the Coastal Highway District, Section 2 thereof required the certificates to be executed by the Chairman of the Highway Department, since Section 8 of the Act required the State Highway Department to proceed to carry into effect the provisions of the Act within four months of its approval, this duty also has, undoubtedly, become functus officio. See Code Sections 95-2103, 95-2104 and 95-2108. By an Act approved March 8, 1937 (Acts of 1937, pages 291-294) , the State Planning Board was created and the Chairman of the State Highway Board or a member of such Board designated by him was made a member of the State Planning Board. In an Act approved March 29, 1937 (Acts of 1937, pages 503-515) amending Chapter 40-19 of the Code of 1933 known as the Chapter creating the Supervisor of Purchases within the Executive Department, the Chairman of the Highway Board was made a member of the State Purchasing Board. However, by an Act approved March 24, 1939 (Acts of 1939, pages 160-177) amending the Act of 1937, the State Purchasing Board was abolished and all of its rights, powers and duties were transferred to the Supervisor of Purchases. By an Act approved March 30, 1937 (Acts of 1937, pages 483-484) amending Section 77-301 of the Georgia Code of 1933, the Chairman of the State Highway Commission was made an ex officio member of the State Prison Commission. However, by an Act approved February 12, 1938 (Acts of 1937-1938 Extra Sessions, pages 202-203) , this ex officio membership on the State Prison Commission was abolished. By an Act approved March 19, 1937 (Acts of 1937, pages 322-355) creating a Department of Public Safety for Georgia, the Chairman of the Highway Board was made a member of the Department of Public Safety. In addition to those rights, powers and duties which are specifically imposed upon the Chairman of the Highway Board by statute and which have not been repealed or become functus officio, the title of Chairman necessarily carries with it the burden of duties not common to mere membership of the Board. In its opinion in the cases of Patten, et al v. Miller, No. 13247, and Griffin, et al v. Miller, et al, No. 13235, the Supreme Court said: "As already pointed out the statutes provide for the position of Chairman. The title alone necessarily carries with it the burden of duties not common to mere membership on the Board. The Chairman of a Board is the presiding parliamentary and administrative officer. His duties as such are manifold and well-recognized though perhaps not subject to any exact definition or enumeration. " And in the case of Patten, et al v. Miller, No. 13246, it was said: "The very title, ~Chairman of the Board, carries with it the idea that the occupant of such office has certain duties, such as presiding at board meetings, etc., which are not shared by the other members. " The title of chairman is: "A name given to the presiding officer of an assembly, public meeting, convention, deliberative or legislative body, board 632 of directors, committee, etc . . . " 14 C. J. S. 350. Black's Law Dictionary. Ballantine's Law Dictionary. A chairman is: "(1) The presiding officer of a deliberative body, legislative or otherwise; e. g. the speaker of a house of assembly, or of the house of representatives, or the presiding member of a board of directors of a corporation or association ... " Cyclopedic Law Dictionary. Repalje and Lawrence Law Dictionary. "One who presides over a meeting of any character. " English's Dictionary of Words and Phrases used in ancient and modern law. Webster defines "presides" as meaning: "To occupy the place of authority, as of president, chairman, moderator, etc.; to direct, control, or regulate proceedings as chief officer; as, to preside at a public meeting; to preside over the Senate. " Thus while the State Highway Department is managed and controlled by the State Highway Board (Acts of 1937, page 906), the Chairman of the Board is the proper parliamentary officer to preside at the meetings of the Board for the purpose of directing or regulating proceedings and seeing that the meetings are conducted in an orderly manner. The Chairman of the Board, however, by virtue of such office or of his title as Chairman, does not acquire the authority to perform the powers and duties vested by the General Assembly in the State Highway Board. In the case of Williams, et al v. Board of Commissioners of Broadwater County, 72 Pac. 755 (Mont.), it appeared that the county commissioners at a special meeting had employed George Lambert and another to index the records of the county and ordered the county clerk to give them access to his office and the records therein. This he refused to do. After adjournment of the Board, the Chairman, meeting Lambert on the street, directed him to employ counsel for the purpose of bringing an action against the county clerk, and told Lambert that the county would pay the bill. The court said: "This board, having supervision over the official conduct of all county officers, and generally over all county business, is one of considerable dignity and power; and the statutes contemplate that its meetings shall be held and conducted in an orderly and businesslike way. To bind the county by its contracts, it must act as an entity, arid within the scope of its authority. Its members may not discharge its important governmental functions by casual sittings on drygoods boxes, or by accidental meetings on the public streets; and its chairman, unless lawfully authorized by the board to do some act, or acts, has no more power than has any other member of the board. The statutes do not vest the power of the county in three commissioners acting individually, but in them as a single body; and the board can act only when legally convened. " (Emphasis supplied.) In the case of Plumley, Administratrix v. County of Whiteside, 164 Ill. App. 621, it was held: "Action taken by the chairman of the county board and a committee appointed by such chairman while the board was not in session is not the equivalent of action by the county board. " In the case of Short v. Langston, 102 S. W. 236, the Court of Appeals of Kentucky said: 633 "Section 4434, Ky. St. 1903, among other things, provides: 'The trustee having the shortest time to serve shall be chairman of the board of trustees, whose duty it shall be to preside at all its meetings and to make the reports, and to perform all other such acts and duties as required by law of trustees; and in case of neglect or non-performance of duty, the one so remiss of duty shall be subject to like fines and penalties as imposed by law on trustees for neglect of duty or other violations of law. ' By this provision the trustee having the shortest time to serve is chairman. It is his duty to preside at all meetings of the board, to make the reports, and to perform all other such duties as are required by law of a school trustee; but this does not make him the board or make his act the act of the ]:JOard. He has no more authority as to matters required of the trustees than any other trustee. He is to report the action of the board, and is 'to perform all other such acts and duties as required by law' of any other trustee. " (Emphasis supplied.) The court held, therefore, that a census certified to by only the Chairman of the Board of Trustees was not the act of the Board. The resolution of the State Highway Board also requests an opinion as to the rights, powers and duties of the members of the Board. A discussion of the rights, powers and duties of the members of the State Highway Board necessarily includes those possessed by the Chairman by virtue of his office as a member of the Board. The management and control of the State Highway Department is vested in the State Highway Board and not in the individual members thereof or in any one individual officer. (Acts 1937, page 906. ) The general rule is stated in Corpus Juris as follows: "In the absence of a statutory provision to the contrary, where official authority is conferred upon a board or commission composed of three or more persons, such authority may be exercised by a majority of the members of the board, but it may not be exercised by a single member of such body, or by a minority . . . " (46 C. J. 1034, Section 99.) (Emphasis supplied.) The universal rule that, in the absence of contrary provisions, a majority of a board may exercise the official authority conferred upon it was derived from the English common law and is but the embodiment of a fundamental and well-recognized democratic principle. In Throop on Public Officers, page 110, Section 105, it is said: "But the common law recognizes a distinction, which has been embodied in statutes of most of the states of the Union, between the execution of such a power (one of private trust) and of a power pertaining to the administration of public affairs. Where six persons had been appointed pursuant to an act of parliament, as 'searchers' to determine as to the quality of certain tanned hides and four condemned the hides and the other two refused to do so, it was held, by the opinion of all the judges, that this was in legal effect the condemnation of six. 'I think it is now pretty well established, ' said Eyre Ch. J., 'that where a number of persons are entrusted with powers, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.' (Grindley v. Barker, 1 Bos. and Pul. 229.) " (Parentheses supplied.) The democratic principle of majority rule hereinabove stated, has not only been followed in more than one hundred and fifty cases from the courts of final jurisdiction of most of the states of the Union but as pointed out in the fore- 634 going quotation most of the states have embodied the principle and rule in statutes. As early as the case of Johnson v. The State, 1 Ga. 721, it was held by the Supreme Court of this State that since the law orgaruzing the inferior court of the County of Muscogee constitutes five justices the court, the concurrence of a majority of the whole number of justices is therefore necessary to the validity of their action. In the case of Beall v. The State, 9 Ga. 367, it was held: "When a public trust or duty is required to be done by a definite number of persons, a majority of that definite number may act; as where five commissioners were appointed by the inferior court of Marion County to assess the depreciation of property in the Town of Tazewell, caused by the removal of the county site therefrom: Held, that three commissioners being a majority of the five, were competent to act and make the assessment. " (Emphasis supplied.) In the Beall case, it was further held that however desirable it may have been for all the commissioners to have had notice and been present when the assessment was made, such notice and presence was not indispensably necessary to the validity o( the certificate of assessment executed by a majority of the Commissioners. In the same general connection, see Stevenson v. The State, 69 Ga. 68; Roby v. The State, 74 Ga. 812; Smith v. The State, 90 Ga. 133; City of Blakely v. Singletary, 138 Ga. 632; Marshall v. Walker, 183 Ga. 44. On November 8, 1912, the Railroad Commission of Georgia composed of five members passed an order to which two of the members dissented. The Supreme Court held, in the case of Railroad Commission of Georgia v. L. & N. R. R. Co., 140 Ga. 817: "Where an order is promulgated by the Railroad Commission, although a minority of the members thereof may dissent, the order passed by the majority stands as the official action of the body, and is to be dealt with as such." The rule announced in the foregoing cases has not only been consistently followed by the courts of this State but it is also enacted into statute. Section 102-102 of the Georgia Code of 1933 provides in part: "The following rules shall govern the construction of all statutory enactments: . . . (5) A joint authority given to any number of persons, or officers, may be executed by a majority of them, unless it is otherwise declared. " As pointed out by the Supreme Court in its recent decisions in the controversy over the Chairmanship of the Highway Board, the designation of one of the members of the Highway Board as Chairman carries with it, by necessary implication, the idea that that member has "the burden of certain duties not common to a mere membership on the board." These are what may be properly called parliamentary and administrative functions. In my opinion, however, this does not mean that the General Assembly has, in creating a 635 Chairmanship of the Highway Board, necessarily given or delegated to the member holding that title the sole right and authority to perform any particular administrative duties. The designation is not per se a grant of power but is descriptive of the member who may be expected by the Board to attend to matters not calling for the action of the Board. With the possible exception of presiding at Board meetings, the administrative functions to be performed by the Chairman are to my mind variable, depending upon the modus operandi marked out by the Board for the execution of its functions of carrying on the work of the Highway Department. The serVices falling within this category to be performed by the Chairman for the Board are subject to the superior authority and will of the Board itself. In this View, in the absence of any contrary action by the Board, the Chairman would be under the duty and would have the right, as between the Chairman and any other indiVidual member of the Board, of performing many administrative acts wh'ch can not be exhaustively defined and enumerated. The Board may properly call upon the Chairman to perform any or all acts for it, not delegated by the General Assembly to other officers, and which do not call for execution by the Board itself; or the Board may provide other legitimate means for their execution. In other words, it is my belief that the General Assembly in creating a Chairmanship of the Highway Board did so for the convenience of the Board, in that the Board is privileged to expect and to call upon such member for the performance of duties or services not calling for the action of the Board or delegated by the General Assembly to another officer, but that as a general rule, the Board has the right to determine and to provide how, in what manner and by whom particular administrative acts shall be performed. From the foregoing statutes, decisions and authorities, I reach the definite opinion that: The Chairman of tbe State Highway Board is the proper officer to be served in certain cases with notice of proceedings to condemn roads that are a part of the State Highway System and he shall act for the State in the appointment of an assessor and in other respects as provided in the general law with respect to the owner of property sought to be condemned; he or a member of the Board designated by him is a member of the State Planning Board; he is a member of the Department of Public Safety; he is the proper parliamentary officer to preside at the meetings of the Board for the purpose of regulating proceedings. The Chairman of the Board does not acquire the authority, by virtue of such office, to perform the powers and duties vested by the General Assembly in the State Highway Board. No member of the Board acting individually may perform the powers and duties vested by the Legislature in the State Highway Board but, in accordance with the fundamental and democratic rule of the majority, such authority may be exercised by a majority of the members of the Board. I am of the opinion that the General Assembly of this State intended to invest, and did invest, the administration of State highway affairs in a State Highway Department managed and controlled by the State Highway Board of Georgia consisting of three members with one of the three acting as chairman by virtue of designation by the Governor and confirmation by the Senate. I am of the further opinion that the General Assembly intended that the State Highway Board should administer the State Highway Department, its functions and affairs in an orderly, business-like and harmonious manner, ever mindful of the trusteeship reposed by law in the Board. 636 ROADS; STATE HIGHWAY BOARD-Power to grant permit to pipe line company to cross State highways. January 31, 1940 Hon. E. D. Rivers Governor This will acknowledge receipt of your letter of January 11th, in which you state: "I am advised by the State Highway Department that the Southeastern Pipe Line Company has requested of that Department permission to cross State highways in a number of counties in Georgia for the purpose of constructing a pipe line for the transportation of petroleum products from Port St. Joe, Florida, to Chattanooga, Tennessee, it being the purpose of the pipe line company to construct this pipe line underground entirely across the State of Georgia. "Please furnish me your official opinion as to whether or not the Governor or the State Highway Board is authorized by law to grant to the pipe line company the right to construct its line under or across the State highways or any other State-owned property. "In this connection, I call your attention to the decision by the Supreme Court of Georgia in the case of Western Union Telegraph Company y. Western & Atlantic Railroad, 142 Ga. 532." The question presented involves the right of the State with respect to the use and control of certain of its property and is therefore of supreme importance. With reference to the State highways, the answer to your question must be considered separately in cases where the State owns the fee to the property upon which the State highway is located and in those cases where it simply has an easement in such property for highway purposes, with the fee remaining in the abutting property owners. It is well settled that the State may own, and does own, either an easement in property for highway purposes or the fee in such property. State Highway Department v. H. G. Hastings Co., 187 Ga. 204 (5) ; Calfee v. Jones, 54 Ga. App. 481 (2). Where the State has only an easement over property for highway purposes and the fee remains in the abutting property owner, the owner of the fee has the right to continue to use the land in any manner not inconsistent with the public right, or which does not impair the enjoyment of the easement. Donalson v. Georgia Power & Light Company, 175 Ga. 462 (2); Adair v. City of Atlanta, 124 Ga. 288 (2). Thus, in the case of Kansas Natural Gas Company v. Haskell, 172 Fed. 546, it was held that the fee to the land composing rural highways not being vested in the State but in the abutting landowners, subject only to an easement in the public to use tbe same for highway purposes, the State had no power to prohibit the laying and maintaining of pipe lines over or across such highways by contract with such owners for the transportation of natural gas from within to without the State in interstate commerce where it did not interfere with the easement in the public and subject to such reasonable rules and regulations as the State might impose in the interest of the public health and safety. In the case of West v. Maryland Gas Transmission Corporation, 159 Atlantic, 758 (Md.), it was held that the owner in fee of land in open country over which a public 637 way has been granted may rightfully lay a pipe line beneath the road that does not interfere with the use of it without procuring a franchise from the authorities in control of the public roads. See in the same connection: Town of Amherst v. Tidewater Oil Sales Corp., 272 N. Y. Supp. 152; Colegrove Water Company v. City of Hollywood, 90 Pac. 1053 (Calif.). The owner of the fee having the right to continue to use the land in any manner which is not inconsistent with the public right and which does not impair the enjoyment of the easement may convey his rights to another. Kansas Natural Gas Company v. Haskell, supra. West v. Maryland Gas Transmission Company, supra. Colegrove Water Company v. City of Hollywood, supra. The right of the owner of the fee or one acquiring a right under him to the use of such property, is, of course, subject to the dominant easement of the public and may not be exercised in any manner which will impair the enjoyment of the easement. Thus it necessarily follows that the authorities in charge of the streets or highways may make reasonable rules and regulations governing the use of such property, including the manner of constructing the pipes and use of the same, as are necessary to protect the enjoyment of the easement and the health and safety of the citizens of the State. Kansas Natural Gas Company v. Haskell, supra; West v. Maryland Gas Transmission Company, supra; Colegrove Water Company v. City of Hollywood, supra; Hanbury v. Woodward Lumber Company, 98 Ga. 54. It is my definite opinion, therefore, that where the State holds only an easement in a public highway and the Southeastern Pipe Line Company has been granted the rights of the fee owner of such property, it may, insofar as the State is concerned, construct its pipes under the State highway, if the proper authority determines that the construction and operation of such pipe line will be not inconsistent with the public easement or adversely affect the safety and health of the citizens. The proper authority to determine under what conditions a pipe line may be constructed and used across the property in which the State holds an easement for highway purposes (or the proper authority to prohibit such use if it be deemed that the intended use would interfere with the public easement or adversely affect the safety or health of the people) is the State Highway Board, which, by the Act approved March 3, 1937 (Acts of 1937, page 906) is vested with the management and control of the State Highway Department, the State Highway Department in turn being given supervision over the system of State-aid roads (95-1504, Ga. Code of 1933). The foregoing cases, however, do not deal with the question presented where the fee to the property upon which the State highway is located is in the State. It is my information that the Southeastern Pipe Line Company is seeking to construct a pipe line across the State of Georgia for the purpose of transporting petroleum products under the authority of an Act approved March 27, 1937, (Acts of 1937, pages 432, 433), which Act amended Section 36-202 of the Georgia Code of 1933 so that said section, as amended, reads in part as follows: "36-202. To what and to whom method of condemnation applicable.The method of condemnation of property and easement of damages hereinafter provided shall apply. . . to persons who are or may be engaged in constructing or operating pipe lines for the transportation and/or distribution of natural or artificial gas; and upon persons who are or may be engaged in furnishing natural or artificial gas for lighting, heating and/or power pur- 638 poses and for the purpose of running pipe lines for the transportation and/ or distribution of petroleum products. " It is impossible, of course, for me to pass upon the rights derived by the Southeastern Pipe Line Company under the Act of 1937, since I am not acquainted with the charter powers or other facts necessary to inform me if the pipe line constructed by that particular company will be devoted to a public or a private use. The law of eminent domain will not authorize the taking of private property for any purpose other than that of public use. Loughbridge v. Harris, 42 Ga. 500; Bradley v. Lithonia and Arabia Mt. R. R. Co., 141 Ga. 741; Rogers v. Toccoa Electric Power Co., 163 Ga. 919. It would also be presumptuous on my part to pass upon the constitutionality and validity of the Act of 1937 or whether this Act is sufficient to grant the right of eminent domain to companies "running pipe lines for the transportation and/or distribution of petroleum products", since I am reliably informed that these issues are already pending in the courts for judicial determination. For the purposes of this opinion, however, I must assume that the Southeastern Pipe Line Company has power under its charter to construct the pipe line, and that the authority of the company to exercise the right of eminent domain by reason of the Act of 1937 has been finally adjudicated by the courts in favor of that company. While it is true that as a general rule.Iands owned by the State cannot be taken for a public use under a general power to condemn land, the authority may arise from express statutory enactment or from necessary implication. 20 Corpus Juris 619, Section 109; Wilson v. East Jersey Water Co., 79 Atlantic 440 (N. J.) ; Attorney General v. Stephens, 22 American Decisions, 526 (N. J.) . The Supreme Court of this State has also recognized the rule that under a general grant of power to condemn property for public use, the Legislature may, by necessary implication, grant permission to cross streets owned in fee by the State of Georgia. In the case of Davis v. East Tennessee Railway Co., 87 Ga. 605, the Supreme Court denied the authority of the East Tennessee, Virginia and Georgia Railway Company to operate its railway longitudinally upon the public streets of the City of Macon. The fee to the streets of the City of Macon was in the State. The Act incorporating the railroad, of which the East Tennessee Railway Company was the successor, granted it "full power and authority to survey, lay out, construct, equip, use and enjoy a railroad from the City of Macon to the City of Atlanta, " and the further power to connect at each terminus with the roads of other companies. In that case the court said (page 609) : " 'Therefore, the mere grant of a charter right to build a railroad between two points, does not carry with it, by necessary implication, the right to occupy longitudinally a highway lying in the general route contemplated, unless the topography of the ground be such (as, for instance, the Notch of the White Mountains) as to physically preclude a location by reasonable intendment, to have been designed on any other line. ' Rorer on Railroads, 502. See, also, Daly v. Railroad Co., supra. Nothing appears on the face of the legislation itself, nor from any evidence in the re'cord before us, tending to show that it would be necessary to use any public street in order to construct a railroad from the City of Macon to the City of Atlanta, or to connect it with any other road at Macon, including the road from Macon to Brunswick, or to unite its tracks with that and other roads terminating in 639 said city so that cars could be transferred from road to road without detention or breaking bulk. That to accomplish these objects some, and perhaps many, of the streets would have to be crossed, is a necessary implication, and the presence of that serves to furnish a good example of what a necessary implication is. Authority to run a railroad through a city involves in its terms the privilege of crossing the streets, but not of occupying them longitudinally. " The rule of the Davis case with reference to crossing streets where the fee is in the State is founded upon the same principle as the general rule applicable to the taking for public use of property already devoted to a public use, the courts having long recognized a distinction between a grant by necessary implication of authority to cross streets, highways, railroads, and other property dedicated to public travel, and the right to occupy such property longitudinally. Nichols on Eminent Domain, Volume 2, page 995, Section 361; Minn. Power & Light Co. v. State, 225 N. W. 164 (Minn.) ; 20 c. J. 616; City Council of Augusta v. Ga. RR & Banking Co., 98 Ga. 161; Town of Poulan v. A. C. L. Railroad Co., 123 Ga. 605. Ga. Northern Ry. Co. v. Moultrie, 163 Ga. 513; Starr v. Camden & Atlantic R. R. Co., 24 N. J. Law, 592; Inhabitants of Springfield v. Conn. River R. R. Co., 4 Cush (Mass). 63; Hyde v. Minn. D. & P. Ry. Co., 136 N. W. 92 (S. Dak.) . Thus, in the case of Inhabitants of Township of Raritan v. Port Reading Ry. Co., 23 Atlantic, 127 (N. J.), it was said: "The defendant is incorporated under the general railroad law, and by that statute acquires whatever right it possesses to cross highways. That it may cross a highway cannot be questioned. That right is given by implication from the bare authority to build a railroad connecting distant points between which there exist highways that must be crossed, and as well from expressions in the statute which assume its existence; and, as it is impossible for a railroad to cross a highway without some incidental interference with it, such interference is also of necessity made lawful. These rights, however, must be limited to the necessity of the railroad in crossing. " It is to be presumed that the Legislature meant something by the passage of the Act of 1937. Central of Georgia Ry. Co. v. State of Georgia, 104 Ga. 831 (839) ; Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656; Scott v. Mayor and Council of Mt. Airy, 186 Ga. 652. The construction of a statute must square with common sense and sound reasoning. Blalock v. The State, 166 Ga. 465 (470). That construction of a statute is to be preferred which will give effect to the legislative intent and preserve the Act rather than that construction which will necessarily destroy it. Wellmaker v. Terrell3 Ga. App. 791. The General Assembly, at the time of the passage of the Act of 1937, must be presumed to have known that pipe lines were in use in a large number of states for the transportation of petroleum products over great areas and in many instances across entire states. The General Assembly must also be presumed to have known that under our Georgia system of county site to county site State 640 highways, no pipe line for the transportation of petroleum products or any other commodity could be constructed for more than a few miles at any point within the State without crossing one or more State highways. Thus, unless the permission to cross State highways was granted by necessary implication, the Act of 1937 is, in practical effect, a mere nullity. At the time the Act of 1937 was passed, the Legislature must be presumed to have had knowledge of the administrative practice of the State Highway Department with reference to the granting of permits to cross State highways. To illustrate, the State Highway Board has granted permits upon compliance with the rules and regulations established by such Board to construct pipe lines crossing under the State highways to persons engaged in the construction or operation of pipe lines for the transportation and distribution of natural or artificial gas, although no reference is made to the authority of such persons to cross the State highway in the Act of the General assembly granting the power of eminent domain to persons engaged in such activities. (See Acts 1929, pp. 219, 220; Code 36-202.) Printed forms of permits setting out the rules and regulations under which pipe lines, water mains, poles, traffic lights, etc., may be constructed under or over the State highways have long been in use by the State Highway Department. Section 5235 of the Georgia Code of 1910, as amended by the Act of 1929, was re-enacted by the Legislature as Section 36-202 of the Georgia Code of 1933, and in the Act of 1937, the Legislature simply amended Section 36-202 by adding at the end of that section the following: "And for the purpose of running pipe lines for the transportation and/or distribution of petroleum products." The Act of 1919 (Acts of 1919, pp. 242-253) as amended, reorganizing the State Highway Department and defining its powers and duties, has also been re-enacted by the Legislature as Chapters 95-15 to 95-17 of the 1933 Code. Administrative practice acquiesced in by public officials and the General Assembly will be presumed to be correct. Epping v. City of Columbus, 117 Ga. 263 (273); Solomon v. The Commissioners of Cartersville, 41 Ga. 157 (161) ; Howell v. State, 71 Ga. 224; Elder v. Home Building & Loan Association, 3 S. E. (2d) 75. And especially will administrative interpretation long and consistently followed be given great weight when the Legislature, with that construction in mind, has re-enacted the statute without change. Koshland v. Helvering, 298 U. S. 441; 80 L. Ed. 1268, 1272; Reynolds v. Helvering, 306 U. S. 110, 83 L. Ed. 536. It is my clear opinion, therefore, that the Legislature has, by necessary implication of law, granted to persons engaged in constructing or operating "pipe lines for the transportation and/or distribution of petroleum products" permission to cross the highways of this State, subject to the dominant use of such property for highway purposes. The State Highway Board, being vested with the management and control of the State Highway Department, is the public authority in charge of the State highways, the State Highway Department being imposed by statute with the duty of designating, improving, supervising, constructing and maintaining a system of State-aid roads (95-1504, Code of 1933) , and with other broad general powers and duties. (Chapters 95-15 to 95-17, Code of 1933, as amended.) The State Highway Board, therefore, must determine whether the construction and operation of the pipe line across the State highways will conflict with the use of such property for highway purposes or endanger the public in their use of the State highways. The State Highway 641 Board may prohibit the crossing or use of the property upon which the highway is located by a pipe line if it should determine that the crossing or use of the property for such purposes would constitute a hazard to the public health or safety or would interfere with the State's enjoyment of tl1e property in question. If, however, the State Highway Board should determine to grant such permit, it may also make reasonable rules and regulations governing the construction and use of the pipe line across the State highways to protect the highways and the safety and health of the traveling public. I do not believe, however, that the Act of 1937 grants, by necessary implication, permission to persons engaged in constructing or operating such pipe lines to lay pipes longitudinally upon or under State highways, unless the right granted by that Act cannot be exercised without such permission. Davis v. East Tennessee, Virginia & Georgia Ry. Co., supra; Western Union Telegraph Co. v. Western & Atlantic R. R., 142 Ga. 532. With reference to State owned property other than State highways and the authority of the Governor thereover, it will be necessary to know the particular property involved, since in determining whether or not authority arises by necessary implication in a given case, the legislative intent is to be arrived at by applying the statute to the subject matter. City Council of Augusta v. Ga. R. R. & Banking Co., supra. In your letter you call my attention to the case of Western Union Telegraph Company v. Western & Atlantic Railroad, supra. There the telegraph company sought to condemn, for the purpose of erecting its poles and lines thereon, a longitudinal easement upon the right of way of the Western and Atlantic Railroad, the fee to which was in the State. Here we are dealing with the question of whether the General Assembly has by necessary implication given its permission to cross the State highways. As pointed out in the earlier paragraphs of this opinion, the courts have clearly distinguished between the right to cross and the right to superimpose a longitudinal easement upon State property. In addition to this, it is obvious that the power granted by the Act of 1937 to persons constructing or operating pipe lines for the purposes stated in that Act could not be exercised.without crossing the State highways. In the Western Union case, it must be conceded that the telegraph line could have been constructed, although possibly at some additional expense, without imposing a longitudinal easement upon the State's property. Thus, the necessary implication of law arises in the former case. It does not in the latter. SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Duties of Director, Chairman and Members. June 5, 1940 Honorable H. T. Dobbs, Chairman State Board of Public Welfare I am pleased to acknowledge yours of May 31, 1940, stating that you have been appointed a member of the State Board of Public Welfare, and elected by the Board as its Chairman. You request me to advise what your duties are as Chairman, and the duties of the State Board of Public Welfare as distinguished from the duties of the State Director. The State Board of Public Welfare, as it now exists, was created under "The Welfare Reorganization Act of 1937" (Ga. L. 1937, pp. 355, 369). By the express terms of Section 17 of said act, the Board of Public Welfare which had been previously created and established by the Act of 1919 (Ga. L. 1919, p. 222, 642 228) the powers and duties of which Board subsequently transferred to and vested in the Board of Eleemosynary Institutions, was abolished, and Section 17 further provided that "such activities and authority as have heretofore been carried on by said Board and not in conflict with the present act, are hereby transferred to and vested in the State Board of Public Welfare of Georgia". By Section 18 of the same act, the Board of Control of eleemosynary institutions created under the Reorganization Act of 1931 (Ga. L. 1931, pp. 7, 15) was abolished, and the activities, authority and delegated duties which had theretofore been carried on by said Board were transferred and removed to the State Department of Public Welfare, to be administered through said State Department as created in the Act of 1937, with the sole exception that the authority and duties of supervising and conducting the management of the State Tuberculosis Sanatorium were transferred and removed to the State Board of Health of Georgia. After a careful review of the various acts referred to above, I find that the only duties of the Chairman of the State Board of Public Welfare, not enjoyed in common with the other members of said Board, are as follows: 1. To act as a presiding and parliamentary officer at meetings of the Board. 2. To appoint all necessary committees not otherwise provided by law, and especially to appoint a committee of not less than two members of the Board to make "at least one annual visit to and inspection of each of the institutions . . . made subordinate to it, and report their findings and conclusions to the Board in writing." (Code Section 35-109). 3. To approve or disapprove vouchers of members of the Board for per diem, expenses and mileage earned and incurred by the members of the Board in the performance of their official duties. As to the duties of the State Board of Public Welfare as distinguished from duties of the Director of the Department of Public Welfare, I beg to advise that this office has previously rendered several official opinions dealing with this subject. I inclose herewith official opinion of July 24, 1939, to Honorable Braswell Deen, Director, State Department of Public Welfare, which deals comprehensively with the relative powers and duties of the Director and the State Board with respect to the employment and dismissal of employees and other personnel in the institutions under the jurisdiction of the Board. In an opinion of Honorable M. J. Yeomans, Attorney General, under date of June 11, 1938, to Honorable Lamar Murdaugh, then Director of the State Department of Public Welfare, it was stated: "Replying to your inquiry of recent date as to the appointment of officers for the various divisions of State Department of Public Welfare, I beg to advise briefly that after a review of the act I am of the opinion that appointments should be made by the Director of the State Department of Public Welfare under such terms and conditions as may be prescribed by the Board of Public Welfare. "The Board of Public Welfare under the act has general supervision. The director is the executive officer of the Board and, of course, acts in accordance with the rules and regulations formulated by the Board under the powers conferred in the act. " (Emphasis supplied.) These opinions were primarily based upon Sections 4, 5 and 7 of the Welfare Reorganization Act. These sections read as follows: "Section 4. Duties of the State Board. It shall be the duty of the State Board to serve as an advisory and policy forming Board advising with the director regarding the adoption of all policies, rules, and regulations for 643 the State Department. The State Board in consultation with the director shall have the power and it shall be their duty to fix minimum standards of service and personnel, and to formulate salary schedules for the classified service based upon training, experience, and general. ability of persons selected for positions in the State Department and County Departments of Public Welfare hereinafter created. " "Section 5. Duties of the Director. The director shall be appointed by the Governor on the basis of his training, ability, and experience in public welfare administration. His term shall run concurrently with that of the Governor and his salary shall be fixed at the sum of $6, 000. 00 per annum. Said director shall give bond for the faithful performance of his duties and the faithful accounting of all moneys coming into his hands as such director in such a manner and under such terms and conditions as may be prescribed and provided for by the Comptroller-General of the State of Georgia. The director shall serve as the executive and administrative officer of the State Department. He shall prepare and submit to the State Board for its approval an annual budget of all funds necessary to be appropriated by the Legislature for the State Department for the purposes of this Act, including in such budget an estimate of Federal funds which may be allotted to the State by the Federal Government for the purposes of this Act. He shall prepare annually a full report of the operations and administration of the State Department together with recommendations and suggestions, and such report shall be submitted to the Governor not later than three months after the close of the fiscal year. The Director shall appoint such personnel as may be necessary for the efficient per~ formance of the duties prescribed in this Act. " "Section 7. Department Organization. There shall be created in the Department such divisions as the State Department may find necessary for the effective administration of the State Department. The director shall have the power to allocate and reallocate functions among the divisions within the Department with the advice of the State Board. " Section 6 also sets out in detail various specific duties of the State Department of Public Welfare, which, of course, is under the executive and administrative direction of the Director. The relative duties of the State Board and the Director may be summarized briefly by saying that the powers and duties of the Board ani advisory and policy forming, whereas those of the Director are executive and administrative, he being charged with the duty of putting into execution the policies formed by the Board and of administering the affairs of the State Department of Public Welfare in accordance with the rules and regulations prescribed by the Board, and of employing necessary personnel in accordance with the minimum standards of service, the salary schedules and policies prescribed by the Board. That is to say, as to the employment of personnel, the Board fixes the minimum standard of service and personnel and sets up the salary schedules, and it is the duty of the Director to follow the same in making appointments of personnel. If the above does not cover all of the information desired by you I shall be pleased for you to call upon me for any other specific information or advice. 644 SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Power to borrow money. June 17, 1940 Honorable Braswell Deen, Director State Department of Public Welfare The Governor has requested me to render my opinion to you as to whether the State Board of Public Welfare can, under existing laws, negotiate a loan with a bank in the amount of $150, 000 and pledge as security contemplated revenue from the Chain Store Tax for the next fiscal year, beginning July 1, 1940. There is no subject about which the Constitution of this State has thrown more stringent restrictions, limitations and safe guards than that of the power of the State, its departments and political subdivision to create a debt. Article VII, Section III, Paragraph I of the Constitution provides: "Purposes for which contracted. No debt shall be contracted by, or on behalf of the State, except to supply such temporary deficit as may exist in the treasury in any year from necessary delay in collecting the taxes of that year, to repel invasion, suppress insurrection, and defend the State in time of war, to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, five hundred thousand dollars, and any loan made for this purpose shall be repaid out of the taxes levied for the year in which the loan is made. However, said debt may be increased in the sum of .three million, five hundred thousand dollars for the payment of the public-school teachers of the State only. The principal amount borrowed for payment of teachers to be repaid each year out of the common school appropriation, and the interest paid thereon to be paid each year out of the general funds of the State. " This paragraph of the Constitution must be construed together with Article VII, Section IV, Paragraph I which reads: "All laws authorizing the borrowing of money by or on behalf of the State shall specify the purpose for which the money is to be used and the money so obtained shall be used for the purpose specified and for no other. " When so construed, these provisions of the Constitution simply mean that no department of the State has the authority to borrow money by or on behalf of the State unless so authorized by a statute which specifically sets out "the purpose for which the money is to be used. " The last quoted paragraph of the Constitution cannot be construed otherwise than that it requires an express authorization by statute before any money can be borrowed under the provisions of Article VII, Section III, Paragraph I first above quoted. An implied power to borrow money for or on behalf of the State would not suffice and would not meet the requirements of Article VII, Section IV, Paragraph I. I am fortified in this position and construction by the fact that although Article VII, Section III, Paragraph I, on its face, apparently authorizes the borrowing of money to the extent of $3, 500, 000 for the payment of the public school teachers of the State it was necessary to enact a statute, now codified as Section 32-1301 of the Code, enabling the Governor to contract this debt and expressly providing the purpose for which the sums borrowed should be used, to wit: for the payment of the public school teachers. I have carefully examined the statutes creating the State Board of Public Welfare and prescribing the powers and duties of said Board. These statutes fail to confer any express power or duty upon said Board to borrow any sum of money for any purpose and to provide for the repayment thereof out of 645 revenues anticipated either from the Chain Store Tax or from any other tax. It necessarily follows, therefore, that the Board is without authority to negotiate the loan as contemplated. SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Power to require examination of personnel. August 27, 1940 Honorable E. P. Shull, Solicitor City Court of Lexington Lexington, Georgia I am pleased to acknowledge yours of the 23d instant in which you state that you have been requested to obtain from me a ruling as to whether it is legal to compel a Welfare worker to take an examination in order to hold his or her position under the Welfare Act, inasmuch as the legislature failed to pass the civil service bill. While I am not authorized to render you an official opinion upon this subject, due to the fact the law prescribing my duties limits me in giving official advice only to the Governor and to heads of the State Department with reference to official State matters. Consequently what is said in this letter is purely unofficial and is given you in a desire to be helpful. Under Section 4 of the Welfare Reorganization Act of 1937 (Georgia Laws 1937, pages 355, 358) it is provided in part: "The State Board in consultation with the director shall have the power and it shall be their duty to fix minimum standards of service and personnel, and to formulate salary schedules for the classified service based upon training, experience and general ability of persons selected for positions in the State Department and county departments of Public Welfare hereinafter created. (Emphasis supplied.) And in Section 6 of said act it is provided in part: "The State Department shall be charged with the administration or supervision of all county welfare departments of the State as hereinafter provided. The State Department shall: (7) Prescribe qualifications and salary standards for welfare personnel in State and county welfare departments. " Acting under this broad authority conferred by these statutes to prescribe qualifications and minimum standards of service and personnel, I am of the opinion that the State Department of Public Welfare and its Director is wholly within its authority in prescribing that one of the qualifications for the employment of a Welfare Worker is that such worker shall have successfully passed an examination to test his or her knowledge and fitness for the position in which employment is sought. It is rather difficult to conceive any more appropriate method for determining whether a person seeking a position as a Welfare worker shall qualify for the job than by giving such person a test or examination upon subjects to be dealt with by such a person when and if he or she is employed. 646 SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Power to remove employees. Hon. Braswell Deen, Director July 24, 1939 State Department of Public Welfare This will acknowledge receipt of your letter of July 7th in which you ask tha following questions: "1. 'In the event the head of one of the institutions under jurisdiction of the State Department of Public Welfare, or any other employee in the institution or institutions, should for any reason need to be removed and the Board desired to retain the employee while the Director deemed it proper that the employee be removed, does the Director have the power and au- thority under the existing laws to remove or 'fire' the employee or head of the institution? "2. Since the State Board of Public Welfare in accordance with the law and a former ruling by you, has the power to fix salary schedules and per- sonnel standards and the Director, having the power and authority to em- ploy personnel for the Department, does this power and authority of the Director hold also for employees in the institutions under jurisdiction of the Department, or is that power and authority of the Director to employ personnel and/or remove personnel limited to the personnel exclusive of the institutions? "3. Under the power and authority given the Director under the Re- organization Act to employ personnel, does this same power to employ carry with it the power to remove or 'fire' employees in the Department and in the institutions? "4. Is it not the intent of the law that the State Board of Public Welfare is to determine a general policy of administration in the Department and the institutions and that the administrative responsibility of carrying out this policy is upon the Director?" In s'Om!!"~respects your letter does not give me sufficient information to allow an exact answer since you do not designate the institution or institutions to which you have reference. For the purposes of this opinion however, I will assume that you have in mind the heads and employees of those State eleemosy- nary institutions whose appointments were specifically vested in the Board of Control of the eleemosynary institutions by Title 35 of the Georgia Code of 1933 prior to the Act of 1937, (Acts of 1937, pages 355-370), which Act abolished the Board of Control of the eleemosynary institutions and transferred the activi- ties, authority and delegated duties of said Board to the State Department of Public Welfare. Section 18 of the Act of 1937 hereinabove referred to, provides in part as follows: "Section 18. . . . The Board of Control of eleemosynary institutions heretofore created under and by virtue of an Act approved August 28, 1931 (Acts 1931, pages 7, 15) is hereby abolished. The activities, authority, and delegated duties which have heretofore been carried on by the Board of Control and defined in detail in Title 35 in its entirety of the 1933 Code of Georgia are hereby transferred and removed to the State Department of Public Welfare and all of such functions and activities heretofore entrusted to such Board of Control of Eleemosynary institutions shall hereafter be administered through the State Department as created in this Act; Pro- vided, however, that effective July 1, 1937, the authority and duties in 647 superVIsing and conducting the management of the State Tuberculosis Sanatorium, as laid down in Chapter 35-4 of the 1933 Code of Georgia are hereby transferred and removed to the State Board of Health of Georgia. " Section 6 of the Act. of 1937, in defining the activities of the State Depart- ment of Public Welfare, charges the Department with administering or super- vising the operation of State charitable and eleemosynary institutions. It will be noted that Section 18 of the Act specifically vests the activities, authority and delegated duties of the former Board of Control of eleemosynary institu- tions in "The State Department of Public Welfare." Section 5 of the Act which defines the duties of the Director of the Depart- ment provides in part, as follows: "Section 5. Duties of the Director. . . . The Director shall serve as the executive and administrative officer of the State Department. . . . The Director shall appoint such personnel as may be necessary for the efficient performance of the duties prescribed in this Act. " Thus, it will be noted that the Director is made the executive and adminis- trative officer of the State Department and is required to appoint personnel necessary for the efficient performance of the duties prescribed in the Act. Among the duties prescribed in the Act as heretofore pointed out, are the administration and supervision of the operation of State charitable and elee- mosynary institutions. By Section 4 of the Act the General Assembly defines the duties of the State Board of Public Welfare. It did not specifically give to such Board the authority to appoint the personnel of the State eleemosynary institutions, which appoint- ments were formerly vested in the Board of Control of eleemosynary institu- tions prior to the Act of 1937. Section 4 provides as follows: "Section 4. Duties of the State Board. It shall be the duty of the State Board to serve as an advisory and policy forming Board advising with the Director regarding the adoption of all policies, rules, and regulations for the State Department. The State Board in consultation with the director shall have the power and it shall be their duty to fix minimum standards of service and personnel, and to formulate salary schedules for the classified service based upon training, experience, and general ability of persons selected for positions in the State Department and County Departments of Public Welfare hereinafter created." In order to construe the Act as vesting the appointment of such personnel in the State Board of Public Welfare, it would be necessary to add to the express terms of that Act, provisions which were not included in the Act by the General Assembly. It is well settled that the courts in construing a statute can neither add to nor take away from it. State Revenue Commission v. Alexander, 54. App. 295; Banks v. Darden, 18 Ga. 318, 340; Calhoun v. McClendon, 42 Ga. 405, and Hopkins v. Long, 9 Ga. 261. It is my opinion therefore, that the General Assembly in expressly desig- nating the Director of the State Department of Public Welfare as an executive and administrative officer and in providing that the Director shall appoint such personnel as may be necessary for the efficient performance of the duties prescribed in the Act, intended to vest in the Director the appointment of the heads and employees of those State eleemosynary institutions whose appoint- ments were formerly vested in the Board of Control of eleemosynary institu- tions prior to the Act of 1937. Such appointments however, are subject to the provisions of Section 4 of the Act which makes it the duty of the Board of Pub- lic Welfare, in consultation with the Director, to fix the minimum standards 648 of service and personnel, and to formulate salary schedules for the classified service based upon training, experience, and general ability of persons selected. The authority of the Director to make such appointments would not of course include the officers and employees of the State Tuberculosis Sanatorium, which institution by Section 18 of the Act of 1937, is placed under the State Board of Health. You further inquire if the Director has the power and authority under the existing law to remove the employees or heads of the institutions appointed by him. It is the general rule that where the tenure of an office is not prescribed by law, the power to remove is an incident to the power to appoint. In such case the appointee holds at the pleasure of the appointing power, although it attempts to fix a definite term; and no formalities such as the preferring of charges or the granting of a hearing to the incumbent are necessary to the lawful exercise of the authority of removal. Wright v. Gamble 136 Ga. 376; Lentz v. City Council of Augusta 48 App. 555. It is my opinion therefore, that where the appointment of an officer or employee is vested in the Director of the State Department of Public Welfare, the power to remove such officer or employee is an incident to the power to appoint where the tenure of office or employment is not fixed by statute. However, the power to remove an employee without cause (as distinguished from a public officer) who is employed under a valid contract which fixes the term of employment,- is subject to the provisions of such contract defining the term of employment. Board of Education of Doerun v. Bacon 22 App. 72. SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Authority not given to sell water to others. May 18, 1940 Hon. Braswell Deen Director State Department of Public Welfare I am pleased to acknowledge yours of the 16th instant requesting my official opinion as to whether or not the State Board of Public Welfare has the authority to enter into a contract for the sale of water from its water system at the Milledgeville State Hospital, to the Commissioners of Baldwin County or the water authority created by the Commissioners of Baldwin County in accordance with the law, or to any persons ready, willing and able to buy, the water to be delivered to the purchaser from the Hospital mains at the Hospital property line. "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. " Code Section 89-903. The question, therefore, as to whether the State Board of Public Welfare has the authority to make a contract with respect to the subject matter referred to above must be determined by reviewing the statutes creating said Board and prescribing its powers, duties and obligations. If such statutes do not confer the power to make such a contract upon said Board, then it may not do so. If the power is conferred by statute to make such a contract, the Board would be authorized to enter into the same in the manner described. 649 When acting within the pale of its statutory powers, the Board could bind the State on a contract, but when acting beyond the scope of such authority, the State would not be bound. With these fundamental principles in mind, I have carefully reviewed the various statutes creating the State Board of Public Welfare (Georgia Laws 1937, p. 355) , as well as those statutes creating its predecessors, the Board of Public Welfare (Georgia Laws 1919, pp. 222-228) , and the Board of Control of Eleemosynary Institutions (Georgia Laws 1931, p. 7, Section 44A). I fail to find in any of these statutes where the power, duty or obligation has ever been placed upon the State Board of Public Welfare to furnish to any person, firm or corporation not under the jurisdiction of said Board any water, or to contract for the furnishing thereof to any person, firm or corporation not under its jurisdiction and care. While it is true that public officers have the implied power to do whatever acts or things which are necessary for the due and efficient performance of those powers expressly granted by statute (46 C. J. 1032) , the contemplated contract cannot be sustained under this doctrine. This is true for the reason that, in order to sustain an implied power on the part of the Board to enter into a contract of this nature, it would first be necessary to establish the premise that some statute has conferred upon the Board expressly the power, duty or obligation to furnish water to persons, firms or corporations, including municipal corporations, not under the jurisdiction of the Board, and not within the statutory scope of its legal activities. Having searched the statutes referred to above, I fail to find therein that the General Assembly has ever expressly conferred upon the State Board of Public Welfare, or any of its predecessors, any power, duty or obligation, the accomplishment of which such a contract as that contemplated would be necessary and proper to fulfill. I am of the positive opinion that such a contract would be illegal. Aside from what is said above, and taking cognizance of the fact that the water to be furnished under the contract is made available by virtue of the expenditure of appropriations, raised by taxation of the people of this State, I do not think the contract would square with the terms of the fundamental law of this State, our Constitution. In this view I am fortified by the language of Article 7, Section 1, Paragraph 1, of the Constitution, which categorically sets out those purposes for which the power of taxation over the whole State shall be exercised by the General Assembly. Without recounting in detail these purposes, suffice it to say that they do not include the furnishing of water to persons or institutions other than "public institutions" of a kind contemplated by the Constitution, and a municipal corporation would not be so considered. SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Contract with Robert & Co. legal. February 21, 1939 Hon. Roy V. Harris, Speaker House of Representatives General Assembly of Georgia Pursuant to H. R. No. 126, adopted February 14, 1939, providing that the Law Department of the State be requested to investigate all facts concerning a certain contract entered into between the State Department of Public Welfare of the State of Georgia, and Robert and Company, Incorporated, archi- 650 tects and engineers of Atlanta, Georgia, dated June 14, 1938, and further providing that the Law Department set aside the said contract as illegal if such action can be taken, I have the honor to advise as follows: The contract referred to, on its face, obligates the State Department of Public Welfare of the State of Georgia to pay Robert and Company, Incorporated, for architectural and engineering services to be rendered under the terms of the contract in the repair and building program of eleemosynary institutions under the control of the State Department of Public Welfare, a fee of six (6%) per cent of the cost of the completed program of approximately Five Million ($5, 000,000. 00) Dollars, to be computed on the actual cost where such figures are available through contract, or otherwise; but where these actual figures are not available, then the estimated cost of construction. Cost is defined to mean the entire expenditure on the program with the exception of fees paid to the architects and engineers, legal services, cost of land or rightsof-way, and traveling expense that may be incurred during the execution of the program. There is no provision in the contract relative to the payment of a one (1%) per cent fee for "promotional work in procuring money from Washington". The contract appears to be properly and legally executed as to signature of both parties, under their hands and seals, departmental and corporate seals, and other formalities. It is authorized by due and sufficient resolution of the State Board of Public Welfare of the State of Georgia. The said original contract bears the signed approval of .the Governor in due and legal form; and it also bears a statement by the Attorney General of Georgia as follows: "The above contract has been carefully reviewed by the Law Department of the State of Georgia and the legality of the same is hereby approved." A copy of the said contract, dated June 14, 1938, with the entries thereon, is hereto attached. The contract has been partially performed. Both parties have been acting thereunder since June 14, 1938. Services have been performed by Robert and Company, Incorporated, under the contract, and other and further services are yet to be rendered by the architects and engineers. The State Department of Public Welfare of the State of Georgia has received and accepted services from Robert and Company, Incorporated, under the contract. The program of construction, in which the architectural servIces of the said Company form a part, is in process of completion, but said construction has not yet been completed. A contract can only be declared void or voidable on some ground known to the law. Among the grounds upon which a contract may be declared void are: incapacity of the parties to contract; fraud; and impossible, immoral, and illegal conditions. A valid contract exists where the parties are able to contract, a consideration moves to the contract, the parties assent to the terms of the contract, and a subject matter is provided upon which it can operate. Upon a careful review of the contract, the subject matter thereof, the execution, the authority of the parties to contract, and the facts surrounding the same, I am of the opinion that the said contract is valid, binding, and enforceable, as to both parties thereto, and that no legal action on the part of the State of Georgia or any of its agencies, could be successfully instituted, prosecuted or maintained to set aside the same upon any ground. 651 SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Cannot delegate to other Boards power to perform official acts. February 14, 1940 Honorable E. D. Rivers Governor I have your letter of February 7th in which you ask the following questions: 1. "Has the State Department of Public Welfare the authority to trans- fer to the State Department of Education all powers, functions and duties of the Academy for the Blind; School for the Deaf; Georgia Training School for Boys and the Georgia Training School for Girls?" 2. "If the transfer of these institutions to the State Board of Education can be legally effected, would the State Board of Education have the authority to administer the affairs of the respective institutions through a Committee, Board of Managers or Board of Trustees to be named by the State Board of Education, and to be composed of non-members of the State Board of Education?" 3. "In the event the State Board of Education does not have the authority to appoint administrators to manage the aforesaid institutions, would the Board of Education have authority to select or appoint an advisory board to cooperate with the State Board of Education and the Superintendents of these aforesaid institutions in the formulation of policies and the management of said institutions?" You state that you are interested in transferring the Georgia Training School for Boys, and perhaps other institutions now functioning under the State Department of Public Welfare, to the State Department of Education in order that benefits given to these institutions now under the control of the State Department of Public Welfare may be increased to an appreciable degree. 1. In answer to your first question, I am inclosing a copy of the opinion which I rendered to you on May 19, 1939, holding that the State Department of Public Welfare may, with the approval of the Governor and with the consent of the State Board of Education, transfer to the State Board of Education in whole or in part its functions, powers, and duties relating to the four institutions under consideration. In the opinion of May 19, 1939, I also pointed out that under Section 31 (page 72) of the General Appropriations Act of 1937 State funds to match Federal funds appropriated for vocational education can be obtained by the proper transfer to the State Department of Education of part of the appropriations made to the State Department of Public Welfare for the support and maintenance and operating cost of these institutions. 2. Would the State Board of Education have the authority to administer the affairs of the institutions in question through a Committee, Board of Managers or Board of Trustees to be composed of non-members of the State Board of Education? Under Section 3 of the Act creating the State Board of Education (Georgia Laws 1937, pages 864, 866) the Board is charged with the general supervision of the State Department of Education; and under Section 4 (page 867) of said Act the Board is authorized and empowered to accept and use funds appropriated by the General Assembly or by Congress for vocational or other educational purposes. There is no express statutory authority authorizing the State Board of Education to delegate to others any of its aforesaid powers and duties; and none of the Acts relating to the State Department of Education or to the State 652 Board of Education make any reference, of course, to any of the four institutions in question, because the General Assembly placed said institutions under the control and management of the State Department of Public Welfare (subject, as we have seen, to the right of the Department of Public Welfare to transfer them to any other State agency or department) . Bearing in mind the aforesaid statutory provisions, and the aforesaid lack of statutory provisions, let us now determine whether or not the State Board of Education would have the authority to delegate to others the general administration of the affairs of the four institutions in question. It is a well established rule of law that, in the absence of express statutory authority, an official board can not delegate to others any of its official duties which involve discretion and judgment. Mobley v. Marlin, 166 Ga. 820, 830; McCaskill v. Chattahoochee Fertilizer Company, 167 Ga. 802, 810; State v. Poplarville Sawmill Company, 81 So. 124, 119 Miss. 432 (5) ; Mechem on Public Officers, Section 567. That the general administration of the affairs of the four institutions in question involves the exercise of discretion and judgment, goes without saying. It follows, therefore, that in the event such institutions should be transferred to the control and management of the State Board of Education, the Board could not delegate to others its own general duties of control, supervision, management, and administration. It would thus appear that the State Board of Education could not administer the affairs of these institutions through a Committee, Board of Managers or Board. of Trustees composed of non-members of the State Board of Education, since to do so would constitute a delegation to others of official duties involving the exercise of discretion and judgment. In this connection, it is interesting to note that while the State Board of Education would have no authority to delegate to others the general administration of the affairs of the institutions in question, it could, however, delegate to others the performance of mere ministerial acts made necessary as a result of the Board's exercise of its own judgment and discretion. Skrainka Construction Company v. Reber, 126 S. W. 397, 399, 226 Mo. 229; Inhabitants of Town of West Springfield v. Mayo, 166 N. E. 653, 265 Mass. 41. This is true because "it can ordinarily make no difference to anyone by whom the mere physical act is performed when its performance has been guided by the judgment or discretion" of the Board. Mechem on Public Officers, Section 568. ("Where, however, the law expressly requires the act to be performed by the officer in person, it can not, though ministerial, be delegated to another. " Mechem on Public Officers, Section 568. ) (Emphasis supplied. ) 3. Would the State Board of Education have the authority to select or appoint an advisory board to cooperate with it in the formulation of policies and in the management of said institutions? While the State Board itself must administer the affairs of the institutions in question, there would seem to be no legal objection to the selection or appointment by it of an advisory group to cooperate in the formulation of policies and to assist in the management of said institutions. Such an advisory group would, however, have no legal powers, no official status, and would have to render its services gratuitously, since the formulation of policies and the management of said institutions would devolve upon the State Board of Education exclusively. 653 SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-No express provision of law for publishing list of pensioners. May 6, 1939 Hon. Arthur Lucas, Chairman State Board of Public Welfare Your letter of May 2, 1939, inquiring as to the responsibility of the State Board or its Chairman to furnish information as to those who were cut off of the pension rolls, is acknowledged. Section 19 (a) of the Public Assistance to Aged Act (Georgia Laws 1937, pp. 311, 321) provides as follows: "The various county welfare boards shall maintain for public information a roll book giving the full name and address of each beneficiary and the name and address and salary paid each employee of said board in said county." A perusal of this Act does not disclose that any other official or board of the State Department of Public Welfare is required under the terms of the Act to give information to the public as to persons on the relief rolls. It is true that certain reports are required by the Act to be made, but these reports are published. The law does not specify what information these reports shall contain. The law does not require the keeping of a list of those cut off of the pension roll. The State Board of Public Welfare may have such a list on hand, but this is a matter of assumption. Even if it has such a list on hand, the law does not require that the Board make this list public and does not give to anyone the right to inspect this list as a matter of course. However, there is nothing in the law that would prevent the Board from giving out such information in connection with its work as it may in its discretion see fit to give out. What information is given out and to whom the same is given is a matter vested in the sound discretion of the Board. SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Board fixes standards; Director appoints under terms and conditions prescribed by the Board. February 20, 1939 Committee on Economy and Efficiency I have your letter of February 16, 1939, asking the following question: "Does the present law creating the Department of Public Welfare, State of Georgia, and creating the Board of Public Welfare, approved the 26th day of February, 1937, confer the authority upon the Board of Public Welfare to fix minimum standards of service and personnel, and to formulate salary schedules for the classified service based upon training, experience, and general ability of persons selected for positions in the State Department and county departments of Public Welfare?" In answering the question propounded, your attention is directed to the following sections of the Welfare Reorganization Act of 1937 (Georgia Laws 1937, pp. 355-370) : "Section 4. Duties of the State Board. It shall be the duty of the State Board to serve as an advisory and policy forming Board advising with the director regarding the adoption of all policies, rules, and regulations for the State Department. The State Board in consultation with the director shall have the power and it shall be their duty to fix minimum standard~ of service and personnel, and to formulate salary schedules for the classified 654 service based upon training, experience, and general ability of persons selected for positions in the State Department and County Departments of Public Welfare hereinafter created. " (Georgia Laws 1937, at page 358.) "Section 7. Department Organization. There shall be created in the department such divisions as the State Department may find necessary for the effective administration of the State Department. The director shall have the power to allocate and reallocate functions among the divisions within the Department with the advice of the State Board." (Georgia Laws 1937, at page 363.) "Section 5. Duties of the Director. . . . The director shall serve as the executive and administrative officer of the State Department . . . The Director shall appoint such personnel as may be necessary for the efficient performance of the duties prescribed in this Act." (Georgia Laws 1937, at page 359.) Viewing the above sections of the Act together, it is my opinion that it is the Board's duty, as distinguished from the duty of the director, to fix the minimum standards of service and personnel, and to formulate salary schedules. After the Board has fixed the standards of service and personnel and formulated the salary schedules, it is then the duty of the Director to appoint or employ such personnel as in his opinion may be necessary for the efficient performance of the duties required, in accordance with the standards of service and personnel and salary schedules fixed by the Board. In short, the Board fixes the minimum standards of service and personnel and sets up the salary schedules, which it is the duty of the Director to follow in making appointments of the personnel. Under date of June 11, 1938, Hon. M. J. Yeomans, Attorney General, addressed the following letter to Mr. Lamar Murdaugh, Director, State Department of Public Welfare: "Replying to your inquiry of recent date as to the appointment of officers for the various divisions of the State Department of Public Welfare, I beg to advise briefly that after a review of the Act I am of the opinion that appointments should be made by the Director of the State Department of Public Welfare under such terms and conditions as may be prescribed by the Board of Public Welfare. "The Board of Public Welfare under the Act has general supervision. The Director is the executive officer of the Board and, of course, acts in accordance with the rules and regulations formulated by the Board under the powers conferred in the Act." (Emphasis supplied.) The above quoted letter from Judge Yeomans to Mr. Murdaugh under date of June 11, 1938, gives a concise and correct statement of the applicable law. SOCIAL WELFARE; STATE DEPARTMENT OF PUBLIC WELFARE-Sterilization law applicable only to persons who are patients at State institutions. December 28, 1939 Dr. John W. Oden Chairman State Board of Eugenics Milledgeville State Hospital Milledgeville, Georgia I am pleased to acknowledge yours of the 26th instant stating that you have received a letter from the Director of the Towns County Department of Public 655 Welfare at Hiawassee requesting that permission be given for a sterilization operation to be performed on a young woman in said community. You request my opinion as to whether, under the Sterilization Act approved February 27; 1937 (Georgia Laws 1937, page 414) , patients or persons who a"re not inmates or patients of a State institution may be sterilized according to its provisions. Section 3 of the Act above referred to provides: "When it shall appear to the superintendent, manager, or director, of any State home or hospital for mental or physical disease, or any State colony or institution for the care of the mentall,Y or physically defective, deficient, or diseased, or the warden or superintendent of any State prison or penitentiary, correction school or reformatory, detention home, or camp, that a patient or inmate under the care of, or in such institution, would be likely, if released without sterilization, to procreate a child, or children, who would have a tendency to serious physical, mental, or nervous disease or deficiency, said superintendent or manager, after a consultation with his medical staff or any medical authority, shall submit to the State Board of Eugenics a recommendation that a surgical operation be performed upon said person for the prevention of parenthood. Such operation shall be a vasectomy for males, and a salpingectomy for females, or some similar operation that would not unsex the patient or inmate thereof. " I am of the opinion that this section, properly construed, means that only those persons who are inmates or patients "under the care of, or in" a State institution, State home, State hospital or State colony "for the care of the mentally or physically defective, deficient or diseased, or who are inmates or patients of some State prison or State penitentiary, or State correction school or reformatory, or State detention home, or State camp" may be sterilized according to the procedure outlined in said Act. The Act may not be applied to any person who is not an inmate or patient of any of the institutions enumerated above. SOCIAL WELFARE; COUNTY DEPARTMENTS OF PUBLIC WELFARE-Three mill levy by counties under Ga. Laws 1937-1938 Ex. Sess. p. 293 cannot be used for support of paupers who are not qualified under Welfare Acts. March 13, 1939 Hon. Braswell Dean Director State Department of Public Welfare This will acknowledge the request submitted through Hon. George C. Kennedy, your Administrative Assistant, for an opinion as to whether or not a county is authorized to spend, for "general relief", any portion of the three mill levy provided by the Act approved December 24, 1938 (Georgia Laws, Extra Session 1937-1938, p. 293). More specifically, you desire to know whether any part of the three mill levy could be used by a county for the support of paupers, it appearing that the Legislature has specifically authorized by the Act of 1937 (Georgia Laws 1937, p. 446) the levy of a tax of 11 mills for the support of paupers. I have read the copy of the opinion of Hon. B. H. Chappell, County Attorney of Muscogee County, under date of July 21, 1938, dealing with this question, and I find myself in agreement with the conclusions reached by him. It is obvious from even a casual reading of the Act of December 24, 1938, authorizing 656 the three mill levy by counties, that the funds derived from such a levy may be spent only for (1) "old age assistance to aged persons in need"; (2) "for the payment of assistance to the needy blind"; (3) "to dependent children"; and (4) "other welfare benefits"; that no expenditures for any of these four purposes shall be made to any person who does not qualify for such assistance in every respect "in accordance with the enactments of the General Assembly which may be in force and effect prescribing the qualifications for beneficiaries" thereunder. The "qualifications for beneficiaries" under the Old Age Assistance Act are stated in Section 2 (Georgia Laws 1937, p. 312) ; the qualifications for beneficiaries under the Aid to the Blind Act are stated in Section 3 (Georgia Laws 1937, p. 570) ; and the qualifications for beneficiaries under the Aid to Dependent Children Act are stated in Sections 1 and 2 (Georgia Laws 1937, pp. 631-632) . In each of these Acts, the amount of assistance which any person qualifying for same shall receive is determined by the county departments of public welfare "in accordance with the rules and regulations made by the State Department". There is no provision in either of these statutes, or in any other statute of this State of which we are cognizant, which prescribes the qualifications for beneficiaries seeking "other welfare benefits". Neither is there any provision with reference to the amount of assistance which might be granted to a person (could his qualifications to receive the same be established legally) applying for "other welfare benefits". This being true, I am forced to the conclusion that the phrase, "other welfare benefits", is, more or less, without meaning at the present time, in that there is not sufficient statutory provision made for the administration of such benefits. This conclusion is fortified by the language of the Constitutional amendment authorizing counties to levy taxes for the purpose of providing old age assistance, assistance to the needy blind, and to dependent children, and other welfare benefits, which specifically provides that "no person shall be entitled to the assistance herein authorized who does not qualify for such assistance in every respect in accordance with enactments of the General Assembly which may be in force and effect prescribing the qualifications for beneficiaries hereunder". That the General Assembly did not intend that any part of the three mill levy could be used for the support of paupers can be implied, not only from the fact that no legislation was enacted prescribing the qualifications of beneficiaries of such assistance, but also from the fact that provision had already been made at the regular session of the General Assembly for a It mill levy "for the support of the paupers of the county", (Georgia Laws 1937, p. 446), and at the time this levy was authorized (in fact, for many years previous thereto), the machinery for the distribution of tax funds for the support of paupers had been established, and the jurisdiction over such matters vested in the Commissioner of the Poor or the Ordinary of each county. Code Section 23-2203 provides how paupers may make application for assistance on account of pauperism, provides for a hearing on the application, and when such applicant is adjudged to be a pauper by the Commissioner of the Poor or the Ordinary, the person to whom the application is made is authorized to provide assistance for such person out of the county levy for the support of paupers. Code Section 23-2301 provides that no person shall be entitled to the benefits of the provision for the poor who is able to maintain himself by labor or who has sufficient means. I am of the opinion that no person is entitled to any assistance from the pauper funds of the county derived from the levy of the 657 1i mills who has not been adjudged a pauper by the Ordinary or the Commissioner of the Poor. Over these funds, -that is, the 1i mill county levy for the support of paupers, -neither the State Department of Public Welfare nor the county departments have any supervision or control, except that the county departments, under Section 13 of the Welfare Reorganization Act of 1937 (Georgia Laws 1937, pp. 355-365) , are charged with the duty to "investigate and pass upon all applications for admission to and discharge from county institutions which provide care and treatment for indigents". On the other hand, all public assistance authorized under the three mill levy is required to be administered by the county departments of public welfare "subject to the rules and regulations of the State Department". See Section 13 of the Welfare Reorganization Act (Georgia Laws 1937, p. 365) ; Sections 3 and 4 of the Old Age Assistance Act (Georgia Laws 1937, p. 313) ; Sections 1, 4 and 5 of the Aid to the Blind Act (Georgia Laws 1937, pp. 569-571) ; Sections 2, 3 and 4 of the Aid to Dependent Children Act (Georgia Laws 1937, pp. 632-633). It is also significant that the caption of the Act to amend the Code Section with reference to county levies so as to provide for a three mill tax for old age assistance, etc., specifically limits the use of these funds to welfare benefits "to be administered by the State Department of Public Welfare". From the above considerations, as well as others which could be enumerated, I am of the very definite opinion that funds derived from the three mill levy cannot be used by the county government for any welfare work or the support of any person in need, save and except for those persons who qualify for such assistance in every respect in accordance with the statutes prescribing the qualifications for those benefits. This necessarily excludes the application of any of the funds derived under the three mill levy to the purpose of supporting paupers of the county who have not qualified for assistance either under the Old Age Assistance Act, the Aid to the Needy Blind Act, or the Aid to Dependent Children Act. SOCIAL WELFARE; COUNTY DEPARTMENTS OF PUBLIC WELFARE-Notaries Public Ex Officio Justices of the Peace eligible; Members of County Boards of Education ineligible as members of County Welfare Boards. August 27, 1940 Honorable Homer A. Legg Ordinary, Lincoln County Lincolnton, Georgia I am pleased to acknowledge yours of the 24th instant requesting my opinion as to whether or not members of the county board of education or notaries public ex officio justices of the peace can serve on the county welfare board. While I am not authorized to render you an official opinion upon the subject, and for this reason what is said herein is purely unofficial, I am glad to give you my own personal views with reference to the question propounded. As you know, the proviso of Section 10 of the Welfare Reorganization Act of 1937 (Georgia Laws 1937, pages 355, 364) relating to the appointment of members of the county board of public welfare provides "that no elected officer of the State or any subdivision shall be eligible for such appointment. " While there may be some doubt as to the ineligibility of members of the county board of education to be appointed as a member of the county board of public welfare in view of the fact that members of the county board of education are 658 selected by the grand juries, rather than elected by the people, the provisions of Code Section 89-103 which reads in part: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office," serves without question, to disqualify a person who is a member of the county board of education-and therefore a county officer-from being eligible for appointment as a member of the county board of public welfare, membership on said latter board being also a county office. Therefore, I am of the very definite opinion that a member of the county board of education is ineligible for appointment as a member of the county board of public welfare. With reference to the eligibility of a notary public ex officio justice of the peace, I am of the opinion that such a person is eligible for the following reasons: 1. In the first place, a notary public ex officio justice of the peace is not a county officer, being a state officer. Overton v. Gandy, 170 Ga. 562 (2) ; Long v. The State, 127 Ga. 285, 286. Therefore, a person holding an appointment as a member of the county board of public welfare and as a notary public ex officio justice of the peace would be holding only one county office, and would not offend the provision of Code Section 89-103. 2. In the second place, the proviso of Section 10 of the Welfare Reorganization Act prohibits only the appointment of any "elected officer" of the State or any subdivision as a member of the county welfare board. As suggested in your letter a notary public ex officio justice of the peace-unlike a justice of the peace who is elected by the people-is "appointed" by the judge of the superior court of the circuit, upon recommendation of the grand jury of the county (Code Section 24-501) . Therefore, it necessarily follows that the proviso of Section 10 does not prohibit his appointment as a member of the county board of public welfare, he being an appointed, as distinguished from elected officer. SOCIAL WELFARE; COUNTY DEPARTMENTS OF PUBLIC WELFARE-County Loan Association member is eligible as member of County Welfare Board. August 19, 1940 Mrs. Alex Cromartie, Director Jeff Davis County Welfare Board Hazlehurst, Georgia I am pleased to acknowledge yours of the 15th instant in which you state that Mr. G. L. Hinson, a member of the Jeff Davis County Welfare Board, feels that he is disqualified to serve on said board because he is a member of the Board of the Jeff Davis County Loan Association, which approves or disapproves all applications for loans from the Federal Government to those farmers who apply for these loans, and has, therefore, tendered his resignation. From the facts stated in your letter, I am of the opinion that Mr. Hinson's service as a Member of the Jeff Davis County Loan Association would not disqualify him as a member of the County Welfare Board, for the reason that the former office is not a county office and a person holding such office is not an "elected officer of the State or any subdivision" within the meaning of Section 10 of the Welfare Reorganization Act of 1937. 659 SOCIAL WELFARE; COUNTY DEPARTMENTS OF PUBLIC WELFARE-Local school district trustee is not eligible as member of County Welfare Board. August 21, 1939 Hon. C. E. Brunson County Attorney Houston County Perry, Georgia I am pleased to acknowledge receipt of a copy of your letter to Hon. George C. Kennedy, Assistant Director, State Department of Public Welfare, Atlanta, Georgia, dated August 16, 1939, dealing with the eligibility of a member of the Houston County Board of Public Welfare, in view of the fact that such member is also Secretary-Treasurer of a school district in your county. It seems to me that the question is controlled by the Act of 1937 which provides for County Boards of Public Welfare and specifically defines the persons who shall be eligible for appointment to such BoardsL (Acts of 1937, pages 355370.) Section 10 of the said Act provides in part as follows: "County boards. The County Board of Public Welfare shall consist of five members appointed by the County Commissioner or Board of Commissioners, or the constituted fiscal or financial agent of each respective county, with the approval of the State Department, Provided, that no elected officer of the State or any subdivision shall be eligible for such appointment. " (Emphasis supplied.) It is not open to question that a local school district is a subdivision of the State. 56 C. J., page 193, paragraph 46, provides as follows: "A school district, or a district board of education or of school trustees, or other local school organization, is a subordinate agency, subdivision or instrumentality of the State, performing the duties of the State in the conduct and maintenance of the public schools. " See also the great number of cases cited in the footnote of this section. In Edalgo v. Southern Railway Co., 129 Ga. 258, the Supreme Court of this State refers to school districts as political subdivisions of the State. The court said: "The Act authorizes local taxation for school purposes in three political subdivisions of the state, -counties, school districts created within a given county, and municipalities. " (Page 263. ) In Henslee v. McLarty, 131 Ga. 244, the Act making provision for local taxation for school districts was attacked as unconstitutional for the reason that it established new political divisions other than those recognized and guaranteed by the Constitution of the State, and in no way recognized by previous or existing political divisions of the State that could be clothed with authority under the Constitution to levy a tax for school purposes. The court held this attack on the constitutionality of the Act to be without merit. Since it is clear that a school district is a subdivision of the State, it remains to be determined whether the Secretary-Treasurer of the school district is an elected officer. Section 32-1104 of the Code of 1933 provides for an election for the purpose of electing three trustees for each district in the county. The election is to be held at a time and place and in a manner prescribed by the county board of education. That section further provides in part as follows: 660 "After the local board of trustees has been approved and properly commissioned by the county board of education, it shall meet immediately and organize by electing one of its members president, and one secretary and treasurer. " Thus it will be noted that the secretary and treasurer of the board of trustees of a local school district must be a member of such board and therefore is an elected officer of a subdivision of the State. Of course, I have no interest in this matter at all other than to be helpful to the parties involved and I would appreciate it very much if, after reading the foregoing, you woUld give me your view in connection therewith. SOCIAL WELFARE; COUNTY DEPARTMENTS OF PUBLIC WELFARE-Eligibility of County Welfare Board Members. July 29, 1940 Honorable W. W. Armistead County Attorney, Oglethorpe County Crawford, Georgia I am pleased to acknowledge your request for my unofficial advise as to the eligibility of the following officers to wit: a member of the County Board of Education, a member of a local school district board of trustees, a member of the county board of tax assessors and a member of the county Democratic executive committee to be appointed and hold office as a member of the county board of public welfare in any county. Section 10 of "The Welfare Reorganization Act of 1937" (Ga. L. 1937, page 355) provides in part: "The county board of public welfare shall consist of five members appointed by the county commissioner or board of commissioners, or the constitutioned fiscal or financial agent of each respective county with the approval of the state department, provided that no elected officer of the state or any subdivision shall be eligible for such appointment. " (Emphasis supplied.) While it wil' be observed that this statute uses the word "elected, " I am of the opinion that it is used in a broad sense and woUld include an election by any body such as a grand jury, as well as election by a popUlar vote of the qualified voters of a political subdivision of the state. I feel that it is used in this statute as the antonym of "appointed. " If such is the proper meaning to be applied to this word, then it necessarily follows that a member of the county board of education who is selected or elected by the grand jury of a county is ineligible to hold the office of a member of the county board of public welfare. See Code Section 32-903. Trustees of local school districts are elected by the qualified voters of said districts and there can be no doubt that they are "elected" officers of a political subdivision of this state. See Code Section 32-1104.. As to the eligibility of a member of the county board of tax assessors we need not rely alone upon Section 10 of the Act of 1937 to determine the ineligibility of persons holding membership on said board to be appointed as members of the county board of public welfare, for Code Section 92-6907 provides: "The members of the board during the time they hold their offices and for one year thereafter, shall be ineligible to hold any state, county or municipal office, etc. " (Emphasis supplied.) 661 So while under Code Section 92-6903 members of the county board of tax assessors are "appointed by the board of county commissioners, or by a majority thereof, or by the ordinary in counties which have no board of county commissioners, " whether we consider such officials as "elected" or "appointed" is immaterial. They are disqualified to hold any other county office by virtue of the provisions of Code Section 92-6907. With respect to the eligibility of a member of the county Democratic executive committee, I am of the opinion that such a person is eligible for appointment as a member of the county board of public welfare. This is true for the reason that a person holding such an office is not an "elected officer of the state or any subdivision of the state" but is an officer of a political party, and does not fall within the prohibition of Section 10 of the Act of 1937. But aside from these considerations Code Section 89-103 of the Code 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, etc. " Therefore, even if the Act of 1937 had not prescribed the grounds of ineligibility as quoted above from Section 10 of said act, persons who are holding a county office would be ineligible to hold at the same time the office of a member of the county board of public welfare, for, in my opinion, said last named officer is a county officer. In summary therefore, I am of the opinion that neither a member of the county board of education, nor a member of the county board of tax assessors, nor a member of the board of trustees of a local school district would be eligible for appointment as a member of the county board of public welfare. A member of the county Democratic executive committee would be eligible. Of course, you realize that what is said herein is purely unofficial and binding upon no one. I am glad at all times to be of any assistance I can to my friends over the State, among whom I count you as one of my best, and I sincerely trust that this information will be of help to you. SOCIAL WELFARE; OLD AGE ASSISTANCE-Cooperation between State and federal agencies. November 27, 1939 Honorable E. D. Rivers Governor This will acknowledge receipt of your letter of November 14 in which you call attention to the recent amendments to the provisions of the Federal Social Security Act relating to old age assistance, unemployment compensation, aid to dependent children, and aid to the blind. You also quote from the statements of policy with reference to minimum standards for merit system of personnel administration in State Employment Security and Public Assistance Agencies adopted by the Social Security Board on November 1, 1939, in accordance with the amendments referred to. You inquire as to whether or not there is any provision of law which would prohibit the State Department of Public Welfare from complying with that part of the Social Security Board's standards for personnel administration which is set forth in your letter. "The Welfare Reorganization Act of 1937" (Acts of 1937, page 355-370) provides in Subsection (9) of Section 6 that the State Department shall "Act as the agent of the Federal government in welfare matters of mutual concern in 662 conformity with this act and the administration of any Federal funds granted to the State to aid in the furtherance of any functions of the State Department." The "Old Age Assistance Act" (Acts of 1937, pages 311-321) in dealing with the duties of the State Department of Public Welfare provides in Subsection (e) of Section 4 that the State Department shall "Cooperate with the Federal government in matters of mutual concern pertaining to assistance to the needy aged, including the adoption of such methods of administration as are found by the Federal government to be necessary for the efficient operation of the plan for such assistance".' The "Aid to the Blind Act" (Acts of 1937, pages 568-579), and the "Aid to Dependent Children Act" (Acts of 1937, pages 63G638) contain provisions identical with Subsection (e) of Section 4 of the "Old Age Assistance Act" hereinabove quoted. Thus it is the clearly expressed intention of the General Assembly that the State Department of Public Welfare which is the State agency charged with administering old age assistance, aid to dependent children and aid to the blind shall cooperate with the Federal Government in "the adoption of such methods of administration as are found by the Federal Government to be necessary for the efficient operation of the plan for such assistance." This mandate of the General Assembly should be followed by the State Department of Public Welfare unless there are other provisions of law which conflict with andprohibit it. Section 4 of "The Welfare Reorganization Act of 1937" provides: "Duties of the State Board. It shall be the duty of the State Board to serve as an advisory and policy forming Board advising with the director regarding the adoption of all policies, rules, and regulations for the State Department. The State Board in consultation with the director shall have the power and it shall be their duty to fix minimum standards of service and personnel, and to formulate salary schedules for the classified service based upon training, experience, and general ability of persons selected for positions in the State Department and County Departments of Public Welfare hereinafter created. " Section 5 of the act defining the duties of the director provides in part: " ... The director shall serve as the executive and administrative officer of the State Department. . . . The director shall appoint such personnel as may be necessary for the efficient performance of the duties prescribed in this act. " It is well settled that an official board cannot delegate to others a power that can be exercised only by itself. 46 C. J. 1034, section 297. And an officer to whom a discretion is entrusted cannot delegate the exercise thereof. 46 C. J. 1033, section 291. I do not believe, however, that these rules of law would prohibit the creation of a merit system council, appointed by the Board of Public Welfare or appointed by the Governor on the recommendation of the board, to make preliminary determinations of eligibility and hold competitive examinations for the purpose of setting up registers to certify to the State Department of Public Welfare in accordance with its standards; provided, however, that the State Board, in consultation with the director, fixes the minimum standards of service and personnel and formulates salary schedules for the classified service based upon training, experience, and general ability of persons selected. And provided further that the director appoint from the group so selected such personnel as may be necessary for the efficient per- 663 formance of the duties prescribed in the act. As pointed out by the Supreme .Judicial Court of Massachusetts in the case of Inhabitants of the Town of West Springfield v. Mayo, 163 N. E. 653, the rule that official duties involving the exercise of discretion and judgment for public weal cannot be delegated merely requires the official' to exercise his own judgment and discretion on matters submitted to him for determination, and does not inhibit his use of assistance when the act to be done requires examination of physical objects, nor prohibit him from arriving at conclusions of fact based on the report of his assistants. In United States v. Standard Oil Company of California, 20 Fed. Sup. 427, it was said: "Executive officers may rely on the assistance of others. Even where the duty 'to hear' in the first instance is imposed upon the head of a department, the evidence may be heard by others. And the conclusion will none the less be that of the head of the department, provided he adopts it as his own." See in the same connection Smith v. Hitchcock, 57 L. ed. 119; Peoples U. S. Bank v. Gilson, 140 Fed. 1, 5; Lewis Publishing Company v. Wyman, 152 Fed. 787. It is my opinion, therefore, that there is no legal objection to the Board of Public Welfare cooperating with the Federal Social Security Board in the manner proposed in your letter of November 14. I have not dealt with the Unemployment Compensation Bureau of the State Department of Labor which is charged with the administration of the Unemployment Compensation Law because this is not included in the scope of your question. SOCIAL WELFARE; HOUSING AUTHORITIES-How formed. April 23, 1940 Hon. George B. Hamilton State Treasurer and Chairman, State Housing Authority I am pleased to acknowledge yours of the 23rd instant in which you request me to give you my opinion upon the application of Section 4 of the "Housing Authorities Law" (Georgia Laws 1939, p. 116) , relative to the first and second paragraphs, and with special reference to the question as to what are the duties of a governing body of a city or county and how a petition signed by 25 or more residents of such city or county may affect the formation of a housing authority. That part of Section 4 of the Housing Authorities Law as amended by the Act of 1939 upon which you seek my construction reads: "Section 4-Creation of Housing Authorities. In each city (as herein defined) and in each county of the State there is hereby created a public body corporate and politic to be known as the 'Housing Authority' of the city or county; Provided, however, that such authority shall not transact any business or exercise its powers hereunder until or unless the governing body of the city or the county, as the case may be, by proper resolution shall declare at any time hereafter that there is need for an authority to function in such city or county. The determination as to whether there is such need for an authority to function (a) may be made by the governing body on its own motion or (b) shall be made by the governing body upon 664 the filing of a petition signed by 25 residents of the city or county, as the case may be, asserting that there is need for an authority to function in such city or county and requesting that the governing body so declare. "The governing body shall adopt a resolution declaring that there is need for housing authority in the city or county, as the case may be, if it shall find (a) that insanitary or unsafe inhabited dwelling accommodations exist in such city or county or (b) that there is a shortage of safe or sanitary dwelling accommodations in such city or county available to persons of low income at rentals they can afford. In determining whether dwelling accommodations are unsafe or insanitary said governing body may take into consideration the degree of overcrowding, the percentage of land coverage, the light, air, space and access available to the inhabitants of such dwelling accommodations, the size and arrangement of the rooms, the sanitary facilities, and the extent to which conditions exist in such buildings which endanger life or property by fire or other causes." The first paragraph of this section plainly vests the governing body of any city or county with the jurisdiction and power to determine whether there is a need for a housing authority to function in said city or county. The governing body may or may not act of its own volition in making such a determination, if no petition is filed with it in the manner described in said section. On the other hand, when a petition signed by 25 residents of the city is filed with the governing body of a city or a petition signed by 25 residents of the county is filed with the governing body of the county, it ,then becomes mandatory upon the respective governing body to make a determination of the question as to whether there is a need for a housing authority. If, after the petition referred to in the statute is filed, the governing body with whom it is filed determines that there is need for a housing authority to function in the city or the county, as the case may be, it should adopt a resolution declaring that there is a need for a housing authority, basing said resolution upon a finding that (a) insanitary or unsafe inhabited dwelling accommodations exist in the city or county, as the case may be, or that (b) there is a shortage of safe or sanitary dwelling accommodations in the city or county, as the case may be, available to persons of low income at rentals they can afford. If, on the other hand, the city or county governing body should find that neither of the conditions outlined in (a) or (b) exists, then the governing body considering the matter should adopt a resolution declaring that there is no need for a housing authority to function in the city or the county, as the case may be. In any event, however, when a petition as aforesaid is filed with either governing body, action upon the matter and a determination of the need or lack of need for the functioning of a housing authority in the city or in the county is required. In the event the governing body with whom such a petition was filed failed. within a reasonable time, to take any action or make any determination upon the question of the need for a housing authority to function, a mandamus would lie against the members of said governing body to compel them to perform their duty of making a determination of the matter. Furthermore, I am of the opinion that if the governing body abused its discretion in making the determination, and there was no evidence to support the determination made, -either that there was a need for an authority to function in the city or county, as the case may be, or that there was no need for an authority to function in the city or county, -their determination would be subject to review by the courts either upon an appeal or certiorari from their findings. 665 STATE LIBRARIAN-Law books to counties, how furnished. August 1, 1939 Honorable E. D. Rivers, Governor Re: Law Books to the Counties of Oconee, Emanuel and Hall. You have asked my opinion about supplying law books to the above named counties to replace those destroyed by fire and storm. The Act approved March 24, 1939 (Georgia Laws 1939, pages 91-93) appropriating $750.00 to each of those three counties for such purposes contravenes Article 1, Section 4, Paragraph 1 of the State Constitution (Section 2-401 of the 1933 Code), prohibiting the passage of a special law in any case for which provision has already been made by an existing general law. At the time of the passage and approval of the 1939 Act, supra, a general law relating to the distribution of law books to the several counties was in full force and effect. See Chapter 101-2 of the 1933 Code. Consequently, the 1939 Act, supra, being a spe ciallaw applying only to the three counties named, is void. Distribution of law books to the three counties in question must, therefore, be governed by the provisions of Chapter 101-2 of the 1933 Code. The applicable portions of the Code Chapter in question are quoted in full as follows: "101-205. Distribution of laws, etc., to courts. -The distribution of the laws and journals, reports of the Supreme Court and Court of Appeals decisions, and all other books required to be distributed to the several counties of the State or to be sent to other States, shall be made by the Librarian, under the direction of the Governor, in pursuance of the provisions of the law in respect thereto. He shall mail the reports of the Supreme Court and of the Court of Appeals, as follows: One copy of each to the Justices of the Supreme Court, Judges of the Court of Appeals, and judges of the superior courts, and the ordinaries. The remaining copies he shall keep in the State library for use and for exchange, as is required in this Code. " "101-206. Number of journals to be printed; binding; distribution.There shall be compiled, printed and bound (such binding to be the same as that of the Acts of the General Assembly) not more than 500 copies of the journals of each branch of the General Assembly; and it shall be the duty of the State Librarian to distribute the same as follows: One copy of the journal of each branch of the General Assembly to the ordinary of each county, whose duty it shall be to keep and preserve the same for the use of the public and not permit same to go out of his office, and to which the public shall have free access; and also one copy to each member of the General Assembly. The remainder of the copies shall be retained by the Librarian for exchanging with the various States, and for such other use and disposition as the Governor may authorize and direct. " "101-207. Copies of laws and journals for civil offices of each county.Each county shall be entitled to one copy of the Acts of the General Assembly for each civil officer, both judicial and ministerial, and for each member of the General Assembly. to be distributed by the ordinary. " "101-208. Forwarding journals and laws to ordinaries. -The Librarian, under the supervision of the Governor, shall, as soon as the laws and journals of each session are published, forward by express, prepaid, to the office nearest each ordinary, the number of the laws and journals each county may be entitled to: Provided, when the ordinary of any county shall be put to any actual and necessary expense in getting the books from the 666 express office, he shall give an order on the county treasurer for said sum, and the county treasurer shall pay the same. As soon as the Librarian shall have forwarded said laws and journals, he shall notify each ordinary thereof by mail, and also notify him of the office to which said laws and journals have been sent." "101-215. Librarian to supply county with certain reports. -Whenever the Governor shall have satisfactory evidence that the Supreme Court or Court of Appeals reports, or any of them, have never been furnished by the State to any county, it shall be his duty to cause the Librarian to furnish such county with such volumes as have not been furnished the same." "101-216. Governor to draw warrant. -Whenever the Governor shall decide that any county is entitled to be supplied with any number of Supreme Court or Court of Appeals reports, he shall draw his warrant upon the State Treasurer for the amount required for the same: Provided, that not more than $250 shall be drawn to supply reports to any one county." Law books may be supplied to the counties in question to the extent and in the manner set forth in the foregoing Code Sections. STATE LIBRARIAN-Special Act appropriating sum for purchase of law books for counties greater than sum specified in general statute renders special act unconstitutional. April 20, 1939 Honorable George B. Hamilton State Treasurer This will acknowledge yours of recent date requesting my opinion as to the constitutionality of H. B. 244 approved by the Governor on March 28, 1939, appropriating the sum of $750 for each of the counties of Hall, Emanuel and Oconee for the purpose of purchasing law books destroyed by storms and fire. In the first place, this act is, in its nature, a special law with reference to a subject for which provision has already been made by an existing general law. The general law to which I refer is Chapter 101-2 of the Code, and especially sections 101-205, 101-215 and 101-216. These sections provide in part that it is the duty of the State Librarian to furnish one copy of each volume of the Supreme Court and Court of Appeals decisions to the judges of the Superior Courts, clerks of the Superior Courts and the ordinaries of each county; that whenever the Governor has satisfactory evidence that the Supreme Court or Court of Appeals Reports, or any of them need to be furnished by the State to any county, it should be his duty to cause the librarian to furnish such county with such volumes as have not been furnished the same; and that whenever the Governor shall decide that any county is entitled to be supplied with any number of Supreme Court or Court of Appeals Reports, he shall draw his warrant upon the State Treasurer for the amount required for the same; "provided that not more than $250 shall be drawn to supply reports to any one county". I am of the opinion that so long as this general statute which provides the manner of furnishing Supreme Court and Court of Appeals Reports to the various counties remains in force and effect, any special law upon the same subject is violative of Article 1, Section 4, paragraph! of the Constitution which provides "laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law". 667 Applying this constitutional provision to H. B. 244 we find that said bill is a special law because it specifically names the counties of Hall, Emanuel and Oconee and appropriates funds in the amount of $750 from the general treasury of the State for the purchase of law books for said counties, the amount of the appropriation for each county being in excess of the amount permitted under the general law for the purchase of law books. H. B. 244 thus singles out these three counties from the 156 other counties of the State, and attempts to bestow upon said counties a preference as to the number of law books which shall be furnished said counties over and above the number of law books provided for in the general law above cited and quoted from. The bill is, therefore, violative of the Constitution of this State. STATE LIBRARIAN-Special Act for furnishing law books to counties conflicting with general statute renders special act unconstitutional. August 8, 1939 Honorable Joseph H. Blackshear Gainesville, Georgia Re: Law Books to the Counties of Oconee, Emanuel and Hall. I have your letter of August 4, in which you so ably and clearly present the contention that the Act approved March 24, 1939 (Georgia Laws 1939, pages 9193) , appropriating $750. 00 to each of the three above named counties for the purchase of law books, is valid as a special law providing for an emergency not covered by the general law. Your position is that there is no general law providing for the replacement of law books which have been destroyed by storm or fire,. and that, therefore, the 1939 Act does not violate Article 1, Section 4, Paragraph 1 of the State Constitution (Section 2-401 of the 1933 Code) , prohibiting the passage of a special law in any case for which provision has already been made by an existing general law. Because of the exceptionally splendid argument advanced in your letter, I have reexamined my own position, with attention directed specifically to the question of what constitutes a "general law". One of the clearest definitions of a "general law" is that given by the Supreme Court in the case of Mattox v. Knox, 96 Ga. 403 (1) . In the Mattox case a petition was brought by certain citizens of Chattooga County to restrain the Ordinary of that county from proceeding under the special road law for that county enacted in 1889. 1889 Acts, page 1228. One of the questions was whether the special law was void because at the time of its passage there was a general law applicable to the subject-matter and operative in every county in the State. In defining the term "general law", the Court said (headnote 1, page 403) : "1. A general law, within the meaning of that clause of the constitution which declares that 'laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law', is a law which by its provisions purports to operate throughout the State, and, with reference to the particular subject or class of subjects with which it deals, to prescribe a uniform rule applicable alike to all of them." Again, in the case of Crovatt v. Mason, 101 Ga. 246 at 251, the Court defines a "general law" as being one which operates uniformly throughout the whole State upon the subject with which it purports to deal. See, also, Lorentz and 668 Rittler v. Alexander, 87 Ga. 444; Sasser v. Martin, 101 Ga. 447; Thomas v. Austin, 103 Ga. 701. Now, applying the above definition of a "general law" to Section 101-216 of the 1933 Code (brushing aside for the moment Sections 101-205, 101-206, 101-207, 101-208, and 101-215), at the time of the passage and approval of the 1939 Act, supra, was there a general law to provide for the replacement of law books destroyed by storm or fire? If so, the 1939 Act is void as being violative of the constitutional provision in question. Gibson v. Hood, 185 Ga. 426. If not, the 1939 Act is valid. Section 101-216 of the 1933 Code provides as follows: "101-216 (204) Governor to draw warrant. -Whenever the Governor shall decide that any county is entitled to be supplied with any number of Supreme Court or Court of Appeals reports, he shall draw his warrant upon the State Treasurer for the amount required for the same: Provided, that not more than $250 shall be drawn to supply reports to any one county. (Acts 1882-3, p. 24. ) " The purpose of Code Section 101-216, as I interpret it, is to provide an additional source for Court reports by permitting the Governor to supply any county in the State with such reports "whenever", for any reason, he thinks the county ought to have them, but he is expressly limited to the sum of $250.00 for each county. (It is indeed unfortunate that the General Assembly has never, by a general law, increased this amount to a reasonably sufficient sum) . Section 101-216, together with the other Code Sections referred to, certainly operate throughout the whole State on the subject with which they purport to deal. In addition, I think they fully cover and completely embrace "the subject" of providing each and every county of the State with law books. They specify how and to what extent such books may be supplied to the counties in the first instance, then go further and provide that "whenever" the Governor thinks a county is entitled to Court Reports he may supply them to the extent of $250. 00 worth. The word "whenever" is, I think, quite broad and authorizes the replacement of reports destroyed by fire or storm, or otherwise lost, to the extent of $250. 00 worth. The Act of 1939, supra, appropriating $750. 00 to each of the three counties in question, runs counter to Section 101216, which limits the amount to $250.00. The Code Sections referred to are, I think, "general laws" on the subject of providing law books to the several counties. The Act of 1939, supra, therefore, violates the aforesaid constitutional provision and is void. Moore v. Howard, 181 Ga. 605 at 608 (2) ; Gibson v. Hood, 185 Ga. 426. Law books may be supplied to the counties in question only to the extent and in the manner specified by the above cited Code Sections. STATE LIBRARIAN-Contract and statutes require matrices of each volume of Georgia Reports and Georgia Appeals Reports to stored. April 25, 1939 Committee on Economy and Efficiency This will acknowledge receipt of your letter of April 20th, in which you inquire as to the existing contract between the State and The Harrison Company with reference to the publication of the Court of Appeals and Supreme Court Reports and as to whether there is any reason why you should not suggest to 669 the Governor or to the General Assembly the sale of the metal plates for these reports which are in the storage room of the State Library. Section 90-220 of the Code of 1933, which was codified from the Acts of 1920, page 239, provides as follows: "As said reports are printed, matrices of the type p~ges shall be made according to specifications to be furnished by the Reporter and to be stated in the contract, and as each volume is printed these matrices shall be carefully packed and boxed and delivered to the State Librarian or to such other custodian as shall be designated by the Governor, free of cost to the State; and these shall be carefully preserved for future printing if necessary. In the discretion of the Reporter, with the approval of the Governor, the publisher may be required to furnish stereotyped plates, instead of the matrices, at the actual cost of having the same made from the matrices or type pages. The publisher shall also carefully preserve an additional set of the matrices of each volume he publishes, and shall, upon his contract expiring, deliver them to his successor in office, the title to the same to be in the State at all times. 11 The contract between the State and the Harrison Company which was approved on the 14th day of March, 1938, by His Excellency, Honorable E. D. Rivers, contains the following provision: "Before any printing or press work (otherwise than to make the required proofs) shall be done or made from the type-faces, the Publisher shall cause to be made for each and every page a papier-mache matrix and a stereotype-plate of the best quality, retaining possession of said matrices and delivering said plates to the Librarian of the State, according to the law first herein cited. 11 All of the contracts entered into for the publication of Court of Appeals and Supreme Court Reports subsequent to the Act of 1920 required stereotype-plates to be delivered to the State Librarian. Prior to the Act of 1920, Paragraph 186 of the Code of 1910, which was codified from the Acts of 1880-1, page 141, provided as follows: "When the first edition of each volume is printed, the printer shall carefUlly box up the plates and turn them over to the State Librarian, who shall preserve them for further use." Section 18 of the Acts of 1920, page 237, provided as follows: "So much of the law now contained in the Code of 1910, tenth title, Chapter 6, as is not necessaril~ superseded by the terms of this Act, is hereby retained in full force. 11 It is my opinion, therefore, that Section 186 of the Code of 1910 was not superseded by the Act of 1920 in so far as it provides for the boxing up, delivering to the State Librarian, and preserving for further use the plates of those reports published prior to the Act of 1920 hereinabove cited. Section 90-222 of the Code of 1933, which was codified from the Act of 1920 hereinabove cited provides as follows: "Except when the State shall have on hand for the purpose of sale twenty-five or more copies of any volume of the Reports of which the State may have matrices, or electrotyped or stereotyped plates, whether such matrices or plates were obtained by the State under the provisions of this or a prior law or otherwise, the publisher shall have the right at any time to call on the State Librarian or other custodian for the matrices or plates for such volumes for the purpose of printing therefrom additional copies, and also it shall be the duty of the publisher, upon demand being made upon him 670 by the Reporter, with the approval of the Governor, to make such reprints as may in the judgment of the Reporter, with the approval of the Governor, be necessary to meet the needs of the State or of the citizens of the State and to keep such volume or volumes on hand for sale to the State and to the citizens of the State. The terms on which the publisher shall have the use of such matrices and plates and the prices at which the reprints shall be sold to the State and to the citizens of the State shall be stated in the publisher's contract . . . " The contract provision with reference to the reprinting of previous volumes of either series of the Georgia Reports is as follows: "The Publisher hereby undertakes to reprint, from the plates of any previous volume of either series, supplied by the State Librarian, such number of copies as may be required by that officer, and for supply of demand by the public, according to the terms of the existing law on that subject." It is my opinion, therefore, that the publisher under his contract with the State is not required to reprint previous volumes of either series except from the plates of such volumes supplied by the State Librarian for that purpose. Nor do I believe that any officer of this State would be authorized to sell such plates without violating the provisions of the law hereinabove cited. I do not believe that the question of the advisability of suggesting to the General Assembly an amendment to the existing law on the subject is within the province of the Attorney General or the Law Department. WAREHOUSEMEN-Terms of warehouse receipt. August 31, 1939 Honorable M. C. Farmer Coweta Warehouse and Gin Company Newnan, Georgia Because of the unprecedented amount of work in this office, I have been unable to send you a sample copy of a cotton warehouse receipt which will comply with the "Uniform Warehouse Receipts Law" of Georgia, under the Act approved February 16, 1939 (Georgia Laws Extra Session 1937-1938, pages .39G-413). . Section 4 (pages 392, 393) of the Act in question sets forth, generally, the essential terms which must appear on each warehouse receipt. Those terms, in brief, are as follows: (a) The location of the warehouse where the goods are stored, (b) The date of issue of the receipt, (c) The consecutive number of the receipt, (d) A statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order, (e) The rate of storage charges, (f) A description of the goods or of the packages containing them, (g) The signature of the warehousemen, which may be made by his author- ized agent, (h) If the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership, and (i) A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such ad- 671 vances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a state- ment of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient. (j) The amount and rate of insurance on the goods, provided that if there is no insurance thereon by reason of an agreement with the depositor, the receipt shal~ be so stamped. Section 5 of the aforesaid Act provides that a warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not: (a) Be contrary to the provisions of said Act. (b) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own. There are other very important provisions contained in the Act in question, with which you may become familiar by referring to Georgia Laws Extra Ses- sion 1937-1938, pages 39G-413. I would be glad to send you a copy of the Uniform Warehouse Receipts Law of Georgia, but I do not have one available for that purpose. I am attaching hereto a suggested form of a cotton warehouse receipt which, I think, fully complies with the law of Georgia. In the column on the form receipt hereto attached at the place where a memorandum of liens is to be made, I would suggest that you leave such col- umn blank just as shown in the form receipt, as all warehouse charges are not the same, and the same warehouse often changes its charges; so you can have a little rubber stamp to stamp in this space a memorandum of such charges as may be liens against the cotton, such as storage per month, rate of insur- ance per month, ginning, grading, shipping, any anything else for which the warehouse might claim liens. Whenever any of these charges are changed, you should simply change your rubber stamp without disfiguring or discarding your receipts. A suggested form of wording for the rubber stamp is as follows: Storage per month, or fractional part thereof, ________________ ~; Insurance per month, or fractional part thereof, ______________ r_ Shipping and turning out _______________________________________ \! Ginning and wrapping $ ______________ . WEIGHTS AND MEASURES-Jurisdiction of Ordinaries. September 27, 1939 Hon. J. M. Garrett Cadwell, Georgia This will acknowledge yours of the 25th instant reporting the use of scales by M. H. Sikes and Clarence Gay which are marked "Illegal for use in trade" and which do not register the proper weights. Under the law, the Ordinary has jurisdiction over matters about which you write. Under Section 112-104 of the Code of Georgia "Any citizen may com. plain to the ordinary of the deficiency of any weights and measures, whether marked or not, and upon such complaint it shall be the duty of said ordinary to notify the person complained of, and give him the name of the complainant, and specify a day, not more than 10 days distant, when he shall submit his 672 weights and measures to the test of the ordinary; and if the complaint is found to be true within the seller's knowledge, he shall be deemed a person selling by false weights and measures, and shall be presented by the grand jury as such, if no person shall appear and prosecute. " The punishment for using false weights and measures is prescribed by Section 112-9901 as follows: "If any person shall knowingly buy or sell by false weights or measures, he shall be deemed a common cheat, and shall be punished as for a misdemeanor. " WILLS; DESCENT; ADMINISTRATION OF ESTATES-Year's support superior to lien for previously accrued taxes. June 7, 1939 Hon. Leon Phillips Tax Commissioner Treutlen County Soperton, Georgia I am in receipt of your letter of June 2nd requesting information as to whether or not a year's support for a widow and minor children is superior to a lien for taxes on property. Under Section 113-1508 of the Code of Georgia we find that under the priority of debts listed against the estate of a decedent the year's support for the family comes first. In the case of Olmstead, et al., v. Clark, 181 Ga. 478, Justice Bell, speaking for the Supreme Court, said: "The claim of a widow to property set apart to her as a year's support is superior to a lien for previously accrued taxes. " You will note that the above decision applies only to taxes that have accrued prior to the setting aside of the year's support. From the facts stated in your letter I am of the opinion that the estate would not be liable for taxes that accrued in the year 1937, as these taxes accrued prior to the date on which the year's support was set aside. However, I am of the opinion that the taxes for 1938 should be paid, as these taxes accrued subsequent to the setting aside of the year's support. Under the law I am not permitted to render official opinions to anyone other than the Governor and heads of State Departments, but I am always glad to render any service or give any information that I can to the Tax Commissioners and Tax Collectors of Georgia. Please feel free to call upon me at any time I can be of service to you. WORKMEN'S COMPENSATION-Act applies to employers having 10 or more employees, but does not apply to those having less than 10 employees (except municipalities) unless employer voluntarily elects. May 20, 1939 Industrial Board This will acknowledge receipt of your letter of May 18 in which you inquire if the present workmen's compensation Act of Georgia applies to any person, firm or private corporation, including any public service corporation, that has regularly in service five or more employees in the same business within this State, unless such employers or employees voluntarily elect to reject such act. 673 You further call my attention to Section 114-107 of the Georgia Code Annotated, 1937, accumulative pocket part. The pertinent part of Code Section 114-107 as it appeared prior to 1937 was as follows: "This title shall not apply ... to any person, fimi or.private corporation, including any public service corporation, that has regularly in service less than 10 employees in the same business within this State, unless such employees and their employers voluntarily elect to be bound. " By an Act approved March 30, 1937 (Acts of 1937, pages 528, 536) the Workmen's Compensation Law of this State was amended in several respects. This Act also amended Section 114-107 of the Code of 1933 and as that part of the Act amending Code Section 114-107 appears in the volume published by the public printer, the caption of the act reads: "An Act to amend Section 114-107 of the Code of Georgia of 1933, by striking therefrom the figure '10' in the 13th line thereof and substituting in lieu thereof the figure '10'; . . . " The enacting clause is as follows: "Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same, that from and after the passage and approval of this act, Section 114-107 of the Code of Georgia of 1933 be amended by striking therefrom the figure '10' in the 13th line thereof and substituting in lieu thereof the figure '10', so that the section as amended shall read as follows:" However, in reciting how the section as amended should read the word five was used in the said section in place of the figure 10 so that as it appears in the volume published by the printer the section as amended reads: "Section 114-107. Employers and employees to whom law inapplicable; intrastate common carriers; farm laborers, domestic servants, public charities, and others. This title shall not apply . . . to any person, firm or private corporation, including any public service corporation, that has regularly in service less than five employees in the same business within this State, unless such employees and their employers voluntarily elect to be bound." In view of the inconsistencies appearing in the volume published by the public printer between the recital of how the section as amended shall read and the title and enacting clause I have carefully examined the language of this Act of the General Assembly as it is enrolled in the office of the Secretary of State. 'l'he discrepancies which appear in the act as published by the public printer do not appear in the enrolled act. The enrolled act in reciting how the section as amended shall read uses the figure 10 as does the title and enacting clause. Therefore, applying the rule of the appellate courts of this State that where there is conflict between the language of an act of the General Assembly as it is enrolled in the office of the Secretary of State and as it appears in the volume published by the public printer, the former controls (Bass v. Doughty, 5 Ga. App. 458, Epstin v. Levenson, 79 Ga. 718) , it is my opinion that the present Workmen's Compensation Act of Georgia does not apply to any person, firm or private corporation, including any public service corporation, that has regularly in service less than 10 employees in the same business within this State, unless such employees and their employers voluntarily elect to be bound. 674 WORKMEN'S COMPENSATION-Amount of compensation for loss of thumb. July 18, 1939 Honorable Hal M. Stanley, Chairman The Industrial Board This will acknowledge receipt of your letter of July 7th, in which you inquire whether an agreement which has been submitted to the Industrial Board for approval for the loss of a thumb should be approved for thirty weeks or sixty weeks. As pointed out in your letter, the enrolled Act approved August 17, 1920, and which is now on file in the Secretary of State's office, provides in Section 32 thereof as follows: "Section 32, subsection (a) : For loss of a thumb, fifty percentum of the average weekly wages during sixty weeks." However, subsection (a) of Section 32 of the printed copy of this Act uses the word "thirty" in place of the word "sixty" as it appears in the enrolled Act, so that this subsection appears in the printed Act as follows: "Section 32, subsection (a) : For the loss of a thumb, fifty percentum of the average weekly wages during thirty weeks. " See Acts 1920, page 184. When a conflict exists between the language of the enrolled Act and the printed copy, the enrolled Act is controlling. Epsten v. Levenson and Company, 79 Ga. 718; Bass v. Doughty, 5 App. 458. In the case which you have under consideration, however, there is another factor that must be considered in determining how the law stands at present. By a resolution approved August 27, 1929 (Acts 1929, pages 1487-1489) the General Assembly created a Code Commission for the purpose of having prepared for adoption a new reviseli Code of the laws of this State and gave such Commission authority "to determine the form and manner in which all manuscript shall be submitted, so as to secure an accurate, concise, plain and comprehensive revision and codification of the laws of this State; and to that end said Commission may require that all useless, contradictory, and confusing language shall be omitted, changes in arrangements, wording and phraseology made, statutes digested, and inconsistencies reconciled. " The Code of 1933 which was approved by the Commission created by the resolution heretofore cited was adopted by the Act approved March 24, 1933 (Acts 1933, pages 31-34) . Section 1 of that Act provides in part: "... That the Code of laws ... which was approved by said Commis sian after it was so prepared, be and the same is hereby adopted and made of force as the Code of Georgia, having the effect of statutes enacted by the General Assembly of this State. " Section 32, subsection (a) of the Act of 1920 hereinabove quoted appears in the Code of 1933 as subsection (a) of Section 114-406 of the Code and reads as follows: "114-406 (a). Loss of a thumb, fifty percentum of the average weekly wages during 30 weeks. " Thus it will appear that the figure "30" as used in this Section of the Code is in clear conflict with the word "sixty" as used in the enrolled Act of 1920. However, the Code section standing alone is unambiguous and does not lend itself to construction. It is my opinion, therefore, that the Code section is con- 675 trolling, since, as provided in the adopting Act, the Code has "the effect of statutes enacted by the General Assembly of this State. " In the case of Barnes v. Carter, 120 Ga. 895, the Supreme Court of this State had before it a somewhat similar situation. By an Act passed in 1881 it was made the duty of the receiver of tax returns to issue executions against unreturned wild lands. This appeared in the Code of 1882 as Section 874 (b). In 1882 an Act was passed amending the former Act by striking therefrom "receiver of tax returns" and inserting in lieu thereof the words "tax collector". Notwithstanding the amendment, the section of the Code of 1882 was reproduced without change in the Code of 1895, Paragraph 821, which was adopted by the Legislature. Thus it became necessary to hold either that the tax collector should be declared the proper officer to issue the executions as declared by the Act of 1882, or the tax receiver as declared by the Code which had been adopted, or that either could do so. In holding that the tax receiver was the proper officer to issue these executions, the court said: "The codifiers of the last Code had knowledge of the Act of 1882, because they cite it in the marginal note to this section. The writer is not informed whether the amendment was inadvertently omitted, or intentionally disregarded by the codifiers because they considered that an act entitled 'An Act to amend section 874 (b) of the Code of 1882 in reference to the sale of wild lands' was contrary to the constitutional provision (Civil Code, Sec. 5779) that 'no law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.' But irrespective of the manner in which the provisions of the amending act were omitted, the practical question is the construction of the code section as it is incorporated in the present code. "In an elaborate and well-reasoned opinion, Justice Lewis (Central Ry. Co. v. State, 104 Ga. 831) reached the conclusion that the legislative act adopting the present code and making the same of force as the code of Georgia enacted into one statute all the provisions embraced in that code. Whatever is contained in the code has the force and effect of a statute, and this court has no power to modify, amend, or repeal a statute. Stone v. Georgia Loan and Trust Co., 107 Ga. 524. " And again: "When the law is clear and explicit and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative and not by judicial action. Shellenberger v. Ransom, 25 L. R. A. 575. It is an elementary rule of construction that when a statute is clear and unambiguous, it will be held to mean what has been clearly expressed. The section of the code is so forcibly expressive of legislative intent that nothing is left for the court to declare but that this section means what its words clearly import. " In the consideration of your question I have not overlooked those decisions to the effect that it was not intended to adopt as law every inaccuracy or error that may have crept into the Code. In those cases the inaccuracy or error left the Code section so ambiguous that it was necessary to look back to the original statute in order to ascertain the legislative intent. As pointed out above, subsection (a) of Section 114-406 of the Code of 1933 is so clear that no construction is necessary. Nor am I unmindful of the decisions of the Appellate Courts of 676 this State holding that the failure of the codifiers to include some of the provisions of an Act in the official Code which has been adopted by the General Assembly does not amount to a repeal by implication of those provisions. Those cases deal with a situation where the provisions of the Act not included in the Code do not conflict with the Code provisions. This distinction is clearly pointed out in the case of Georgia Railroad and Banking Company v. Wright, 124 Ga. 596, in which the court, after referring to the earlier cases of Central Railway Company v. The State, 104 Ga. 831, and Barnes v. Carter, 120 Ga. 895, said: "Those decisions merely held, as was inevitable, that by the adoption of the Code of 1895 all prior conflicting laws were repealed by implication " It might also be pointed out that since the Act of 1933 adopting the Code of that year the General Assembly has twice amended certain sections of Chapter 114 of the Code but has not seen fit to change or amend subsection (a) of Section 114-406. (See Acts of 1937, pages 528-536, Acts of 1939, pages 234-236.) I am, therefore, compelled to reach the conclusion that subsection (a) of Section 114-406 of the Georgia Code of 1933 is controlling and is the present law on the amount of compensation which may be recovered for the loss of a thumb. 677 GENERAL INDEX TO OPINIONS OF ATTORNEY GENERAL Page ACCOUNTANTS See Professions ADJUTANT GENERAL See Public Defense ADMINISTRATORS See Wills AD VALOREM TAX See Public Revenue ADVERTISEMENTS See Executions AGRICULTURE (Code Title 5) Commissioner of Agriculture: Commissioner's term ends December 31st____________________________ 5 Director of Markets: Salary_________________________________________________________________ 7 Fertilizers: Inspection fees not collectible on U. S. Government sales___________ 10 Inspection fees not collectible on out of state sales_________________ 11 Must contain at least 14 per cent. plant food________________________ 12 Penalty for deficiency in analysis, how collected_____________________ 12 Registration of materials by manufacturers or mixers_______________ 13 Registration of materials by manufacturers or mixers______________ 14 Report on bulk sales, how compelled_________________________________ 15 Insecticides and Fungicides: Manufacturers or jobbers must register_____________________________ 17 Penalty for sale or unregistered______________________________________ 18 Unapproved, registration refused____________________________________ 16 Market Bulletin: Subject matter oL___________________________________________________ 8 Market Sites: How sold and proceeds applied_______________________________________ 9 Naval Stores: Inspector's fee, how collected________________________________________ 19 Inspector's fee, when due____________________________________________ 20 ALIENS See Education; Persons ANALYSIS See Agriculture ANIMALS See Live Stock ANNUITIES See Insurance ATTORNEYS AT LAW (Code Title 9) Pardon does not automatically reinstate to the bar____________________ 21 Professional tax not required of Judge, when__________________________ 21 ATTORNEY GENERAL See Executive Department AUDITS See Executive Department 678 AUTOMOBILES Page See Motor Vehicles BANKS AND BANKING (Code Title 13) . Business license on banks by municipalities____________________________ 22 Double liability of stockholders abolished, when_______________________ 23 Private bank's checks; final payment, evidence of, when required_____ 23 Trust funds of State banks must be secured with bonds_______________ 25 BARBERS See Professions BEAUTICIANS See Professions :BEVERAGES See Intoxicating Liquors BLIND PERSONS See Elections BONDS See Education; Elections; Municipal Corporations CARRIERS See Motor Vehicles CATTLE See Live Stock CHAIN STORES See Public Revenue CHARITABLE INSTITUTIONS See Public Revenue CHAUFFEURS See Motor Vehicles; Public Safety CHIROPODISTS See Professions CHIROPRACTORS See Professions CHURCHES See Intoxicating Liquors OIGARS AND CIGARETTES See Public Revenue OIVIL ENGINEERS See Professions CIVIL WAR See Pensions COMITY See Professions COMMISSIONER OF AGRICULTURE See Agriculture CORONERS (Code Title 21) Appointment by Ordinary to fill vacancy pending election______________ 25 Inquests, when held.---------------------------------------------------- 26 COSTS See Courts; Criminal Procedure COUNTIES (Code Title 23) County Commissioners: Uniformity not required. _____ . _____________ ._________________________ 29 679 Page COUNTIES (Code Title 23)-Continued County Fiscal Authority: Cannot purchase from himself, when __________________~------------- 34 County Lines: How changed_________________________________________________________ 27 County Militia Districts: How created and numbered__________________________________________ 27 County Surveyors: Eligibility; deputy not exempt from registration_____________________ 31 County Taxes: Purposes and limits of levy___________________________________________ 34 County Treasurer: Commission on bonds and highway ,certificates, when allowed______ 30 County Warrants: How paid______________________________________________________________ 32 COUNTY ORGANS See Executions (Advertisement of Judicial Sales) COUNTY COMMISSIONERS See Counties COUNTY REGISTRARS See Elections COUNTY REVENUE See Counties; Public Revenue COUNTY SUPERINTENDENT OF SCHOOLS See Education; Elections COUNTY SURVEYORS See Counties COUNTY TAX ASSESSORS See Public Revenue COUNTY TAX COMMISSIONERS See Public Revenue (Tax Collectors) COUNTY TAXES See Counties; Public Revenue COUNTY TREASURERS See Counties COURTS (Code Title 24) Justices of the Peace: Are not county officers_______________________________________________ 41 EligibilitY-------------------------------------------------------------- 40 May be members of County Board of Education_____________________ 42 May be members of the General Assembly____________________________ 43 Service on defendant in suit on open account in Justices' court_____ 44 Terms end first Saturday in December________________________________ 39 Vacancies, how filled _______ ------- __________________________ ---------- 43 Juvenile Courts: City Courts may be designated by Superior Court as Juvenile Court___ 52 May commit boys under 18 to Training SchooL______________________ 53 Notaries Public Ex. Off. J.P.: May be members of County Board of Education_____________________ 45 Ordinaries: Changed from fee system to salary only by general law______________ 57 680 Page COURTS (Code Title 24)-Continued Ordinaries-Continued: Fees; effective date of Act approved March 4, 1939___________________ 51 Fees in lunacy and guardianship cases_______________________________ 49 Fees in making settlement of accounts when uncontested___________ 48 Proceedings when Ordinary is sick or disqualified____________________ 47 Vacancy; powers of Superior Court Clerk pending election__________ 46 Sheriffs: Changed from fee system to salary only by general law______________ 57 Costs paid from fines and forfeitures_________________________________ 58 Turnkey fees payable from fines and not from general funds_______ 58 Solicitors General: Change of residence within circuit not effect eligibility_____________ 59 Fees for services in cases not mentioned in schedule_________________ 61 No law requiring Solicitor to give bond_______________________________ 60 Superior Court Clerks: Advance deposit of costs in divorce cases_____________________________ 56 Bonds of deputies_____________________________________________________ 54 Changed from fee system to salary only by general law______________ 57 Fee for furnishing history of convict_________________________________ 55 Time for calling election to fill vacancy_______________________________ 56 CREDIT UNIONS; SMALL LOAN COMPANIES (Code Title 25) License and regulation vested in State Superintendent of Banks_______ 61 CRIMES AND PUNISHMENT (Code Title 26) Lotteries: What constitutes "gift enterprise"----------------------------------- 63 Pistol: Carrying in automobile_______________________________________________ 62 Sabbath or Sunday: Begins and ends, when_______________________________________________ 64 Operation of motion picture shows on Sunday unlawfuL____________ 65 Sale of gasoline on Sunday is a "work of necessity"__________________ 66 Unlawful to fish on Sunday___________________________________________ 67 Unlawful to pursue business on Sunday______________________________ 67 Undertaker: Unlawful for undertaker to influence burial place of body__________ 68 CRIMINAL PROCEDURE (Code Title 27) Arrest: Authority of sheriff to make arrest without a warrant______________ 68 Costs: Fees in criminal cases, when paid____________________________________ 71 J.P. may assess costs against prosecutor, when_____________________ 71 DAIRIES AND DAIRY PRODUCTS ~ See Food and Drugs DANCE HALLS See Public Revenue DEAD BODIES See Crimes and Punishment; Public Health DEEDS (Code Title 29) Authority of State to hold property under lease_________________________ 72 Record of title to State's propertY--------------------------------------- 72 681 Page DENTAL NURSES OR HYGIENISTS See Professions DIVORCE See Courts (Superior Court Clerks) DRUGGISTS See Professions EDUCATION (Code Title 32) Bible reading in State public schools____________________________________ 98 Bonds For School Buildings: Additions to building after consolidation_____________________________ 163 Effect of homestead exemption_______________________________________ 164 No particular coin payment can be specified_________________________ 165 Use of surplus bond tax levies________________________________________ 166 Valuation of assessable property, how determined___________________ 164 Consolidation of Schools: After order of County Board an election held in reasonable time____ 125 Authority of treasurer of new district to receive money of old_______ 125 Costs of holding elections, how assessed_____________________________ 118 Maintenance tax must be authorized by election in new district____ 125 New district may assume outstanding bonds of former district, how__ 124 Non-bonded former district does not assume bonds, when__________ 120 Outstanding bonded indebtedness of former district, how assumed 121 Procedure to consolidate; election for trustees and maintenance tax_ 119 Proceedings to consolidate non-bonded district with bonded district. 122 Qualifications of voters; majority necessary; election, where held.. 117 County Boards of Education: Authority to sell school buildings_____________________________________ 105 Compensation of members____________________________________________ 105 County tax assessor 1s ineligible for membership on County Board__ 103 Election of members by people contrary to general law unconstitutional_______________________________________________________________ 100 Grand Juror of body making selection is ineligible for membership__ 102 Local school district trustee may be a member of the County Board 102 Not compelled to elect teacher recommended by local district trus- tees_________________________________________________________________ 112 Not authorized to pay rewards in case of damage to school property 113 Not authorized to pay damages for injuries caused by school buses_ 113 Teachers contracts are contracts of County Boards and not the State 110 Teachers contracts are prepared by County Boards__________________ 111 Teachers employed by County Boards and not by the State_________ 108 Teachers have no recourse against the State for unpaid salaries, when_______________________________________________________________ 133 Teachers home________________________________________________________ 106 Terms of members---------:------------------------------------------ 99 Title to school buildings in County Boards___________________________ 125 Traveling expenses of members_______________________________________ 104 Trustee of local school district eligible for membership______________ 102 Who entitled to proceeds of insurance on burned school buildings__ 107 County School Superintendents: Educational requirements __ ------------ ___ ------------------------._. 152 682 Page EDUCATION (Code Title 32) -Continued County School Superintendents-Continued: Office at the court house, when_____________________________________ 153 Records follow the office and delivered to successor_________________ 152 County-wide school taxes for calendar year used to repay loan, when__ 136 County-wide school taxes for calendar year used to repay loan, when__ 133 Do local authorities have power to require teachers, upon marriage, resign?________________________________________________________________ 116 Entrance of children who become 6 after December 1st_________________ 148 Equalization Funds: How distributed_______________________________________________________ 150 Must be first applied to operate for the fiscal year appropriated____ 151 Governor unauthorized to issue warrants payable in another fiscal year_ 139 Independent School Systems: Authority to borrow money governed by city charter________________ 115 Authority to employ teachers_________________________________________ 115 Local School Districts: Bonds of treasurers, amount_________________________________________ 160 Eligibility of Federal Seed Loan administrator as trustee____________ 156 Have no authority to sell tax fi. fas. at discount_____________________ 162 Maximum levy for maintenance in locai district is five mills_________ 102 Number of trustees___________________________________________________ 154 Qualifications of voters in an election for trustee___________________ 156 Secretary-treasurer entitled to receive delinquent tax of former dist. 159 Secretary-treasurer not entitled to commissions on bond taxes_____ 158 Trustee not necessarily a qualified voter_____________________________ 155 Trustees are elected, not appointed__________________________________ 154 Who serves as trustee when an election is called and no votes cast___ 156 Money cannot be borrowed in one fiscal year in anticipation of another_ 133 Nurse cannot be paid a salary from educational funds_________________ 132 Payment of sum greater than principal and interest on loan illegaL___ 137 Pupils who are non-resident may not be counted in average daily attendance______________________________________________________________ 131 Refunding School Bonds: Constitutionality of Ga. Laws 1937 pp. 869-878 discussed_____________ 167 Salaries of County Farm Agents payable in part from educational funds. 150 State Board of Education: Appellate jurisdiction_________________________________________________ 77 Allotment of teachers as between white and colored races__________ 84 Authority over budgets of local units________________________________ 84 Authority to change or increase teacher load________________________ 80 Authority to take text books off the approved list___________________ 92 Can act as Accrediting Commission but cannot delegate such au- thority_____________________________________________________________ 78 Has no authority to use State school funds to assist in building____ 97 Has no authority to furnish text books to inmates of State prisons__ 96 Has no authority to sponsor lunch projects__________________________ 77 May prescribe different salary basis of teachers beyond 7 months____ 83 May qualify children at State institutions for federal vocational aid_ 81 Not obligated for unremitted collections by C. S. S. on text book sales 95 683 EDUCATION (Code Title 32) -Continued Page State Board of Education-Continued: Per diem and transportation allowance _________________ c____________ 96 State Board has no right to prescribe forms for teachers contracts__ 111 Teacher has no recourse against State if appropriation insufficient____ 133 Teaching denominationalism____________________________________________ 99 Text Books: Code sections cited____________________________________________________ 167 Transportation: County Board member cannot be financially interested______________ 130 County Boards or local district trustees authorized to transport____ 127 Discipline over pupils in school buses_________________________________ 128 Inspection of mechanical condition of school buses_________________ 128 Local district trustee cannot serve as driver of bus for compensation_ 129 Tuition: Cannot be assessed under the guise of consumable materials________ 141 Cannot be required of non-resident pupils if school receives funds__ 145 Cannot be required of resident pupils in State public schools_______ 140 Generally, local districts have "the authority to charge non-residents 144 May be charged non-resident pupils although parents own taxed property____________________________________________________________ 143 May not be required of non-resident when attending by contract___ 145 University of Georgia: Application of trust funds under will________________________________ 75 Cannot employ alien to teach, when_________________________________ 75 President of junior college is not a State officiaL____________________ 76 Use of bequest for library_____________________________________________ 74 W. & A. Rentals Discount: Discretionary with county fiscal authority to use for education_____ 168 Whether marriage deprives student of right to attend public schooL__ 147 White teachers cannot teach negro pupils or vice versa_______________ __ 148 EGGS See Food and Drugs ELECTIONS (Code Title 34) County Officers: County School Superintendent not voted on in independent district 196 County School Superintendent's election governed by general law__ 197 Ordinary, vacancy in office; qualification of voters_________________ 198 Ordinary, vacancy in office; when election held_____________________ 199 Sheriff, vacancy in office; when election held; qualifications______ 200 Superior Court Clerk, vacancy in office; qualifications of voters___ 201 Tax Collector, vacancy in office; qualifications of voters____________ 203 Disqualified Persons: Conviction of certain crimes disqualify______________________________ 178 Conviction on liquor charge is not a "crime involving moral turpitude"_________________________________________________ -------- ____ -- 178 Restoration of voting privilege by pardon____________________________ 179 June General Election: Qualifications of voters_______________________________________________ 180 Justices of the Peace: Notice of candidacy___________________________________________________ 203 Vacancy in office, how filled ________________ --_______________________ 204 684 Page Elections (Code Title 34) -Continued Lists of Persons Disqualified: Furnished by Tax Collector, Ordinary and Superior Court Clerk____ 172 Members of Congress: Vacancy; qualifications of voters_____________________________________ 195 Members of the General Assembly: Vacancy in State Senate, how filled__________________________________ 188 Vacancy in State Senate, in which county or counties election held_ 189 Presidential Electors: Eligibility_________________________________________________ ---------____ 194 Primary Elections: All poll taxes must be paid, if due, in order to qualify_______________ 210 Authority of party executive committee as to plurality or majority__ 213 Authority of party executive committee to designate voting places__ 217 Authority of party executive committee as to C. S. S. eligibil.lty ____ 218 Authority of registrars to close lists__________________________________ 212 Date of primary for members of General Assembly__________________ 214 Qualifications of voters in county primaries_________________________ 208 Time between primary and general election__________________________ 215 Time of holding county primary______________________________________ 205 Time of payment of poll taxes________________________________________ 209 Voters' lists, how prepared ______ ~------------------------------------ 207 Voters in county primaries held after December 20th; qualifications_ 211 Voters' list, how filed_________________________________________________ 219 Qualifications of Voters: Age limits of persons subject to poll tax; person over 21 registering__ 172 Blind persons, or females who do not register, exempt from poll tax 177 Constitutional requirements_________________________________________ 176 Females, when subject to poll tax; when subject to arrears_________ 173 Grandfather's clause_________________________________________________ 176 Person becoming 21 nine days after general election ineligible_______ 177 Resident of another state moving to Ga. in Dec. subject next poll tax 175 Voter 61 years of age must pay poll taxes in arrears for prior years__ 175 Registration of Voters: Elector's oath must be subscribed in person_________________________ 169 Registration Lists: Shall show race, age, occupation and residence of each voter_______ 170 Secret ballots____________________________________________________________ 225 Special Elections: Qualifications of voters_______________________________________________ 195 Qualification after preparation of lists by registrars_________________ 187 School Building Bonds: Qualifications of voters_______________________________________________ 223 Time for payment of poll tax_________________________________________ 224 Time for registration of voters_______________________________________ 224 Voters' lists, how prepared___________________________________________ 222 Voting by Mail: Absentee voting law requires thirty days notice of intention________ 220 How accomplished____________________________________________________ 221 Voting Residence: How changed from one militia district or county to another________ 184 Persons temporarily absent by reason of employment by State______ 182 685 Page ELECTIONS (Code Title 34) -Continued Voting Residence-Continued: Six months' residence in county required____________________________ 185 Transfer between primaries__________________________________________ 186 Transfer of registration from one county to another________________ 184 Where, When and How Held: Election blanks, how furnished______________________________________ 192 Expense of general elections imposed on counties, not the State____ 192 Fees of Ordinaries in elections________________________________________ 191 Hours polls are kept open_____________________________________________ 190 Write in ballots________________________________________________________ 193 ELEEMOSYNARY INSTITUTIONS (Code Title 35) Milledgeville State Hospital: Eligibility of State Welfare Board member to rent State farm_______ 228 Eligibility of State Welfare Board member as county physician______ 228 Funds from pay patients and sale of cotton go into general treasury_ 230 Not subject to eminent domain of electric membership corporations 227 EMINENT DOMAIN See Eleemosynary Institutions EXECUTIONS (Code Title 39) County Organs: Change from weekly to semi-weekly doesn't effect eligibility________ 236 How changed; paper with general circulation published 2 years ____ 234 How changed; rules for selection_____________________________________ 231 Two years' publication and general circulation in county required___ 232 EXECUTIVE DEPARTMENT (Code Title 40) Attorney General: Authority of Governor to appoint special assistants_________________ 245 Number and assignment of assistant attorneys generaL____________ 245 Power to render opinions_____________________________________________ 244 Budget Bureau: Powers________________________________________________________________ 240 Powers, further discussed ____________________________________ "_______ 242 Governor: Authority to appoint special assistant attorneys generaL___________ 245 Has no power to impound charter of municipality___________________ 240 Power to require bonds of State officials executed by local agents___ 238 Time in which he may revise bills_____________________________________ 237 State Auditor: Has no legal duty to audit books of State Hospital Authority_______ 247 Supervisor of Purchases: Required to give preference to Georgia products____________________ 250 FARMERS MARKETS See Agriculture FERTILIZERS See Agriculture FISH AND FISHING See Game and Fish FLAGS See Public Defense 686 Page FOOD AND DRUGS (Code Title 42) Dairies and Dairy Products: Allocation of funds for enforcement of Milk Control Act____________ 255 "Public dairy" defined in Milk Control Act___________________________ 253 "Stores" do not have vote in milk shed election______________________ 253 Eggs: Egg inspection stamps not required of hotels or restaurants________ 255 Regulations in General: Cakes for sale containing artificial coloring must be labelled________ 251 Cocoanut pies cannot be sold between June 1st and September 1st__ 251 Dangerous drugs can only be dispensed by physician's prescription___ 252 Orders for dangerous drugs not taken over telephone_______________ 252 Regulations may be promulgated by Commissioner of Agriculture____ 250 FORESTRY AND GEOLOGY (Code Title 43) Department of Natural Resources: Appropriations and funds for operation_____________________________ 260 Authorized to participate in benefits of federal act on wildlife________ 263 Powers________________________________________________________________ 255 State cannot be a joint owner of property--------------------------- 262 FUELS See Public Revenue FUGITIVES FROM JUSTICE (Code Title 44) Expenses for Returning Fugitives: Sheriff's compensation for returning criminals to this State________ 263 FUNGICIDES See Agriculture GAME AND FISH (Code Title 45) Department of Game and Fish: Fines arising from violation of game and fish laws___________________ 269 Fines arising from violation of game and fish laws, how divided_____ 270 Powers of inspectors and patrolmen__________________________________ 266 Power of judge to probate or suspend sentence in game and fish case_ 273 State funds cannot be used for federal fish hatcheries_______________ 264 Fishing in General: Fishing on lands of another without permission is unlawfuL_______ 287 Fishing prohibited between April 15th and June 1st__________________ 282 Private pond, what constitutes_______________________________________ 276 Private pond, defined_________________________________________________ 277 Shrimp in territorial waters___________________________________________ 286 Shrimp season cannot be changed by tide water inspector___________ 285 Fishing Licenses: Boat license required for commercial fishing_________________________ 274 Cooked fish, sale of, not taxed________________________________________ 283 Employees of owners of private ponds not exempt from license_____ 284 Non-residents cannot be licensed for commercial fishing in tide waters______________________________________________________________ 275 Oysters, dealers or distributors, how taxed__________________________ 292 Persons over 16, except owner, subject to license in private ponds____ 284 Purse boats taxable if engaged in fishing_____________________________ 274 Shad fishing license___________________________________________________ 288 Shad fishing license, when required__________________________________ 291 687 Page GAME AND FISH (Code Title 45) -Continued Fishing Licenses-Continued: Wholesale fish dealers license act, when effective____________________ 293 Wholesale fish dealers license, who subject___________________________ 293 Fishing Licenses (Municipal) : Municipalities may require license of fish dealers____________________ 292 Game: Deer, closed seasons prohibit hunting on private property__________ 281 Marsh hens, possession illegal in certain counties___________________ 281 Game Licenses: "Hunting" defined____________________________________________________ 271 Hunting with dogs, but without a gun, is hunting__________________ 272 GARNISHMENT (Code Title 46) State, counties and municipalities not subject_________________________ 294 GENERAL ASSEMBLY (Code Title 47) Apportionment of representatives______________________________________ 296 Candidates for House qualify with the Ordinary----------------------- 296 Constitutional amendments, how submitted___________________________ 298 Constitutional amendments, notice of, how published________________ 300 Eligibility of members______________________________________________ "--_- 297 Is only agency of the State authorized to consent for suit of State______ 301 Operating costs of State department paid from fees, no recovery, when_________________________________________________________________ 302 Power to relieve upon forfeited recognizances__________________________ 300 Power to provide for payment of past due teachers' salaries___________ 298 GEORGIA REPORTS See State Librarian GOVERNOR See Executive Department GUARDIAN AND WARD (Code Title 49) Appointment, how made _________________________________________ ------- 305 Insane Persons: Committed to State hospital must be citizens of this State__________ 310 Disposition on special pleas of insanitY------------------------------- 310 Endorsement of checks .. ______________________________________________ 314 How committed to State hospitaL____________________________________ 308 How restored to sanity and citizenshiP------------------------------- 314 Ordinary's disqualification on account of relationship_______________ 313 Procedure to restore citizenshiP-------------------------------------- 315 Upon discharge may become charges on county if paupers__________ 311 HEALTH See Public Health HOMESTEAD See Public Revenue HUSBAND AND WIFE (Code Title 53) Marriage, ages of parties ____________________________________________ . ___ 316 Marriage, five days notice, when required----------------------------- 317 INCOME TAXES See Public Revenue 688 Page INDUSTRIAL RELATIONS (Code Title 54) Commissioner of Labor: Cannot abolish a position created by law_____________________________ 327 Has authority to appoint Appeals Referees___________________________ 327 Has power to abolish a position not created by law__________________ 325 Work certificates for minors, how issued_____________________________ 321 Work certificates for minors; duties of school superintendents______ 322 Employment A-gencies: Subject to license tax, when; branches taxable, when; time paid___ 318 Unemployment Compensation: Applicant's training determined by Supervisor of Examinations_____ 339 Department is a separate administrative unit, when________________ 331 Employment or discharge of director_________________________________ 336 Exemption of certain positions from merit system___________________ 332 Records of Board of Review not denied Commissioner, when________ 340 INSANE ASYLUM See Eleemosynary Institutions INSANE PERSONS See Guardian and Ward INSECTICIDES AND FUNGICIDES See Agriculture INSURANCE (Code Title 56) Annuity contract receipts are taxable under gross premiums statute___ 354 County Boards of Education not liable for injury or damage___________ 363 Fraternal selling industrial insurance required to deposit $100,000. oo__ 370 Fraternal selling life insurance required to deposit $100,000.00, when__ 372 "Hair dresser" is a hazardous occupation_______________________________ 374 Medical examinations required on policies of fraternal benefit societies 375 Radio advertising by unlicensed company not prohibited_______________ 354 "Relief bond" executed by an insurance company constitutes insurance 369 State fire inspector's tax is levied on gross premium receipts___________ 341 State fire inspector's tax collectible on gross premium receipts________ 342 Title insurance companies, regulation__________________________________ 378 INTOXICATING LIQUORS (Code Title 58) Alcoholic Liquors: Liquor stores cannot open on election days__________________________ 385 Liquor stores license requirements___________________________________ 386 Liquor stores required to be certain distance from school or church 384 Liquor, unstamped, in transit to military reservation in this State_ 388 Manufacture is not a crime involving moral turpitude_______________ 389 Malt Beverages: Issuance of license outside municipalities discretionary_____________ 381 Licensee has no vested right to sell beer______________________________ 380 Taxation; ten ounce bottle filled with nine ounces, how taxed______ 382 Wine: Made from home grown elder berries taxable if made for sale______ 383 JUSTICES OF THE PEACE See Courts JUVENILE COURTS See Courts 689 LAW LIBRARIES Page See State Librarian LEGISLATURE See General Assembly LIFE INSURANCE See Insurance LIVE STOCK (Code Title 62) Bang's disease control under State Veterinarian________________________ 397 Bang's reactor cattle appraisal value____________________________________ 394 Bang's reactor cattle destroyed; payment from general funds in treasury_______________________________________________________________ 396 Cats, property rights____________________________________________________ 391 Municipalities may prohibit cattle from running at large_______________ 392 LUNATICS See Guardian and Ward LUNATIC ASYLUM See Eleemosynary Institutions MAIL See Elections MALT BEVERAGES See Intoxicating Liquors MARRIAGE See Husband and Wife MASTER AND SERVANT (Code Title 66) Enticing laborers, penalty_______________________________________________ 401 Wages to employees, how paid___________________________________________ 399 Wages to employees, penalty for non-payment_________________________ 400 Wages to employees, when paid__________________________________________ 400 MILITIA See Public Defense MILITIA DISTRICTS See Counties MILK See Food and Drugs MILLEDGEVILLE STATE HOSPITAL See Eleemosynary Institutions MORAL TURPITUDE See Elections MOTOR FUELS See Public Revenue MOTOR VEHICLES (Code Title 68) Bicycles meeting other vehicles must pass to the right________________ 405 County owned motor vehicles subject to license_______________________ 401 Dealers' tags used only when demonstrating or transporting for sale___ 402 Motor carrier vehicles required to carry fire extinguishers_____________ 406 School buses must stop on right side of the highway__________________ 403 Speed limit unenforceable if too general or indefinite__________________ 402 MUNICIPAL CORPORATIONS (Code Title 69) Bonded debt limited to seven per cent_________________________________ 406 Cannot charge compensatory fees of motor carriers___________________ 413 City limits, how extended_______________________________________________ 410 690 Page Municipal Corporations (Code Title 69)-Continued Eligibility of councilman for mayor______________________________________ 407 Power of city marshal to serve warrant__________________________________ 411 Power to prohibit peddlers from entering private residences to solicit____ 408 NATIONAL GUARD See Public Defense NAVAL STORES See Agriculture NEWSPAPERS See Executions (Advertising Judicial Sales) NOTARIES PUBLIC EX. OFF. J. P. See Courts; Elections OPTOMETRISTS See Professions ORDINARIES See Courts OSTEOPATHS See Professions PEDDLERS See Professions PENAL INSTITUTIONS (Code Title 77) Act granting parole power is constitutionaL____________________________ 414 Deposit by counties for clothing for prisoners on discharge____________ 422 Furnishing suit of clothes and railroad fare to discharged prisoners___ 422 Jurisdiction of Prison and Parole Commission over prisoner begins when_______________________________________________________________ 417 Prison and Parole Commission without authority to remove records___ 417 Sentence for escape of prisoners_________________________________________ 419 State Board of Penal Corrections: Has power to transfer women prisoners from one institution to another_______________________________________________________________ 422 Has right to employ prison inspectors________________________________ 424 Right to transfer boys under 18 to Training School for Boys_________ 423 PENSIONS (Code Title 78) Allowance for Confederate Soldiers who are inmates of Soldiers Home_ 430 Eligibility of Confederate Soldier for pension rolL______________________ 425 Funeral expenses of Confederate Soldier or his Widow__________________ 429 Ordinaries are entitled to their fees for paying pensions, when_________ 430 Ordinaries fees payable to their legal representatives in case of death____ 431 Payment to pensioners temporarily absent from the State_____________ 429 Widow of Confederate Soldier who remarries and divorces is not entitled 427 Widow of Confederate Soldier, when entitled to pension_______________ 426 Widow of Confederate Soldier, when entitled to husband's accrued pension________________________________________________________________ 427 Widow's claim for pension delayed without fault to her, when and how paid------------------------------------------------------------------- 428 PERSONS (Code Title 79) Alien after citizenship may change name by petition to Superior Court__ 432 Aliens cannot be employed by State unless no qualified citizen_________ 434 Name changed by petition to the Superior Court_______________________ 434 PHARMACISTS See Professions 691 PHYSICIANS Page See Professions PROFESSIONS (Code Title 84) Accountants: Board cannot grant license to person under 2L______________________ 437 Board may permit persons under 21 to stand examination___________ 437 Eligibility of Board members__________________________________________ 435 Qualifications of applicants___________________________________________ 436 When subject to professional tax_____________________________________ 439 Barbers; Beauticians: Separate licenses and fees required___________________________________ 439 Billiard Rooms: Unlawful for minors to play at public pool room_____________________ 454 Businesses: Blind persons may peddle without license; definition of "blindness"__ 456 Definition of "peddling"---------------------------------------------- 455 Disabled Soldier or Veteran: Certificate entitles conduct of more than one business____________ 459 Employees, when exempt from local insurance agent's license_____ 465 Exempt from municipal license or peddler's tax, when_____________ 458 May employ several persons without losing exemption_____________ 463 May have more than one business or more than one employee_____ 460 May have more than one employee_________________________________ 462 May operate business in more than one county-------------------- 461 May peddle or conduct business without a license, when__________ 457 Not exempt from ad valorem tax on real estate_____________________ 466 Not exempt from license fee on fertilizers__________________________ 470 Not exempt from mattress law______________________________________ 472 Not exempt from motor vehicle license fees________________________ 469 Not exempt from municipal ad valorem tax on real estate_________ 467 Not exempt from oleomargarine or cigarette stamp taxes__________ 470 Not exempt from poll taxes_________________________________________ 464 Not exempt from professional taxes________________________________ 464 Not exempt from State occupational taxes ___ ._____________________ 468 Not exempt from regulatory fees or fishing license_________________ 471 Not exempt from wholesale fish dealer's license____________________ 469 Chiropodists: Qualifications for license_____________________________________________ 446 Chiropractors: Attendance on educational programs_________________________________ 445 Fees; reciprocity; renewal of license; educational requirements_____ 442 Dental Nurses or Hygienists: Board's power to prescribe preliminary education or training_______ 448 Cleaning teeth does not constitute practice of dentistry____________ 448 License requirements_________________________________________________ 447 Engineers and Surveyors: Advertising as "tire engineer" does not constitute engineering____ 473 Deputy county surveyors_____________________________________________ 476 Persons supervising installation of elevators subject to license____ 478 Regulations; renewal of license_______________________________________ 477 When liable for professional taxes____________________________________ 474 692 PROFESSIONS (Code Title 84) -Continued Page Highway and Street Contractors: License reqUirements_________________________________________________ 483 State Licensing Board has no power to employ counseL_____________ 485 Optometrists: Osteopath has no right to examine eyes or fit glasses________________ 449 Osteopaths: Osteopath cannot issue prescriptions for drugs______________________ 450 Osteopath has no right to examine eyes or fit glasses________________ 449 Pharmacists: Herbs cannot be compounded or vended except by licensed pharmacist______________________________________________________________ 453 Professional Taxes: Remedies against persons failing to pay professional taxes__________ 487 PUBLIC DEFENSE (Code Title 86) Flag: Description of the flag of the State of Georgia_______________________ 489 Law against advertising and misuse__________________________________ 489 Statutes on the State flag____________________________________________ 490 National Guard: Resolution of General Assembly to pay medical services of member_ 488 PUBLIC FINANCE (Code Title 87) Election on Issue of Bonds: Length of notice by publication______________________________________ 494 Municipal Refunding Bonds: Gainesville refunding bonds; requirements of vote to issue_________ 495 Vote reqUired for issuance____________________________________________ 496 PUBLIC HEALTH (Code Title 88) State Board of Health: Police power over permit to impound waters_________________________ 497 Power to inspect septic tanks on private property___________________ 498 State Department of Public Health: Pillows regulated under the mattress law____________________________ 502 Power to acquire lands for enlargement of Tuberculosis Sanitorium 499 Unauthorized to furnish drugs to Osteopaths or Chiropractors_____ 500 Quarantine and Sanitation: Counties can levy taxes without approval of grand juries, when____ 501 Transportation of Dead Bodies: Removal of dead bodies from one cemetery to another, how________ 504 PUBLIC OFFICERS (Code Title 89) Eligibility___________________________________________________________ 505 PUBLIC PROPERTY (Code Title 91) Western and Atlantic Rental Warrants: Governor authorized to place in State Treasury funds fromR. F. C. 506 PUBLIC REVENUE (Code Title 92) Assessments for Improvements: City paving assessment against Confederate cemetery property of State_______________________________________________________________ 567 County Taxes: Peddlers_______________________________________________________________ 566 Surplus, how used____________________________________________________ 565 693 PUBLIC REVENUE (Code Title 92) -Continued Page Homestead-personalty: Articles exempt not confined to location of applicant's residence__ 537 Exempted from municipal taxation_________________________ c_________ 533 Exemption requires no fee to municipal or county authority________ 538 May be exempt on property in county other than owner's residence 534 Whether exemption applies to prior issue of bonds, discussed_______ 538 Homestead-realty: Application, by whom filed, in case of change of ownership_________ 524 Application can only be filed with Tax Receiver or Tax Commissioner 523 Applicant's right of appeal from denial of exemption________________ 525 Applicant must apply for exemption on or before April 1st__________ 522 Exempt from independent school maintenance tax__________________ 519 Exemption applies to lands separated only by railroad and county line _____________ --------------------------------------------------- 528 Exemption applies to lands of owner immediately surrounding residence___________________________________________________________ 526 Exemption applies to lands separated only by public road___________ 527 Exemption applies to property used primarily as a homestead residence_______________________________________________________________ 528 Exemption available to owner of single tract lying in two counties__ 521 Exemption available to owner having house under construction Jan. 1st____________________________________________________________ 522 Exemption where children of deceased parents occupy homestead__ 530 Joint owners entitled to exemption, when; year's support__________ 532 Residence of church-minister exempt, but personalty not exempt__ 531 Subject to taxation to pay principal and interest of bonds__________ 520 Wife owning homestead residence, adjoining land of husband not exempt_____________________________________________________________ 530 Income Taxes: Salaries of Judges of the Superior Courts____________________________ 564 Motor Fuel Taxes: Counties entitled to distribution of one cent per gallon_____________ 552 Counties not exempt from payment__________________________________ 555 Housing authority not exempt _______________________________ c_______ 551 Motor Vehicle License: Plates cannot be transferred from one vehicle to another___________ 563 Plates not placed on sale until January 1st___________________________ 560 Registration and fees required of public passenger buses____________ 561 Occupation Taxes: Archery________________________________________________________________ 548 "Broker" defined______________________________________________________ 543 Chain stores-individual and partnership____________________________ 546 Dance halls, operation by permitting coin machine music___________ 550 Dance halls; taxation; regulation; power of county commissioners__ 548 Hospitals, if charitable, are exempt from occupation taxes__________ 512 Ice, no special state or county tax on hauling________________________ 542 Professional men are not required to register with Ordinary________ 542 Professional taxes, when due_________________________________________ 547 Registration of business with Ordinary______________________________ 541 Remedy against defaulters___________________________________________ 540 Whether one is a wholesaler or retailer is a question of fact_________ 544 694 Page PUBLIC REVENUE (Code Title 92) -Continued Poll Taxes: Not unconstitutionaL ____________________________ --C- _____ ____ __ __ ___ 507 Penalty for non-payment_____________________________________________ 508 Rolling Stores: County unauthorized to tax__________________________________________ 559 Power of county to tax, discussed____________________________________ 557 State Board of Tax Appeals: Employment of reporter to take testimony___________________________ 595 State Revenue Commissioner: Has no power to waive interest on taxes due the State_______________ 594 State Taxes: County attorney not authorized to charge State for fi. fas. collected 571 Street Taxes: May be levied by municipalities_______________________________________ 509 Taxation, Ad Valorem: Actual owner may pay tax although assessed in name of another____ 587 Assessments; arbitration_____________________________________________ 589 County authorities have no power to waive interest on executions__ 593 Duties of county authorities in collection of tax executions_________ 590 Fraternity house not exempt from ad valorem taxation______________ 512 January 1st assessable date___________________________________________ 589 New industries exemption applies to all county ad valorem taxes____ 516 New industries exemption does not apply to replacement of building 517 Proportionate payment by owner or lienholder______________________ 586 Re-settlement projects of federal government exempt, when_______ 514 Situs of personal property for taxation_______________________________ 510 Sheriff's fees on tax executions_______________________________________ 592 Tax execution may be enforced after the defendant dies____________ 588 Transfer of tax executions____________________________________________ 591 Tax Collectors: Commissions__________________________________________________________ 577 Commissions, amendment (Ga. Laws 1939 pp. 370-372) construed__ 580 Commissions, amendment (Ga. Laws 1939 pp. 370-372) construed.. 581 Commissions, amendment (Ga. Laws 1939 pp. 370-372) construed__ 582 Commissions on intangible tax collections____________________________ 584 Delivery of books and records to successor.__________________________ 576 Duties_________________________________________________________________ 574 Have no authority to change tax assessments________________________ 577 Insolvent lists _______________________________________________________ .. 585 List of commissions to be filed________________________________________ 583 No law authorizing employment of special tax collector_____________ 572 Slot machines, though unlawful, may be taxed______________________ 569 Who may be sureties on bond of Tax Collector_______________________ 571 PUBLIC ROADS See Roads PUBLIC SAFETY (Code Title 92 A) Courts for Trial of Traffic Offenses: Ordinary or Recorder has no jurisdiction in counties with City court 620 Ordinary's jurisdiction limited to violation of traffic laws__________ 618 Municipal Court's jurisdiction over traffic offenses_________________ 620 695 Page PUBLIC SAFETY (Code Title 92-A) -Continued Courts for Trial of Traffic Offenses-Continued: Sheriff entitled to fee when arrest is made by him; other costs_____ 623 Sheriff not entitled to fee for arrest when made by State patrolman 622 Warrant necessary for arrest of traffic law violator, when__________ 621 Crimes: License cancelled upon conviction of certain offenses_______________ 626 Trial judge without authority to change sentence, when____________ 626 Unlawful to drive municipal owned truck without driver's license___ 625 Department of Public Safety: Power to promulgate rules as to intersections________________________ 596 Division of Criminal Identification: Power to take finger prints and photographs_________________________ 607 Driving and Traffic Regulations: Persons in traffic accidents required to report_______________________ 613 Georgia State Patrol: Duties; jurisdiction___________________________________________________ 599 Limitation of power to arrest_________________________________________ 606 Location of headquarters_____________________________________________ 597 Power of arrest for violations of traffic laws_________________________ 601 Speed laws, Civil Aeronautics Administration vehicles not exempt__ 601 Motor Vehicle Drivers' Licenses: Operator of trackless trolley must have public chauffeur's license__ 609 Person operating farm tractor temporarily on highway not subject_ 611 School bus driver required to have public chauffeur's license________ 609 Revocation of Licenses: Power of Department of Public Safety to revoke____________________ 615 Suspension of Licenses: Power of Department of Public Safety to suspend___________________ 617 PUBLIC SERVICE COMMISSION See opinions of Marshall L. Allison this volume. ROADS (Code Title 95) State Highway Board: Powers of chairman and members____________________________________ 627 Power to grant permit to pipe line company to cross highways______ 636 State Highway Department: Federal Statute Title 23 Section 55 U. S. C. A. Diversion-penalty___ 627 SCHOOLS See Education SCHOOL BOOKS See Education SHERIFFS See Courts SMALL LOANS See Credit Unions SOCIAL WELFARE (Code Title 99) County Departments of Public Welfare: County Loan Association member is eligible as county board member 658 Eligibility of County Welfare Board Members________________________ 660 Local school district trustee is not eligible as member_______________ 659 Notaries Public Ex. Off. J. P. are eligible as members_______________ 657 Three mill levy cannot be used for paupers not qualified____________ 655 696 SOCIAL WELFARE (Code Title 99) -Continued Page Housing Authorities: How farmed_________ __________________________________________________ 663 Old Age Assistance: Cooperation between State and federal agencies_____________________ 661 State Department of Public Welfare: Authority not given to sell water to others___________________________ 648 Board fixes standards; Director appoints_____________________________ 653 Cannot delegate to other Boards power to perform official acts_____ 651 Contract with Robert & Co. legaL___________________________________ 649 No express provision of law for publishing list of pensioners_________ 653 Powers of Director, Chairman and members_________________________ 641 Power to borrow money_______________________________________________ 644 Power to remove employees___________________________________________ 646 Power to require examination of personneL_________________________ 645 Sterilization law applicable to patients at State institutions_________ 654 SOLDIERS (Disabled) See Professions SOLICITORS GENERAL See Courts STATE HIGHWAY DEPARTMENT See Roads STATE LIBRARIAN (Code Title 101) Law books to counties, how furnished_________________________________ 665 Law books to counties, special act unconstitutionaL__________________ 666 Law books to counties, special act unconstitutionaL__________________ 667 Matrices for law books required to be stored___________________________ 668 SUPERIOR COURT CLERKS See Courts TAX COLLECTORS See Public Revenue TAXATION See Public Revenue UNIVERSITY OF GEORGIA See Education VEHICLES See Motor Vehicles VETERINARIANS See Live Stock VETERANS See Professions WAREHOUSEMEN (Code Title 111) Terms of warehouse receipt______________________________________ . 670 WEIGHTS AND MEASURES (Code Title 112) Jurisdiction of Ordinaries ______________________________________________ - 671 WESTERN AND ATLANTIC RAILROAD See Public Property WILLS; DESCENT; ADMINISTRATION OF ESTATES Year's support superior to lien for previously accrued taxes____________ 672 WORKMEN'S COMPENSATION (Code Title ___ ) Act applies to employers having 10 or more employees___________________ 672 Amount of compensation for loss of thumb_____________________________ 674 OPINIONS OF ASSISTANT ATTORNEYS GENERAL OF GEORGIA 1939-1941 PART II OPINIONS OF MARSHALL L. ALLISON Assistant Attorney General of Georgia Assigned to GEORGIA PUBLIC SERVICE COMMISSION A-3 COURTS; SUPERIOR COURT CLERK-Vacancy in office. Time of holding special election. September 6, 1939 Hon. James V. Carmichael Attorney at Law Marietta, Georgia Reference is made to your telephone call to me this morning. You ask whether the ordinary is required to call an election to be held within 60 days to fill a vacancy in the office of the clerk of the superior court caused by the death of the incumbent whose term expires more than 6 months after the date of his death. Your question is not one upon which the Law Department can render an official opinion, but in order to be helpful I give you my personal views of the law as it relates to your question. No specific time limit for holding an election is contained either in Section 24-2704 or Section 24-2707 of the 1933 Georgia Code relating to vacancies in the office of clerk of the superior court, and the appointment by the ordinary of some qualified person to discharge the duties of clerk until the vacancy is filled. However, I think Section 81-216 of the 1933 Georgia Code has the effect of fixing 60 days after the vacancy as the time within which an election must be held to fill a vacancy. Said Section reads as follows: "If any county shall refuse or neglect to elect a sheriff or clerk for 60 days after a vacancy shall have occurred, suitors may apply to the clerk or sheriff of an adjoining county, and have the requisite duty performed by him, and his acts shall be as valid as if he were an officer of such delinquent county." It will be noticed that the above quoted statute plainly declares that a county is delinquent if it shall refuse or neglect to elect a clerk within 60 days after a vacancy shall have occurred. The statute makes provision for the performance of the duties of the clerk in such a case by a clerk of an adjoining county. In view of the aforesaid express provision there might arise a serious question of the validity of the acts of any person appointed by the ordinary who may attempt to serve more than 60 days after the date of the vacancy. A clerk of the superior court performs important services and there being a reasonable implication that an election must be held within 60 days from the date of the vacancy, I think it would be too great a risk to run to allow a person appointed as clerk by the ordinary pending the filling of the vacancy to hold his appointment more than 60 days after the vacancy. EDUCATION; LOCAL SCHOOL DISTRICTS-Power to charge tuition for nonresident pupils. August 5, 1940 Hon. Joe H. McGiboney, Superintendent Carroll County Public Schools Carrollton, Georgia Your letter of August 3 addressed to the Attorney General reached the office of the Department of Law during the absence of Mr. Arnall, who is out of the State on official business. You state that you have the question of whether or not a bonded local tax district in which there is a local tax levy and in which there is situated a senior high school may charge tuition from non-resident pupils attending the senior high school, where such pupils reside outside the district in which the high school building is situated. This question is not one A-4 upon which the Attorney General is authorized to render an official opinion. He is only authorized to render official opinions to the Governor and the heads of the State departments on matters concerning the State. The operation of the consolidated schools in a particular district is a matter addressed to the school authorities of the county and the district. A legal question involving such matters is one which properly should be submitted to the County Attorney or to such private attorneys as the authorities of the local district may consult. This office is reluctant to answer such questions. However, we are always glad to give our personal view, with the understanding that it is not binding on the authorities having charge of such matters and with the further understanding that it is not to be used to influence the County Attorney or any other local attorney to whom the matter may be presented. Under those conditions, I give you below citations of some statutes and a decision of the court which may be of help in your problem. Section 32-937 of the 1933 Georgia Code in part provides: "Admission to all common schools shall be gratuitous to all children between the ages of six and eighteen years residing in the subdistricts in which the schools are located. " (Emphasis supplied.) Section 32-1113 of the 1933 Georgia Code in part provides: "They (trustees of local tax districts) shall have the right to fix the rate of tuition for non-resident pupils . . . " In the case of Taylor et al., trustees, v. Matthews et al., 10 Ga. App. 852-861, at page 860, the Court, speaking through Justice Russell, said: "The power of fixing the rate of tuition for pupils not residing in the district naturally implies the power of the trustees of the district in which the non-resident pupils reside to agree, upon their part, to pay this tuition; because each child of school age (with some exceptions) is equally entitled to receive the benefit of the common-school fund apportioned by the State. It would be mockery to hold that the law, while devolving upon trustees of the common schools the solemn and responsible duty of providing means for the education of children of school age within their district, denies them the power to perform this duty. It is within the power of trustees of any school district in this State to provide means by which all children of school age in every school district may receive the benefit of the school fund belonging to that district. And to that end the trustees may either contract with the trustees of an adjoining school district for the payment of the tuition of non-resident pupils to themselves, or may agree to pay to the trustees of an adjoining school district, whether in the same or in an adjoining county, the tuition of resident pupils when they determine that these pupils can more advantageously or conveniently attend the school of the adjoining district than the school of the district in which they reside. " It appears from your letter that pupils from three districts in which no high school is provided attend a high school in another district. Unless the trustees of the local district in which the high school is situated, by contract with the outside local districts, or in consideration of certain additional funds given to operate the high school in the district for the benefit of the pupils of other districts, agree to allow the non resident pupils to attend the high school, it would seem that the trustees of such high school district would have the authority to charge tuition for pupils non resident of that particular district. It should be borne in mind, however, that perhaps the high school district receives additional funds for the payment of teachers, based on the average daily attendance of those pupils who reside in districts outside of the high school district. In some A-5 cases that is a consideration whereby one district furnishes high school instruction for pupils non resident of the particular district. I do not know, in your case, whether the local authorities have agreed for that to be a consideration, or not. There is serious doubt in my mind that the high school referred to can charge tuition of non resident pupils where such pupils are counted in the average daily attendance of the high school and the high school receives State funds on account of their attendance, especially where there is no other agreement between the school districts involved. ELECTIONS; RETURNS OF MANAGERS-Where filed. December 1, 1939 Mrs. Elie Cochran Nichols Blue Ridge, Georgia Your letter of November 25th addressed to the Attorney General is answered by Marshall L. Allison Assistant Attorney General in the absence of Mr. Arnall from the office. You ask whether election managers should file election ballots after an election with the Ordinary or the Clerk of the Superior Court. I refer you to Section 34-3207 of the 1933 Georgia Code which reads as follows: "The returns of the managers, with the tally sheets, lists of voters, and ballots, together with all papers connected with said election, shall be filed in the office of the clerk of the superior court of the countyin which said election shall be held, within four days after the final declaration of the result thereof. One of the lists of the voters and one of the registration lists with names of those checked or marked as voters shall be exhibited by said clerk to anyone desiring to inspect same, but the other documents deposited as aforesaid shall be kept unopened and under seal until the next meeting of the grand jury, to which grand jury one registration list, one list of voters and the checked registration list above mentioned shall be exhibited; and if no action shall be taken thereon by the grand jury and no contest shall have been filed within the time prescribed by the authorities of said party, all of said election papers shall be destroyed. " MOTOR VEHICLES; MOTOR CARRIERS-Reciprocal agreements with other states; authority of Georgia Public Service Commission. TO: Hon. Walter R. McDonald, Chairman Georgia Public Service Commission FROM: Broadus B. Zellars and Marshall L. Allison Assistant Attorneys General In connection with the verbal request made April21, 1939, as to the authority of the Public Service Commission to negotiate and consummate reciprocal agreements with the proper authorities of other states whereby residents of such states operating common or contract motor carriers licensed in their respective states may be granted privilege and exemption of the operation of said motor vehicles as to what constitutes "on occasional trips and over irregular routes in this State", we respectfully submit the following: An Act approved February 12, 1938 known under the short title of "Reciprocal Agreements With Other States", (Ga. Laws 1937-38 Extra Session, pages 617-620) is entitled as follows: "An Act to provide for reciprocal agreements with other States as to privileges of operating motor vehicles over the highways of this State; to -6 provide the powers and duties of State agencies or departments in reference to the said reciprocal agreements; to provide an effective date for this Act; and for other purposes. " Section 1 of said Act authorizes the State Revenue Commission to negotiate and consummate reciprocal agreements with the proper authorities of other states. Section 2 of said Act provides that any such reciprocal agreement shall be subject to confirmation by Act or Resolution of the next General Assembly. Section 3 of said Act authorizes the Public Service Commission of Georgia to negotiate and consummate reciprocal agreements with the proper authorities of other states. Section 4 of said Act provides that any and all reciprocal agreements made by the Georgia Public Service Commission shall be subject to confirmation by Act or Resolution of the next General Assembly. Section 6 of the said Act provides that all reciprocal agreements entered into by the State Revenue Commission or the Georgia Public Service Commission while the General Assembly is not in session, shall be approved by the Governor. Said Section further provides that no reciprocal agreement shall be made or approved hereunder except that manifest advantage will accrue therefrom to the citizens of this State. In Sections 1 and 3 of said Act, the authority given to the State Revenue Commission and the Public Service Commission of Georgia, respectively, is stated in language that is almost identical except that in Section 3 it is provided that the Georgia Public Service Commission is authorized only to enter into reciprocal agreements insofar as the qualification, license and fees enforced, issued and collected by it are concerned. The identical language used in Sections 1 and 3 which is applicable to the questions herein discussed, reads as follows: "Whereby residents of such States operating common or contract motor carriers licensed in their respective States may be granted privilege and exemption of the operation of said motor vehicles on occasional trips and over irregular routes in this State as residents of this State may have and enjoy in the said other States in the operation of motor vehicles duly licensed in this State. " (Emphasis supplied.) Webster's New International Dictionary, page 1486, defines the word "occasional" as follows: "OCCASIONAL: Produced by accident; as, the occasional origin of a thing. Suitable or designed for or acting on, a special occasion or particular occasions; Acting as the occasion or contributory cause; Rare." Webster's New International Dictionary, page 1143, defines the word "irregular" as follows: "IRREGULAR: Not regular; not conforming to rule; not according to establishedlaw, method, or usage; Not according to common form; immethodical; erratic; not straight; not uniform;" It must be noticed that the conjunctive "and" is used between the words "occasional trips", "irregular routes''. Since this conjunctive is used both conditions must prevail in order to allow the motor vehicle the privilege of the reciprocal agreement. In other words, merely "occasional trips" alone would not bring the vehicle within the immunity of the reciprocal agreement. Nor would "over irregular routes" alone avail the vehicle of the reciprocal agreement. In our opinion we think the words ''on occasional trips and over irregular routes" limits the extent to which either the State Revenue Commission or the Public Service Commission can give immunity under a reciprocal agreement with the authorities of other states to vehicles mentioned in the said Act. If A-7 the vehicle operates over the highways of this State in any manner other than "on occasional trips and over irregular routes in this State", neither the State Revenue Commission nor the Public Service Commission of Georgia has any right to make a reciprocal agreement granting immunity to such vehicle from the payment of any State license or regulatory fees. It is not thought that the State Revenue Commission or the Georgia Public Commission will have any difficulty in determining what is meant by the term "over irregular routes." There may be some difficulty in determining what would constitute "on occasional trips". We respectfully refer you to the defini- tion of the word "occasional" given herein above. The State Revenue Com- mission and the Georgia Public Service Commission in conformity with their knowledge of the operation, custom, habits and practice of common or con- tract motor carriers should fix such definition of the term "on occasional trips" as may be reasonable and just. It is our opinion that the term "on occasional trips and over irregular routes in this State" should be specifically defined and incorporated in any reciprocal agreement made with the authorities of any other State. In defining "occasional trips" it appears that a certain number of trips of each vehicle made in a specific period of time must be one of the elements of the definition. We further believe that the definition should contain a specific num- ber of trips in a specific period of time of all vehicles owned by a single owner and/or operator. This agreement should apply only to common or contract motor carriers who are licensed in the State granting reciprocity of a like character as con- tained herein to common or cqntract motor carriers of the State of Georgia. We suggest that the following provision be incorporated in the agreement: The words "on occasional trips" shall mean not more than ______ trip per ------ of the same vehicle. Where an owner or operator owns or operates more than one vehicle not more than ______ trip per ______ of one vehicle shall be allowed each owner or operator. If such a provision is incorporated in the reciprocal agreement you will ob- serve that the Georgia Public Service Commission should be notified by the carriers who wish to take advantage of this agreement as to the trips they make into this State, giving the number and description of the vehicle and a copy of the notice should be retained by the driver of the vehicle so that he may exhibit the same to the inspector if and when accosted in the State of Georgia. MOTOR VEHICLES; MOTOR CARRIERS-Reciprocal agreements with other states; when carrier entitled to benefits. January 2, 1940 Hon. Matt L. McWhorter, Member Georgia Public Service Commission You have forwarded to the undersigned Assistant Attorneys General of Georgia assigned to the Georgia Public Service Commission and the Revenue Department of the State of Georgia, respectively, a letter and enclosures addressed to you under date of December 27, 1939, from Hon. R. R. McLaughlin, Director, Motor Vehicle Bureau of the State of North Carolina. His letter and the enclosed petition of Akers Motor Lines, Inc. of Gaston County, North Carolina, seeks the privilege of operating motor vehicles over the highways of the State of Georgia without being required to pay any license or permit fees, or in the event such cannot be allowed to pay license and permit fees upon the A-8 ratio mileage traveled by its equipment as between the States of North Carolina and Georgia. You desire an opinion as to whether or not under the Georgia laws and existing reciprocal agreements between the States of North Carolina and Georgia the application of the Akers Motor Lines, Inc., can be allowed. It appears from the petition of Akers Motor Lines, Inc., that it is a North Carolina corporation domesticated in the State of Georgia, having a place of business and terminal in the City of Atlanta. It further appears from the petition that its operation is over irregular routes as a common carrier in interstate commerce. The applicant discloses in its petition that ninety-five (95%) per cent. of its freight moving from points on the Atlantic Seaboard into the State of Georgia is transported on or in sealed vans which remain unbroken until delivery to consignee and therefore the Akers Motor Lines must send each and every one of its units into the State of Georgia. The applicant points out that it cannot assign a portion of its units to use Georgia highways and is unable to reduce its license and permit fees by that method. Under the certificate of authority granted the applicant by the Interstate Commerce Commission the applicant is given authority to engage in interstate and foreign commerce as a common carrier by motor vehicles of certain commodities over irregular routes between Gastonia, North Carolina, within 25 miles of Gastonia, on the one hand, and, on the other, Atlanta, Augusta, Savannah, Albany, Columbus, and Fort Benning, Georgia, and points and places in Georgia within 100 miles of Atlanta, M C 72442. Oct. 25, 1937. The General Assembly of Georgia under Georgia Laws 1937-38 Ex. Sess. pp. 617 et. seq. authorized the Revenue Department and the Public Service Commission to negotiate reciprocal agreements with other states "whereby residents of such states operating common or contract motor carriers licensed in their respective states may be granted privilege and exemption of the operation of said motor vehicles on occasional trips and over irregular routes in this State as residents of this State may have and enjoy in the said other states in the operation of motor vehicles duly licensed in this State. " (Emphasis supplied.) By the statute the authorities of the State of Georgia are limited as to reciprocal agreements as to motor vehicles on occasional trips and over irregular routes. The reciprocal agreements between Georgia and North Carolina follow the language of the statute. It is obvious that while the Akers Motor Lines, Inc., operate over irregular routes the trips of their equipment into Georgia is not occasional, but frequent. It is our opinion an admitted operation that is not occasional cannot come under the contemplation of the Georgia statute relating to reciprocal agreements. The plan suggested by the Akers Motor Lines, Inc. of the purchase of license and permit tags on the basis of the ratio between the mileage traveled by its equipment in Georgia and North Carolina not only would be beyond the authority of the aforesaid Georgia statute relating to reciprocal agreements, but it would also be unworkable in that motor trucks would be allowed to use the Georgia highways without any identification or opportunity of a mileage check by the Georgia authorities to determine whether the operating line was in fact conforming to the Georgia law. We are mindful of the desire on the part of the Georgia officials to be as liberal as possible in carrying out the reciprocal agreements. We also appreciate the difficulty which the Akers Motor Lines, Inc. in its method of operation finds itself in this instance in regard to licenses and permits. However our, careful investigation of the law compels us to reach the conclusion and it is our A-9 opinion that neither of the requests made by the Akers Motor Lines, Inc. for reciprocity can be granted. CC: Mr. E. T. Williams, Director , Motor Vehicle Division Department of Revenue State Capitol Atlanta, Georgia MOTOR VEHICLES; MOTOR CARRIERS-Weight limit of petroleum trucks. April 3, 1939 Ron. Perry T. Knight, Member Georgia Public Service Commission Recently you handed to me a letter addressed to the Georgia Public Service Commission from Messrs. Joselove and Berman, Attorneys at Law, Atlanta, Georgia, under date of March 21, 1939. Your correspondents ask that you give them the load limit for petroleum trucks operating on the highways in this State. Section 68-402 of the Georgia Code of 1933 sets forth the weight limit of vehicles operating on the highways of this State. Other than this Section I do not know of any limit relating to petroleum trucks. I am advised by an employee in the office of the Secretary of State that at the 1939 session of the General Assembly, Senate Bill No. 226 relating to load limit of petroleum trucks passed the Senate but did not pass the House of Representatives and did not become a law. I am enclosing an additional copy of this letter for your convenience in transmitting the same to Messrs. Joselove and Berman. MOTOR VEHICLES; MOTOR CARRIERS-Situs of ad valorem taxation of rolling stock. July 31, 1940 MEMORANDUM: TO: Ron. Matt McWhorter, Member Georgia Public Service Commission Marshall Allison Assistant Attorney General Re: Ad Valorem Taxation on Rolling Stock of Bus and Truck Com- panies You have referred a letter addressed to the Georgia Public Service Commis- sion from Ron. 0. W. Franklin, City Attorney, Valdosta, Georgia, under date of July 29, 1940. Mr. Franklin discusses the absence of any statute providing for ad valorem taxation on the rolling stock of bus and truck companies by which the municipalities and counties of this State would participate, similar to the statutes relating to the rolling stock of railroad companies. It is true that such provision does not appear among the statutes of this State. Persons, companies or corporations resident of this State who are engaged in the motor transportation business are subject to ad valorem taxation of their property, real or personal, under the general laws applicable to ad valorem taxation. The Georgia Public Service Commission is not charged with the ad- ministration and collection of ad valorem tax against motor contract car- A-10 riers or motor common carriers. For this reason, the Commission bas no very definite information as to whether or not such motor carriers properly return and pay the ad valorem tax it may be due in the county or municipality where the law requires the same to be paid. An interesting discussion of the status of taxation of the personal property of a paving contractor, consisting of machinery used in its business in the different parts of this State conducted from the office and the place of business of such contractor, will be found in the case of O'Neal, mayor, et al. v. Whitley, 177 Ga. 491-497. I suggest that you cite this case to Mr. Franklin for his consideration as to its applicability to a motor contract carrier or a motor common carrier wbo may be domiciled in this State. The General Assembly has fixed motor vehicle tag fees and registration fees against motor contract carriers and motor common carriers who may use the highways of this State, and these fees are collected by the Revenue Department and the Georgia Public Service Commission, respectively. Whether or not the rolling stock of bus and truck companies who may operate on the highways of this State should have to return their rolling stock under a similar method to that provided for railroad companies is a subject which properly addresses itself to the General Assembly. I am sure that the Georgia Public Service Commission will give to any member of the Legislature such information as it may have in connection with the subject. However, as pointed out above, it will finally rest with the General Assembly as to the action it may take on a change in the method of return and assessment of the property of bus and truck companies. . MOTOR VEHICLES; MOTOR CARRIERS-Vehicles transporting agricultural or dairy products exempt from motor carrier laws under certain conditions. November 8, 1940 MEMORANDUM: TO: Hon. Matt L. McWhorter Member, Georgia Public Service Commission FROM: Marshall L. Allison Assistant Attorney General SUBJECT: Inquiry from R. E. Parrish, rManager C. F. A. Peanut Asso- ciation, Camilla, Georgia under date of October 24, 1940, as to whether or not transportation of peanuts from ware- house to mill is exempt from the Motor Carrier Act of 1931. Powers granted to the Public Service Commission of Georgia are merely statutory. Georgia Public Service Commission vs. City of Albany, et al. -180 Ga. 355. The exemption of motor vehicles engaged exclusively in the transportation of agricultural products from the Motor Carrier Act of 1931 is found in Section 68-502 of the 1933 Georgia Code, which in part provides: "Motor vehicles engaged exclusively in the transportation of agricultural and/or dairy products between any of the following points: farm, market, gin, warehouse, or mill, where the weight of the load does not exceed 10, 000 pounds, whether such motor vehicle is owned by the owner or producer of such agricultural or dairy products or pot, so long as the title remains in the producer. " A-ll It will be noticed that for the exemption to apply the weight of the load must not exceed 10, 000 pounds, and the exemption remains only so long as the title remains in the producer. There is not enough information contained in the letter for it to be determined whether the operation involved is upon loads which exceed 10, 000 pounds, or whether the title remains in the producer until delivered at the final destination at the mill. It would depend upon the ascertainment of these facts as to whether or not the operation is exempt. As pointed out hereinabove, the powers of the Georgia Public Service Commission are all merely statutory and the Commission would have no power to exempt an operation which is not exempt by the statute itself. I would suggest that the information contained in the letter is insufficient for the Georgia Public Service Commission to declare that the suggested operation is exempt from the Motor Carrier Ac~ of 1931. I am returning to you herewith the letter addressed to you from Hon. Roy E. Parrish, Manager, GFA Peanut Association, Camilla, Georgia, under date of October 24, 1940. MOTOR VEHICLES; MOTOR CARRIERS-Fertilizer agent hauling fertilizer belonging to his principal for hire is subject to motor carrier laws. March 9, 1939 Hon. Matt L. McWhorter Vice-Chairman Georgia Public Service Commission You have verbally requested an opinion upon a question raised in a letter from Mr. R. L. Russell, Assistant Traffic Manager, International Agricultural Corporation, Atlanta, Georgia, addressed to you under date of March 7, 1939. That letter together with an attached form of agent's contract is the basis for the facts hereinafter set out. The manufacturer sells fertilizer to consumers through local agents. The manufacturer consigns the fertilizers to the local agent under a written contract. The local agent agrees to sell the fertilizers for the account of the manufacturer, on commission. The fertilizers are sqld either for cash or for promissory notes, signed by farmers and payable to the order of the manufacturer. The local agent guarantees prompt payment of all notes and accounts resulting from time sales made by him. The local agent agrees to sell all fertilizers consigned to him by the manufacturer under terms and at prices not less than those designated from time to time by the manufacturer and in force at the time the sale is made. The price fixed by the manufacturer is a delivered price at the point where the fertilizers are sold. Usually this price is uniform so that at the different points the price to the farmer is the same regardless of the place of delivery. The manufacturer has the practice of allowing a local agent a sum usually amounting to about twenty or twenty-five per cent less than the freight charge where the local agent takes his truck to the factory and hauls the fertilizers from the factory to the place the agent is located, although the price of fertilizers to the farmer may be the same at both the factory point and the point where the local agent is located. The question is: Where the local agent hauls fertilizers, under such circumstances, from the factory point to the place where the agent is located and A-12 where such local agent receives from the manufacturer, an allowance based on a mileage scale for such transaction to equalize the F. 0. B. factory price with the delivered price, is the local agent engaged in the business of transporting property for hire and thereby does he come within the regulation of "The Motor Carrier Act of 1931" as amended? A "motor carrier" is defined under Section 68-502 of the Georgia Code of 1933, and subsection (c) thereof reads as follows: "The term 'motor carrier' means every person except common carriers, owning, controlling, operating, or managing any motor-propelled vehicle (and the lessees, or trustees thereof, or receivers, appointed by any court whatsoever) used in the business of transporting persons or property for hire over any public highway in this State and not operated exclusively within the corporate limits of any city or town: Provided, that the term 'motor carrier' shall not include and this Chapter shall not apply to:" (Then follow certain exceptions of which it is only necessary to quote (2) thereof, which reads as follows: "Motor vehicles engaged exclusively in the transportation of agricultural andjor dairy products between any of the following points: farm, market, gin, warehouse, or mill, where th ~weight of the load does not exceed 10, 000 pounds, whether such motor vehic!e j,~ owned by the owner or producer of such agricultural or dairy pro0 1ctc or not, so long as the title remains in the producer. The word 'pror; 1cer' shall include a landlord where the relations of landlord and tenan: urlandlord and cropper are involved. The phrase 'agricultural products' shall include fruit, live stock, meats, fertilizer, wood, lumber, cotton, and naval stores, household goods and supplies transported to farms for farm purposes, and/or other usual farm and dairy supplies, and including products of grove and/or orchard, and also poultry and eggs, and also fish and oysters, and timber and/or logs being hauled by the owner thereof, or his agents and/or employees between forest and mill or primary place of manufacturers. Motor vehicles used by country merchants in rural districts who handle poultry and farm products, in pursuance of their own business, and not for hire. " Reduced to its simplest form it is only necessary to determine whether under such circumstances the local agent is engaged in transporting property for hire. A person may haul his own goods in his own truck from one point to another in this State without becoming a "motor carrier" under the definition contained in Section 68-502 of the Georgia Code of 1933. However, in the present case, the contract between the manufacturer and the local agent specifically provides that the fertilizers consigned to the local agent "shall at all times be and remain (the manufacturer's) property." Under the contract the fertilizers belong to the manufacturer until the time they are sold to the farmer. This is true whether the manufacturer ships the fertilizers to the agent by a third person or corporation as "carriers" to the point where the agent is located, or whether the agent in his own truck gets the fertilizer at the factory and transports the same to the point where he is located. The method or practice of the manufacturers of fertilizers is not to sell fertilizers at one point cheaper than another point. The allowance which may be made by the manufacturer to a local agent, based on a mileage scale, to equalize the F. 0. B. factory price with the delivered price is not a reduction in price of the fertilizers to the farmer. The allowance is not a reduction of the cost price of the fertilizers to the local agent because under the contract the local agent does not buy the fertilizers himself. He does not become the owner A-13 of the fertilizers or buy at one price and sell for another. The local agent by taking his truck to the factory point and transporting fertilizers from the factory to the point where the agent is located simply receives a compensation from the manufacturer in the nature of hire or freight for transpbrting goods which belong "at all times" to the manufacturer. It is my opinion that under the above circumstances the local agent is a "motor carrier" and is subject to regulation under "The Motor Carriers Act of 1931" as amended. MOTOR VEHICLES; MOTOR CARRIERS-Merchant hauling his own goods from broker's warehouse to retail store is not subject to motor carrier laws. AprillO, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission You have handed to me a letter from Mr. A. C. Schier, Chairman, Traffic Committee, Associated Grocery Manufacturers of America, Incorporated, 250 Park Avenue, New York City, addressed to you under date of March 17, 1939, to which there is attached a copy of a previous letter dated January 25, 1939. Mr. Schier points out in his letters that certain wholesale grocers or jobbers, who are customers of members of the Associated Grocery Manufacturers of America, Incorporated, desire to pick up certain merchandise purchased by such customers at manufacturing plants or warehouses and transport the same in customer owned trucks intrastate from the manufacturing plant or warehouse, located in the State of Georgia to the point in this State where the customer wholesale grocer or jobber is located. Under those circumstances, Mr. Schier desires to know if an allowance is made by the manufacturer to the customer, wholesale grocer upon the price of the merchandise equal to the freight between such manufacturing or warehouse point and the jobbing point in this State, does such allowance constitute the customer, who hauls his own goods in his own truck, a "motor carrier" within the meaning of the law such as would require the customer to obtain a certificate from the Public Service Commission of Georgia. You request an opinion upon the question presented in Mr. Schier's letters. Section 68-502 of the Code of Georgia of 1933, defines the term "motor carrier" in subsection (c) thereof as follows: "(c) The term 'motor carrier' means every person except common carriers, owning, controlling, operating, or managing any motor-propelled vehicle (and the lessees, or trustees thereof, or receivers, appointed by any court whatsoever) used in the business of transporting persons or property for hire over any public highway in this State and not operated exclusively within the corporate limits of any city or town. " (Emphasis supplied.) The portion of said definition particularly applicable to a determination of the instant question is emphasized above. A wholesale grocer or jobber who may own and use motor propelled vehicles in the conduct of his business is not primarily engaged in the business of transporting property although transporting his own merchandise may be an incident to the conduct of his wholesale or jobbing business. A wholesale grocer or jobber may legitimately use his own truck in transporting merchandise bought and owned by him from any point in this State to the point where such A-14 wholesaler or jobber is engaged in business, without changing the nature of his business from that of wholesaling or jobbing to transporting property. In order for one to come within the definition of a "motor carrier" of goods his motor propelled vehicle must be "used in the business of transporting property for hire". The element of hire necessarily contemplates that a "motor carrier" does not include everyone who hauls his own goods although a saving in the price of goods might result to the purchaser by reason of his purchase in one place rather than another and carriage of such goods might be involved. Otherwise, every person who purchased any articles at one place at a saving in price over that of another place could be held subject to qualify as a "motor carrier" where there was any carriage of goods. In my opinion, where a customer wholesaler or jobber, as an incident to his business of jobbing, buys merchandise, the title of which passes to such customer at the place it is loaded upon his truck, and transports the same from the manufacturing or warehouse point to the customer's place of business in his own truck or motor propelled vehicle, such does not constitute him a "motor carrier" or subject him to the "motor carriers Act of 1931", as amended, although the customer wholesaler or jobber may receive from the manufacturer an allowance in price of the merchandise equal to the freight charge between the two points. MOTOR VEHICLES; MOTOR CARRIERS-Carrier for hire between military reservation and outside points is subject to motor carrier laws. July 31, 1940 Hon. J. P. Skinner Director, Motor Carrier Division Georgia Public Service Commission ;r have your letter of July 29, 1940, to which you attach a communication addressed to Commissioner Matt L. McWhorter from Inspector J. Rufus Owens dated July 12, 1940. In his letter Mr. Owens states that the Highnote Transfer Company, of Columbus, Georgia, is engaged in hauling plaster board for hire from the depot at Cusseta, Georgia, to the United States military reservation near Columbus, Georgia. He further states that the Highnote Transfer Company is transporting these goods for the National Gypsum Company and that the latter company has a contract with the Federal Government. You ask an opinion as to whether or not, under these facts, the Highnote Transfer Company will be subject to regulation by the Georgia Public Service Commission. Under Code Sections 68-503 and 68-603 the Georgia Public Service Commission is vested with the power to regulate the business of motor contract carriers and motor common carriers, respectively. Except for the exemptions set out in Code Sections 68-502 and 68-602, all intra-state motor contract carriers and motor common carriers are subject to regulation by the Georgia Public Service Commission, and must have a certificate from said Commission before they can lawfully transport persons or property for hire, and must comply with the other provisions of the statutes and the rules and regulations of the Commission. It appears from the letter of Inspector Owens that he has gained the impression that the Highnote Transfer Company will claim exemption from regulation by the Georgia Public Service Commission upon the ground that it is transporting property for a firm which has a contract with the United States Government. His letter points out that the transportation is from a point with- A-15 out the Government reservation to a point within the Government reservation, although a State Highway is used for the transportation of this property both within and without the reservation. It is my opinion that such a claim of exemption from regulation by the Georgia Public Service Commiss~on would be without merit. In the case of Buckstaff Bath House Co. v. McKinley; decided by the Supreme Court of the Unfted States on December 18, 1939, and reported in 60 S. Ct. 97; 308 U. S. 508; 84 L. ed. 242, Mr. Justice Douglas, speaking for the Court, said: "The mere fact that a private corporation conducts its business under a contract with the United States does not make it an instrumentality of the latter. Fidelity & D. Co. v. Pennsylvania, 240 US 319, 60 L ed 664, 36 S Ct 298." The jurisdiction of the State over its highways and its police power over the same has been repeatedly upheld to the extent that a state may make a reasonable charge for the use of its highways, even against a motor contract carrier or motor common carrier who operates solely in interstate commerce but uses the highways of the State. I would ascertain from the Highnote Transfer Company its reasons for failure to comply with the statutes, rules and regulations relating to motor contract carriers or motor common carriers. If the facts revealed are the same as those stated in Mr. Owens' letter, that company is not exempt from the operation of the motor contract carrier or motor common carrier laws simply because it hauls property for the National Gypsum Company, which latter company has a contract with the Federal Government. If there is any other contention on the part of the Highnote Transfer Company why it is exempt, I have no knowledge of it at the present time, and my opinion does not cover any more than the one question heretofore raised. MOTOR VEHICLES; MOTOR CARRIER&-Licensed carrier unauthorized to lease vehicles to an unqualified carrier or others. November 7, 1940 Han. J. P. Skinner Director of Motor Carrier Division Georgia Public Service Commission I have your letter of November 4, to which you attached a letter addressed to the Commission under date of November 2, 1940, together with a purported lease agreement for motor vehicle equipment, executed between W. E. Currie, Jr. of Alamo, Georgia, as Lessor and Roy Richards of Carrollton, Georgia, as Lessee. You ask that I review the file and advise you whether or not the Georgia Public Service Commission has jurisdiction over such an operation, and, if so, does the contract meet all requirements of the law and regulations of the Commission. It appears from the file that the Lessor, W. E. Currie, Jr., is a qualified, licensed, class B carrier, but that the Lessee, Roy Richards, is neither a common or contract carrier nor is he licensed or qualified with the Commission. A similar question was recently before the Colorado Public Utilities Commission in a matter styled "Re Rules and Regulations Governing Motor Vehicle Carriers", decided March 3, 1938 and reported in 23 PUR (N S) , 527-528. In that case the Colorado Commission held: A-16 "Motor vehicle carriers of freight for hire should not lease pieces of equipment to persons, firms, or corporations, other than duly authorized carriers for hire. " In the opinion it was pointed out by the Colorado Commission: "This practice should not be allowed as it has a tendency to develop and permit unlawful operations, break down rate regulations, and constitutes a discrimination against a large portion of the shipping public and is generally misleading. " In the same order the Colorado Commission promulgated a rule or regulation to the effect that: "The leasing of motor vehicle equipment owned or operated by any motor vehicle carrier of freight to any person, firm, or corporation, other than duly authorized motor vehicle carriers for hire, either common or private, is prohibited, and the approval of the Commission heretofore given relative to all leases covering such equipment leased to persons who are not owners of certificates of public convenience and necessity, or private permits, should be and the same is hereby withdrawn. " Under the present law and regulations of the Georgia Commission governing motor contract carriers and motor common carriers there is no specific authority for a person, firm, or corporation, who is not a motor carrier for hire, to lease motor vehicle equipment for any operation such as the transporting of property for hire over any public highway in this State. On the other hand, Chapters 68-5 and 68-6 of the Georgia Code of 1933, containing the Motor Contract Carrier and Motor Common Carrier Laws. respectively, vests with the Georgia Public Service Commission the power to regulate the business of any person so engaged, and provides that no motor contract carrier or motor common carrier shall operate without first obtaining from the Commission a certificate of public convenience and necessity. The purported lease agreement is not authorized by Rule 25 (c) of the General Motor Carrier Rules and Regulations of the Georgia Public Service Commission. That rule reads as follows: "All vehicles leased by a motor carrier must have the name of the lessee and the number of the vehicle legibly printed on both sides before placed into use by the lessee. Such vehicles must be registered with the Commission and GPSC tags issued in the name of the lessee and insurance coverage filed in the name of the lessee. The vehicles may be driven or operated only by employees of the lessee. Copy of the lease agreement must be filed with the Commission before the vehicle is placed in use. Such lease agreement must also cover a specified length of time and show the rental paid for the use of the equipment. " The proposed lease between W. E. Currie, Jr. and Roy Richards does not conform to the provisions of the above rule. It will be noted that under the aforesaid Rule 25 (c) vehicles may only be leased by motor carriers. While I do not think that under the present law and rules and regulations of the Commission the proposed lease agreement is authorized or permitted, I would suggest it being brought to the attention of the Georgia Public Service Commission the need for the adoption of an amendment to the General Motor Carrier Rules and Regulations, which would eliminate any question such as the one raised in the aforesaid correspondence. For such amendment I would suggest the following language: A-17 "The leasing of motor vehicle equipment owned or operated by any motor contract carrier or motor common carrier to any person, firm, or corporation, other than a duly authorized motor contract carrier or motor common carrier for hire is prohibited." I am returning to you herewith the file in this matter. MOTOR VEHICLES; MOTOR CARRIERS-Inspector's power to lift purported agreement for lease of vehicle from suspected illegal operator. May 4, 1940 Ron. Matt L. McWhorter, Member Georgia Public Service Commission I have your letter of May 3rd in which you state that the business conducted by a certain U-Drive-It truck system is suspected of being a subterfuge to unlawfully avoid the Georgia laws regulating motor carriers and motor common carriers. You further state in that connection that one of your inspectors has intercepted on a highway of this State a purported lessee of aU-Drive-It truck system and that the inspector lifted from the driver of the truck a printed and typewritten paper purporting to be a memorandum of a lease agreement between the U-Drive-It system and the lessee. In that connection you state that the owner of the U-Drive-It system has become very much irritated and states that he will take the position that the drivers of the trucks hereafter will not submit to inspection of the trucks, manifest or cargoes. You desire to know whether or not the inspectors for the Georgia Public Service Commission are authorized by law to lift from the drivers of such trucks any papers relating to the purported lease or rental of the vehicles which are under suspicion of being operated in violation of the motor carrier or motor common carrier laws of Georgia. It was held in the case of Georgia Public Service Commission vs. City of Albany, et al. 180 Ga. 355 (1) : "The powers granted to the Public Service Commission are all merely statutory." The motor carrier Act of 1931 is codified under Chapter 68-5 of the 1933 Georgia Code. The motor common carrier Act of 1931 is codified under Chapter 68-6 of the 1933 Georgia Code. Under Code Sections 68-503 and 68-603, the Georgia Public Service Commission is vested with power to regulate the business of motor carriers and motor common carriers. Code Sections 68--502 (c) and 68-601 (e) define motor carriers and motor common carriers respectively, and an essential indicia of each is that they must transport persons or property for hire. In the case of Taylor vs. State, 44 Ga. Appeal, pp. 387-420, at pages 394-395, the Court said: " 'Public officers have not only the powers expressly conferred upon them by law, but they also possess by necessary implication such powers as are requisite to enable them to discharge the official duties devolved upon them. ' 23 Am. & Eng. Enc. Law (2d ed) , 364, 365. To the same effect is the following from 46 Corpus Juris, p. 1032: 'In addition to powers expressly conferred upon him by law, an officer has by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom. ' In the same volumn of Corpus Juris, p. 1935, this statement occurs: 'The duties of a public office include those lying fairly within its scope, those essential to the ac- A-18 complishment of the main purpose for which the office was created, and those which, although incidental and collateral, serve to promote the accomplishment of the principal purposes. ' See also Pennington v. Gammon, 67 Ga. 456; Garrison v. Perkins, 137 Ga. 744, 750, 751 (74 S. E. 541) ; Wright v. Floyd County, 1 Ga. App. 582 (58 S. E. 72) ; U. S. v. Birdsall, 233 U. S. 223 (34 Sup. Ct. 512, 58 L. ed. 930). " Code Sections 68-520 and 68-626 each provide as follows: "The Commission is hereby authorized to employ such persons as may be necessary, in the discretion of the Commission, for the proper enforcement of the provisions of this Chapter, the salaries of such employees to be fixed by the Commission. The traveling expenses of the Commission and its employees incurred in the performance of this Chapter shall be paid, as similar expenses of the Commission, out of the motor vehicle fund. " Code Sections 68-521 and 68-627 confer authority upon the Commission to promulgate safety rules relating to motor carriers and motor common carriers respectively. The preamble and order of the Georgia Public Service Commission promulgating motor carrier rules and regulations reads as follows: "By virtue of the authority vested and imposed in the Commission by the 'Motor Carrier Act of 1931' and the 'Motor Common Carriers Act of 1931' and other laws of the State of Georgia relative thereto, and in the exercise of the powers conferred thereby, it is ORDERED: That the following rules and regulations governing the supervision, control and operation of motor vehicle carriers transporting passengers and/or property, for hire, over the public highways of the State, as defined in said 'Motor Carrier Act of 1931' and said 'Motor Common Carriers Act of 1931' and other subsisting laws of the State of Georgia relative thereto, be and the same are hereby adopted and promulgated, effective on and after July 1, 1937, and until the further Order of the Commission." Rule 9 of said Motor Carrier Rules and Regulations reads as follows: "Commissioners and/or representatives of the Commission authorized to make inspections and to enforce these rules and regulations, will be provided with a card of identification signed by the Chairman and duly attested by the Secretary of the Commission. "Upon presentation of this card such representative has the right at any time to enter into or upon any motor vehicle being operated under the Acts and to which these rules apply, for the purpose of ascertaining whether or not the provisions of the law and these rules are being complied with. "Willful refusal of any motor carrier or operator thereof to stop or discontinue the use of any such motor vehicle until properly conditioned, when ordered to do so by any such representative or to permit such representative to enter into or upon the same for the purpose aforesaid, shall be sufficient grounds for the revocation of the Certificate under which said carrier is operating. Representatives shall report all irregularities under this Rule to the Commission. The Commission's jurisdiction under this Rule is extended to include motor carrier's stations, garages, offices and records." It will be observed from the foregoing that the jurisdiction of the Georgia Public Service Commission relating to motor vehicles using the highways of the State of Georgia is by statute confined to motor carriers or motor common carriers as defined in the statutes. Inspectors could have no more authority A-19 than the Commission. Rule 9 quoted hereinabove gives very broad powers to inspectors but states: "Such representative has the right at any time to enter into or upon any motor vehicle being operated under the Acts and to which these rules apply, for the purpose of ascertaining whether or not the provisions of the law and these rules are being complied with. " (Emphasis supplied.) The law and the rules both relate to motor carriers and motor common carriers. An owner or an operator of a vehicle may be a motor carrier or a motor common carrier, although he has never qualified or may not have any indicia on a vehicle indicating that it is a motor carrier or a motor common carrier vehicle. The jurisdiction of the Commission and the powers of the inspector would extend to such vehicles the same as if they had been qualified with the Commission and the same as if they had tags or other indicia indicating that they were so qualified. However, it is a question of fact in each case as to whether a vehicle operating on the highways of this State is a motor carrier or a motor common carrier within the definition of the law. A motor carrier or a motor common carrier qualified or unqualified using the highways of this State is subject to inspection by an inspector of the. Georgia Public Service Commission as to such things, among others, as ownership of the vehicle, manner of operation, manifest, cargo, and other matters relating to the manner of operation. On the other hand, since the jurisdiction of the Public Service Commission does not extend to a vehicle using the highways of this State which is owned or operated by an owner transporting the owner's own goods, neither the Commission nor an inspector for the Commission has the right to supervise such operation if such operation is in fact bona fide and does not come under the motor carrier or motor common carrier law. The bona fides of such operation is always a question of fact, and I think an inspector of the Commission, if there is a reasonable suspicion that the operator is not a bona fide private operation, would have the right to make a reasonable preliminary inspection as to whether or not the vehicle in operation was subject to the motor carrier or motor common carrier laws and the jurisdiction of the Commission. I do not find any case holding specifically how far the inspector could go under the authority of the Georgia laws, as it is a matter that is yet to be construed by our courts as to the extent of such inspection which can be made. In a case of this kind I think it is encumbent upon the inspectors to exercise sound judgment in each case upon its facts as to his demand upon the operator or driver to surrender invoices or manifest or other papers that may be carried by the driver relating to the operation of the cargo and vehicle. Where there is serious doubt that the vehicle or operation is a motor carrier or motor common carrier, I do not think the inspector should go so far as to lift the papers that may be carried by the driver. He should obtain a copy of any papers that may be exhibited to him by the driver or such other information as he can without compulsion upon the driver, operator or owner of the vehicle. Unfortunately, our law does not go as far as I think it should for a determination of whether a vehicle is operating in violation of the motor carrier or motor common carrier laws. Until our statutes are amended to give this direct authority, I think the inspectors should be careful in compelling information from drivers, operators or owners of vehicles on the highways, but the inspectors should obtain all information that they can without compulsion. A-20 It occurs to me that there may be a better and more practical way of obtaining information as to the operation of a U-Drive-It company than to rely on the reports of inspectors who may stop suspected vehicles. If the U-DriveIt system is not operating in violation of the motor carrier or motor common carrier laws, it should be anxious to cooperate with the Commission in the disclosure of its books and records and manner of operation. By this disclosure it can save itself of suspicion and avoid frequent stoppage of its leased vehicles on the highways. A member of the Commission or some executive representative of the Commission should request the U-Drive-It company to voluntarily furnish its books and records for inspection. If these books and records are open a survey should be made to determine whether or not the U-Drive-It company is subject to the motor carrier or motor common carrier law. If the survey reveals that the U-Drive-It company is not subject to said laws, the Commission should frankly advise the U-Drive-It company of that fact. On the other hand, if the U-Drive-It company refuses to divulge any information or to cooperate in an investigation and survey by the Commission, that, within itself, might furnish sufficient reason for the Commission to bring a suit to enjoin its operation and require production of the U-Drive-It Company's books and records in court to determine whether or not it is violating the motor carrier or motor common carrier laws. MOTOR VEHICLES; MOTOR CARRIERS-Ordinary's, Recorder's or City Court's jurisdiction to try traffic offenses arising from violation of safety rules of the Georgia Public Service Commission. November 15, 1939 Hon. A. 0. Randall, Secretary Georgia Public Service Commission This will acknowledge your letter of November lOth. You cite the amendment to Article 6, Section 6, of the Constitution of the State of Georgia ratified June 8, 1937, which gives jurisdiction to the Court of Ordinary in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offenses arising within their respective jurisdiction. (Acts 1937, p. 1117). An Enabling Act of the General Assembly of Georgia approved February 16, 1938, provides the manner and method of the exercise of jurisdiction by ordinaries, and judges of police and municipal courts in incorporated cities. (Acts 1937-38, Extra Session, pp. 558-562) . In behalf of the Commission you. ask an opinion as to whether or not ordinaries and judges of police courts and municipal courts under the provisions of the said Constitutional amendment and enabling act have jurisdiction of cases arising from a violation of traffic safety rules promulgated by the Georgia Public Service Commission under the Georgia Motor Carriers Acts of 1931 and under the Georgia Motor Common Carriers Acts of 1931. Sections 68-521 and 68-627 of the 1933 Code confer upon the Commission the authority to promulgate rules designed to promote safety as to motor contract carriers and motor common carriers. Sections 68-523 and 68-629 of the Code provide that such rules and orders so approved by the Commission shall have the same dignity and standing as if such orders were specifically provided in Chap- A-21 ters 68-5 and 68-6. Sections 68-9909 and 68-9911 of the Code provide that every officer, agent or employee of any corporation and every person who violates or fails to comply with the provisions of Chapters 68-5 and 68-6 relating to the regulation of contract carriers and motor common carriers, or any order, rule, or regulation of the Public Service Commission, or who procures, aids, or abets therein, shall be guilty of a misdemeanor. (Acts 1931, Extra Session, pp. 99-110; Acts 1931, pp. 199-208) . Under the aforesaid Constitutional amendment and enabling act giving the Court of Ordinary and the judges of police and municipal courts jurisdiction under certain conditions, the language used is as follows: "The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under that Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State in all counties of this State in which there is no city or municipal court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges, for offenses arising within their respective jurisdiction. " The words "other traffic laws of the State" as used in the said Constitutional amendment and enabling act are not as specific as they might be for an absolute determination of whether traffic rules and regulations come within the scope of the terms used. In view of the fact that the Public Service Commission has authority to make traffic safety rules for vehicles of motor contract carriers and motor common carriers coming under its jurisdiction and that such rules when so promulgated have the same dignity and standing as if they were specifically provided in these laws and a violation of such rules and regulations is made a misdemeanor by statute, it is my opinion that ordinaries and judges of police and municipal courts have jursidiction under the conditions provided in all misdemeanor cases arising under traffic safety regulations promulgated by the Georgia Public Service Commission for motor contract carriers and motor common carriers under the Commission's jurisdiction. MOTOR VEHICLES: MOTOR CARRIERS-Jurisdiction of Georgia Public Service Commission; indemnity bonds or indemnity insurance for interstate carriers. September 27, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission On September 1, 1939, you forwarded to me a file of correspondence between the Peerless Casualty Company of Keene, New Hampshire, and the Georgia Public Service Commission. It appears that the Peerless Casualty Company contends that under the law it can file with the Interstate Commerce Commission a bond on Form B. M. C. 37 executed by the motor common carrier as principal, and by the said company as surety for an interstate motor carrier operating through the State of Georgia, and the the same is sufficient if approved by the Treasury Department of the United States although the surety company may not be domiciled in the State of Georgia, and may not be authorized to do business in said State. The Peerless Casualty Company further contends that it is only required to file with the Georgia Public Service Commission a certified copy of such filing with the Interstate Commerce Commission for the interstate operation of such motor carrier through the State of Georgia A-22 insofar as the interstate carrier's bond is concerned. You have asked my opinion in the premises. The Georgia statutes relating to requirements of bond or indemnity insurance and the appointment of agent or attorney for service of suit as to motor carriers and motor common carriers are set forth in the 1933 Georgia Code, Sections 68-525 and 68-612 (Ga. Laws 1931, Extra Session, pp. 99, 113; Ga. Laws 1931, pp. 199, 203) 0 A state's right to prescribe regulations which promote public safety upon its highways, with respect to motor vehicles operated thereon in interstate commerce, is conditioned upon the absence of national legislation covering the subject. So, where there has been an enactment by Congress and promulgation of regulations thereunder concerning insurance requirements of interstate motor carriers, such supersedes and renders inoperative the power and authority of the State and public utilities commission to require the insurance company to be licensed to do business in the State as a condition precedent for granting of application for permit to operate in the State as an interstate motor carrier. University Overland Express, Inc. vs. Alsop, et al. Public Utilities Commission, 122 Conn. 275, 189, Atlantic 458. On August 3, 1936, the Interstate Commerce Commission adopted and promulgated rules and regulations concerning bonds and indemnity insurance of interstate motor carriers, which as amended read as follows: "RULE VI. Each certificate or policy of insurance or surety bond filed with the Commission for approval niust be for not less than the full limits of liability required under these rules and regulations; provided, however, that only corporations may qualify to act as surety. In each case in which the surety on any such bonds is a surety company, such company must be one approved by the United States Treasury Department under the laws of the United States and the applicable rules and regulations governing bonding companies. (Rule VI as amended, November 22, 1938)." "RULE VIII. Policies of insurance as amended by the endorsements provided by these rules covering bodily injury liability, property damage liability and cargo liability must be written by insurance companies legally authorized to transact business in each State in which their policies cover the operations of the insured motor carrier, except that more than one policy of insurance may be used in cases where, in the judgment of the Commission, the territorial operations of such carriers warrant separate coverage on separate portions of their routes or territories." The Interstate Commerce Commission avails itself of the facilities of the Surety Bond Section of the Treasury Department, which administers the federal Corporate Surety Act. The federal Corporate Surety Act, U. S. C. A. Title 6, Section 7, provides: "No such (surety) company shall do business under the provisions of Sections 6 to 13 of this Title beyond the limits of the State or territory under whose l.aws it was incorporated, . . . until it shall by a written power of attorney appoint some person residing within the jurisdiction of the court for the judicial district wherein such suretyship is to be undertaken, wh,o shall be a citizen of the State ... wherein such court is held, as its agent upon whom may be served all lawful process against such company, and who shall be authorized to enter an appearance in its behalf. A copy of such power of attorney, duly certified and authenticated, shall be filed with the A-23 Clerk of the District Court of the United States for such district at each place where a term of said Court is or may be held . . . " I am informed that the Interstate Commerce Commission requires that in cases where a surety company executes a bond as surety for an interstate motor carrier, such surety company must be licensed or have appointed a process agent in each State in which the bond is to cover the operations of the motor carrier under the federal Motor Carriers Act of 1935, as amended. See letter from Hon. W. Y. Blanning, Director, Interstate Commerce Commission, to Georgia Public Service Commission, dated September 22, 1939, a copy of which is attached hereto. In the case of Service Mutual Liability Insurance Company vs. United States et al, decided January 22, 1937, District Court Massachusetts, 18 Fed. Sup. 613, it was held: "Interstate Commerce Commission's rule that interstate motor carriers' bodily injury, property damage, and cargo liability insurance policies must be written by companies legally authorized to transact business in each state wherein policies cover insured carriers' operations held within general scope of commission's statutory power and not arbitrary or unreasonable. " Applying the above mentioned authorities to the instant questions it is my opinion that the federal Motor Carriers Act of 1935, as amended, and regulations of the Interstate Commission promulgated thereunder, are paramount to State statutes and State Public Service Commission regUlations insofar as requirements for bonds of interstate motor carriers are concerned. Therefore, an interstate motor carrier, not also engaged as an intrastate carrier in this State, is only reqUired to comply with the federal law, regulations of the Treasury Department and regulations of the Interstate Commerce Commission, in order to operate as an interstate motor carrier although such interstate operation may extend through this State. An intrastate motor carrier operating in this State is subject to the State statutes requiring such intrastate motor carrier to obtain a permit from the State Public Service Commission and carry liability insurance in a company authorized to do business in this State. (John J. McCarthy Co. vs. Alsop et al. , Public Utilities Commission, decided December 1, 1936, Supreme Court of Errors of Connecticut, 189 Atl. 464.) INTERSTATE COMMERCE COMMISSION BUREAU OF MOTOR CARRIERS WASHINGTON September 22, 1939 Refer to K- 710- 662337 Hon. Walter C. McDonald, Chairman Georgia Public Service Commission Atlanta, Georgia In reply to your letter of September 10, you are advised that Rules VI and VIII of the Commission's rules and regulations governing the filing and approval of surety bonds, policies of insurance, qualifications as a self-insurer, or other securities and agreements by motor carriers and brokers subject to the Motor Carrier Act, 1935, as indicated in your letter, are in effect at the present time. A-24 In connection with your inquiry as to the interpretation of the Commission's present rules requiring a casualty, indemnity, or surety company signing as surety and filing under Form BMC 37 for an interstate motor carrier to be a company legal~y authorized to transact business in each state in which said bond covers the operations of the bonded motor carrier, I wish to inform you that the Commission avails itself of the facilites of the Surety Bond Section of the Treasury Department, which administers the Corporate Surety Act, and regards surety companies as acceptable sureties if they have met the requirements of that Act and have been approved thereunder. Surety companies must be licensed or have appointed a process agent in each state in which the bond is to cover the operations of the motor carrier under the Act. For your further information in this matter, I am enclosing a copy of the rules and regulations under Section 215 of the Motor Carrier Act, 1935. Very truly yours, (SIGNED) W. Y. Blanning, Director Enclosure. MOTOR VEHICLES; MOTOR CARRIERS-Requirements of application for class "B" contract carrier. Aprill4, 1939 Hon. Walter R. McDonald, Chai~man Georgia Public Service Commission On February 22, 1939, you wrote me requesting an op1ruon upon certain questions in connection with applications of class "B" carriers. In that letter you suggested that two applications were then pending and that I should await the public hearing on the latter application before rendering my opinion. At the said hearing counsel for applicants were given additional time for filing maps and briefs and these have just recently been filed and considered. I deduce from the whole matter that my opinion is requested upon the following questions, to-wit: l. Are applicants for class "B" certificates required to show public convenience and necessity for the operation desired? 2. What things must the Public Service Commission consider in determining whether a certificate of public convenience and necessity shall be granted to applicants for class "B" certificates? 3. Are applicants for class "B" certificates required to set forth in their applications the territory to be served, the radius in miles within which he proposes to operate from his base point and enumerate the kind or classes of property he proposes to transport? In the beginning I desire to make it clear that the above questions ought not to be so definitely covered in an opinion by an attorney for the Public Service Commission as to in anywise encroach on the administrative prerogatives lawfully vested in the Commission and the members thereof. Questions of fact, policies, and matters of administration, within the bounds of the law, are purely for the members of the Commission to decide. Quite often questions arise where the line of demarcation between law and administration is very thin and shadowy so that I might unintentionally or unwittingly go farther in answering such questions than an attorney's opinion ought to go. If my answer to these questions or any other questions presented to me invades the field of administration, I desire that the members of the Commission ignore any part of my opinion that they may consider is in their province of administration. A-25 Sections 68-603, 68-604, 68-609 and 68-610 of the Code of Georgia of 1933 read as follows: "Section 68-603. The Commission is hereby vested with power to regulate the business of any person engaged in the transportation as a common carrier of persons or property, either or both, for hire, by motor vehicle on any public highway of this State. " "Section 68-604. No motor common carrier shall, except as hereinafter provided, operate without first obtaining from the Commission, after hearing under the provisions of this Chapter, a certificate of public convenience and necessity, pursuant to findings to the effect that the public interest requires such operation. " "Section 68-609. In determining whether such certificate of public convenience and necessity shall be granted, the Commission, among other things, must consider the following: (1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs. (2) The volume of existing traffic over such route, and whether such traffic and that reasonably to be anticipated in the future can support already existing transportation agencies and also the applicant. (3) Financial ability of the applicant to furnish adequate, continuous, and uninterrupted service for the year round; and to meet the financial obligations of the service which the carrier proposes to perform. (4) The effect, expense, and burden on the public highways, including bridges, and on the traffic, both private and common carrier, thereon. (5) The effect on existing transportation revenues and service of all kinds, and particularly whether the granting of such certificate will or may seriously impair essential existing public service." "Service 68-610. The Commission shall adopt rules prescribing the manner and form in which motor common carriers shall apply for certificates required by this section. Among the rules adopted there shall be rules as follows: That the application (a) shall be in writing, under oath; (b) shall contain full information concerning the applicant's financial condition, the equipment proposed to be used, including the size, weight, and capacity of each vehicle to be used, and other physical property of the applicant; (c) shall state the complete route or routes over which the applicant desires to operate, and (d) the proposed time schedule of the operation; (e) shall set forth all existing transportation in the territory proposed to be served, and wherein the public needs additional service, and why; and (f) any such other or additional information as the Commission may order or require. " Rules 2, 16 (c) and 8 (a), (b), (c) of the Georgia Public Service Commission read as follows: "Rule 2. Motor carriers operating under the motor carrier Acts will be classified as follows: Class "A"-Common carriers of passengers and/or property operating over a fixed route or between fixed termini in intrastate, or intrastate and interstate commerce, under Certificates of Public Convenience and Necessity. Class "B"-Common carriers of passengers and/or property operating over the highways of the State of Georgia but over no fixed route in intrastate, or intrastate and interstate commerce, under Certificate of Public Convenience and Necessity. Class "E"-Private carriers of passengers and/or property operating over the highways of the State of Georgia but over no fixed route, in intra- A-26 state or intrastate and interstate commerce, under Certificates of Public Convenience and Necessity. Class "G"-Motor carriers engaged solely in interstate commerce and operating under Section 30 of the Acts. " "Rule 16 (c) All applicants for Certificate of Public Convenience and Necessity to operate over no fixed route shall state in the application the territory to be served, the radius in miles within which he proposes to operate from his base point and enumerate the kind or classes of property he proposes to transport, or if passengers, state whether white, colored or both." "Rule 8. (a) Motor carriers operating under Class "B" Certificates must not, without the written consent and approval of the Commission first being obtained, receive property at a point located on a fixed route and destined to a point located on a fixed route, or where through or joint service is being operated between such points; but may receive property at a point not located on a fixed route and destined to a point not located on a fixed route and destined to a point on a fixed route; or may receive property at a point on a fixed route and destined to a point not on a fixed route. (b) Motor carriers operating under Class "B" Certificates of Public Convenience and Necessity are hereby authorized to transport a truck load of any one of the following commodities from one consignor to one consignee between any points within the State of Georgia, without regard to whether the point of origin or destination is served by a motor freight carrier operating over a fixed route: (Emphasis supplied.) (1) Household, kitchen, office furniture and store fixtures. (2) Raw or unmanufactured agricultural, horticultural and dairy products. (3) Livestock. (4) Live poUltry. (5) Naval stores. (6) Brick. (7) Iron pipe. (8) Sugar. (9) Concrete, metal, clay or terra cotta pipe. (10) Heavy machinery. (11) Structural steel, (12) Feed stuff. (13) Fertilizer bags. (14) Sand, gravel and crushed stone. (15) Grave vaults. (16) Crate materials. (17) Marble and granite. (18) Fertilizer. (19) Cement and lime. (20) Bottled soft drinks, return empty cases and bottles. (21) Insecticides and Spray materials. (22) Coal. (23) Carnivals. Motor carriers transporting property under Class "B" certificates of Public Convenience and Necessity shall be governed by sub-section (a) of this rule in the transportation of all merchandise or commodities other than enumerated above; except this shall not apply to strictly interstate movements." A-27 The laws regulating motor carriers and motor common carriers are of recent origin. Our State statutes on the subject were enacted in 1931 and the federal motor carrier act was enacted in 1935. Laws relating to motor carriers do not minutely deal with every detail likely to arise in this new field. The statutes give the authorities general administrative power and in many cases questions have to be determined which are not specifically covered by the law. It is my opinion, generally speaking, that administrative flexibility of the law should not be circumscribed, except in those instances where the statutes point out definitely and specifically the course to be pursued. From the above quoted Code Sections and rules of the Commission it is clear that motor common carriers can only obtain a certificate to operate, after public hearing pursuant to findings to the effect that public interest, convenience and necessity require such operation. Public convenience and necessity cannot be so rigidly defined as to make a hard and fast rule governing every case. Each case is usually surrounded by different facts and it is finally an administrative question to determine whether the particular operation is in the public interest, convenient and necessary. When the rules of the Georgia Public Service Commission were made and adopted the Commission deemed it necessary to provide for four different classes of carriers. Among the classifications there is provision for a class "B" carrier as above shown. Under the then existing needs of transportation I think the Georgia Public Service Commission acted within its power in making the classifications and rules promulgated. On the other hand, if changed conditions in the public interest, in the opinion of the Commission demand a change or modification of its rules such change or modification may be made by the Commission at any time in its discretion provided the same remain within the authority of the law. Section 68-609 of the Code quoted above sets forth what things must be considered by the Commission in determining whether certificates of public convenience shall be granted. It should be noted that in said section before listing the five subsections thereafter set forth it is provided: "the Commission, among other things, must consider" the aftermentioned things. (Emphasis supplied.) The use of the said emphasized words seems to show that while the legislature generally prescribed that the five listed things must be considered, the intention of the legislature was to reserve to the Commission the determination of public interest which the Commission could reasonably harmonize with needs of transportation. Rule 16 (c) quoted above requires a class "B" carrier to state in his application the territory to be served, the radius in miles within which he proposes to operate from his base point and enumerate the kind or classes of property he proposes to transport. I understand that heretofore Class "B" carriers have not always been required to set forth the full information required in Rule 16 (c). As long as this rule remains in force and unrevoked every application for a class "B" certificate should state the information required in that rule. Rule 8 (b) quoted above provides that a class "B" carrier is authorized to transport the 23 listed commodities "between any points within the State of Georgia. " (Emphasis supplied. ) It is my opinion that if the Commission should now or hereafter determine that it will not issue certificates to class "B" carriers permitting them to haul between any and all points in Georgia the Commission should first amend Rule 8 (b), especially by changing the language of the emphasized words. A-28 It is my further opinion that if the Commission should now or hereafter permit class "B" carriers to transport articles other than those named in Rule 8 (b) such part of said rule should be changed to agree with the articles permitted. It is my further opinion that if the Commission desires to limit the operation of class "B" carriers to a particular territory it may do so by change of the rules. The law does not specifically limit the operation of a class "B" carrier, but a reasonable rule or regulation of the Commission can effect such a purpose if the members of the Commission so determine. MOTOR VEHICLES; MOTOR CARRIERS-Fee for certificates, when due. Authority of Commission to refund fee. August 4, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission I have your letter of Aug. 4th in which you request an opinion upon the following questions, to-wit: 1. Where an applicant for a certificate of public convenience and necessity as a motor common carrier deposits with the Georgia Public Service Commission the $35. 00 fee at the time of making the application and the Commission orders the certificate to issue upon the applicant's compliance with all other provisions of the law such as giving bond or indemnity insurance, but where the applicant fails to qualify within 30 days or such other time as the Commission prescribes for qualifying, can the Commission refund the fee so deposited to the applicant where he has not violated a law or attempted to operate as a motor common carrier and where no certificate has actually been issued or delivered to the applicant? 2. Where an applicant for a certificate of public convenience and necessity as a motor common carrier is authorized by order of the Commission to have a certificate issued to him upon his compliance with qualifying provisions of the law but the applicant fails to qualify within the time allowed by the Commission, and the Commission has deemed the fee forfeited, can the Commission allow the same applicant to reinstate his application and qualify in the same matter without the payment of an additional fee? Section 68-622 of the 1933 Georgia Code which is codified from Section 17 of the Motor Carrier Act of 1931 (Ga. Laws 1931, Ex. Sess. pages 99-108) reads as follows: "A fee of $"35; 00 shall be charged for the issue of every certificate, and a fee of $7. 50 for the transfer of certificate, which shall be paid to the Commission when the Commission shall have approved the application for the certificate; and no certificate shall issue or be transferred, as the case may be, until the said fee shall have been paid. " (Emphasis supplied.) It will be noticed that the fee "shall be charged for the issue of every certificate . . . " While it is a desirable practice to require the applicant to deposit the fee at the time of making the application, it is my opinion that under the law above quoted, the fee is only charged and only accrues to the Commission or the State when the certificate is issued. It is my further opinion that if the operation is not one upon which a certificate could be issued under the law or where the operation has never commenced and no certificate has been issued to the applicant because of his non-compliance with qualifying provisions of the law, then, in my opinion, the Commission is authorized to refund such deposit A-29 to the applicant in such reasonable time and under such reasonable regulations as the Commission may prescribe. I understand that the Commission, under its present practice, now requires such an applicant to show that he has never operated or violated any law in connection with the motor carrier act when a refund is made on account of the above stated conditions. I think that is good practice. In connection with the second question, where the Commission has held the deposit made with it by an applicant for a certificate of public convenience and necessity as a motor common carrier but the Commission has never issued a certificate on account of any of the conditions above set forth, it is my opinion that the Commission may, in its discretion, allow the same applicant to reopen or renew his application without the payment of an additional fee. MOTOR VEHICLES; MOTOR CARRIERS-Municipalities prohibited from levying excise, license or occupation taxes against motor contract or motor common carriers. June 9, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission I have your letter of June 7, 1939, which in part reads as follows: "A question has arisen as to the right of the City of Augusta to regulate interstate carriers of passengers operating under the jurisdiction of this Commission and I would appreciate it if you would give me the benefit of of your opinion as to whether or not the city can interfere with such an operation." In the case of City of Albany et al. v. Ader; City of Albany et al. v. Henley 176 Ga. 391, the Supreme Court of Georgia held invalid an ordinance of the City of Albany providing for the regulation of motor carriers operating in and through the City of Albany; the routing of said motor carriers; the levying of a street-tax on such motor carriers, for the purpose of maintenance, repairs, and upkeep of the streets of the City Albany, because the said ordinance was repugnant to Section 18 of the motor common carrier Act approved August 27, 1931, (Ga. Laws 1931 p. 199 et seq.). Said Section 18 of the motor common carrier act of 1931 now codified as Section 68-623 of the 1933 Georgia Code, in part, reads as follows: "No subdivision of this State, including cities, municipalities, villages, townships, or counties shall levy any excise, license, or occupation tax of any nature on said equipment, or the right to operate said equipment or any incidents of said motor carrier business, or on a motor common carrier." In the cases of Mayor and Aldermen of the City of Savannah vs. Ellington Company, et al., 177 Ga. 149, and Ellington Company vs. City of Macon, 177 Ga. page 541, a private carrier for hire attacked ordinances of the City of Savannah and the City of Macon, respectively, requiring motor carriers to obey certain regulations of routing and street tax. In those cases the ordinances were held invalid also because of the fact that they were repugnant to Section 18 of the motor common carrier act of 1931, supra. In the case of Mayor and Aldermen of the City of Savannah vs. Ellington Company, supra, Chief Justice Russell quoted the opinion of Mr. Justice Beck in the case of City of Albany vs. Ader, as follows: "That the State, at least to the extent to which section18 of the motorcarriers act goes, has a right of control over streets and street traffic, there A-30 can be no doubt. It was a legitimate exercise of a part of the sovereign power of the State, and the municipal authorities must yield to the legislative power. Detailed regulations of the use of the streets of a municipality and many particular uses are left by the legislature to the municipal authorities, and the State laws are silent in regard to such regulations; but the inactivity of the legislature and its silence as to many of these matters does not mean that in the exercise of the sovereignty of the State it may not assume control of the streets of municipalities and the use to which they may be put. Touching many of the matters relating to streets, the legislature may be silent for a long time; but silence is not surrender of its power." Headnote 1 of the Case of Mayor and Aldermen of the City of Savannah v. Ellington et al., ;mpra, reads as follows: "The control of the State over the streets and highways of the entire commonwealth is paramount and supreme. Municipal ordinances which conflict with legislative enactments must yield to the superior authority of the State. Silence on the part of the State, while the State may concede for the time being to municipalities the control and regulation of the Streets and highways within the corporate limits of a municipality, is no bar to the exercise of the supreme authority whenever the State sees fit, by legislative enactment, to exercise authority and control." It seems settled that a municipality has no right to pass an ordinance of the type under consideration in the aforesaid three cases where the motor transport operator is properly under the jurisdiction of the Georgia Public Service Commission and holds certificate of public convenience and necessity from said Commission. I do not have information as to the language of any ordinance proposed or passed by the City of Augusta, and for that reason cannot say whether such an ordinance would be invalid for the same reasons held by the court in the above mentioned cases. The Georgia Public Service Commission has jurisdiction of a motor carrier of passengers for hire and a motor common carrier of passengers for hire engaged in the transportation on the public highways of this State. See Sections 68-502, 68-503, 68-601, and 68-603 of the 1933 Georgia Code. Those exempt from the operation of the motor carrier laws are set forth in Sections 68-502 and 68-602 of the 1933 Georgia Code. If a motor carrier of passengers for hire is properly under the jurisdiction of the Georgia Public Service Commission and is properly qualified with the Commission, it is my opinion a municipality cannot enforce an ordinance such as was under consideration in the three cases above cited. However, should a municipality endeavor to enforce such a municipal ordinance against such a carrier it would be a matter for the carrier to contest in the courts. PROFESSIONS; CHIROPRACTORS-Four year standard college course of nine months each prerequisite for eligibility. October 6, 1939 Han. E. D. Rivers Governor This will acknowledge receipt of your letter of September 26th in which you request an opinion as to whether the words, "Four year Standard College Course", as contained in the amendment approved March 23, 1939 (Georgia Laws, 1939, pp. 252-253), of an Act entitled "An Act to authorize and regulate A-31 the practice of Chiropractic in the State of Georgia, etc.", are interpreted to mean four years of nine months each, or four years of six months each. Section 1 of the said amendment of said Chiropractic Act, approved March 23, 1939, strikes the words, "course of three years of six months each", of Section 5 of the original Act, and substitutes in lieu thereof the following: "Four year Standard College Course". It cannot be determined from the language used in the body of said Act in Section 1 thereof whether "Four year Standard College Course" means four years of nine months each or four years of six months each, because there is nothing said in the body of the Act to indicate whether each year is to be one of a nine months course or one of a six months course. A rule of construction of statutes which has been long recognized in this State is that the title of an Act may be examined in aid of statutory construction if the meaning is doubtful. Rason v. Morrison, et al., 181 Ga. 322, 324; Comer v. State, 103 Ga. 69 (29 S. E. 501) ; Smith v. Evans, 125 Ga. 109 (53 S. E. 589) ; Standard Steel Works v. Williams, 155 Ga. 177, 182 (116 S. E. 636) ; Colquitt County v. Bahnsen, 162 Ga. 340, 348 (133 S. E. 871) . The caption or title of the Act approved March 23, 1939 (Georgia Laws, 1939, pp. 252-253), reads in part as follows: "An Act to amend an Act entitled 'An Act to authorize and regulate the practice of chiropractic in the State of Georgia, etc.', providing for four years of nine months each college course of study as a prerequisite of eligibility for examination to practice ... " It is very clear from the caption or title that the intention of the Legislature was to prescribe a four year Standard College Course to be four years of nine months each. This opinion is being written by Marshall L. Allison, Assistant Attorney General, in the absence of the Attorney General who is away from the City on a business trip. It was not intended to release the opinion until the Attorney General returned to his office and could pass upon the conclusion herein reached. However, in view of the information given me that the Board of Chiropractic Examiners will be in session today, I am sending you the within as my opinion. Applying the above stated rule of construction of statutes, I am compelled to reach the conclusion and it is my opinion that the words "Four Year Standard College Course", in the amendment approved March 23, 1939 (Georgia Laws 1939, pages 252-253) , mean four years of nine months of each of college study. PUBLIC DEFENSE; MILITIA-Special pay members exempt from jury service. May 22, 1940 Hon. Stewart Asbury Elberton, Georgia After you left the office on your recent trip to Atlanta, I reread the section of the Code relating to special pay members of militia companies, and it is my personal view that the law now provides for the situation you had in mind. I quote you Section 86-701 of the Georgia Code of 1933, which reads as follows: "Road duty, jury duty, and street tax. -Every officer and enlisted man of the organized military forces shall be exempt from road duty and street tax during the time of his service. Each company of the State military forces shall have the privilege of bearing upon its roll a class of membership, not A-32 to exceed 30in number, to be known and designated as 'special pay members,' who, upon paying a sum of money prescribed by said company, not less than $25 per annum, to said company, shall be exempt from jury duty, road duty and street tax, so long as membership is continued. Certificates of membership shall be prepared and signed by the company commander, and delivered to each of the special pay members of the company, and, when produced in any court. shall be evidence of the right of the holder thereof to the exemptions herein granted. (Acts 1916, p. 185. ) " PUBLIC SERVICE COMMISSION-Secretary's duties as custodian of books and papers. March 7, 1940 Ron. A. 0. Randall, Secretary Georgia Public Service Commission I have your letter of March 2nd in which you state that you have found several truck loads of old books, papers and files of the Commission which consist mainly of out of date tariffs, schedules, correspondence and records of public uti~ity corporations, some of which corporations have ceased to exist. You ask an opinion as to whether or not all these old papers should be retained or whether useless papers and records can be disposed of so as to permit the making of up-to-date files of essential and needed records. The only duty of the Secretary of the Georgia Public Service Commission in connection with care and custody of papers and records of the Commission that I have been able to find is Rule 7 of Rules and Regulations of the Board as to duties of commissioners and employees. The material portion of said Rule is as follows: "It shall be the duty of the Secretary to record all proceedings of the Board in the book of minutes. He shall be the custodian of all the books and papers of the Board, and shall systematically care for and preserve the same for ready reference and the correct transaction of the Board's business. " It is my opinion that the Georgia Public Service Commission in the performance of its administrative duties may determine whether or not there are any papers or records in its possession which are useless and so burdensome as to be unnecessary to preserve. If the Georgia Public Service Commission so determines it may by order duly passed and spread on the minutes generally describe such papers and records which it finds uselesg and ought to be destroyed. If and. when the Georgia Public Service Commission passes such an order and it is properly spread on the minutes, it is my opinion that the Secretary of the Georgia Public Service Commission would then be authorized to omit from his care and custody such papers so provided for under such order. PUBLIC SERVICE COMMISSION-Special fees levied against public service corporations for expenses of the Commission; power of General Assembly to divert-discussed. February 25, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission You have asked that I look into the law to determine the probable legal difficulties, if any, which would ensue if the Legislature diverted a portion of the special fees now assessed and collected from public service corporations A-33 or utilities, and such diverted portion of such fees were used for other purposes than the payment of salaries and expenses of the Public Service Commission. The payment of salaries and expenses of the Public Service Commission and its employees is provided for in Section 93-209 of the Code of GAorgia of 1933. The last sentence of this Section provides: "The funds assessed and collected as provided in Section 93-210 shall be specially designated as the Public Service Commission Fund and shall be expended only and exclusively as herein provided and directed. " (Emphasis suppl~ed. ) The assessment against public service corporations or utilities, subject to the jurisdiction of the Public Service Commission, necessary to produce a revenue of $70, 000. 00 per annum, or so much thereof as may be necessary, is provided for in Section 93-210 of the Code of Georgia of 1933. It is further provided in said Section: "such sum of $70,000.00, or so much thereof as may be necessary, is hereby appropriated and set aside for the purpose of paying the salaries, compensation, costs and expenses of the Public Service Commission, its members and employees, and the assistant Attorney General assigned to the Commission, and no other sum shall be appropriated therefor. " It will be noticed that under the present provisions of the law these special fees assessed against public service corporations or utilities are compensatory fees to cover the cost of State supervision and regulation. The Supreme Court of the United States in the recently decided case of Great Northern Railway Company vs. Washington, 300 U. S. 154, 81 L. ed. 573, passed upon many of the questions governing the principles under which these compensatory fees to cover the cost of State supervision and regulation could be levied and collected. I quote seven (7) headnotes from the decision of the above stated case as follows: "1. In the exercise of its police power a state may provide for the supervision and regulation of public utilities, may delegate the duty to an officer or commission, and may exact the reasonable cost of such supervision and regulation from the utilities concerned. " "2. The exaction from public utilities of the cost of state supervision and regulation may be allocated among members of the affected class without violating the rule of equality imposed by the Fourteenth Amendment. " "3. State supervision and regulation of the local structures and activities of a corporation engaged in interstate commerce, and the imposition of the reasonable expense thereof upon such corporation, are not a burden upon or regulation of interstate commerce in violation of the commerce clause of the Constitution. " "4. A law exhibiting the intent to impose upon public utilities a compensatory fee to cover the cost of state supervision and regulation is prima facie reasonable. " "5. If an exaction from a pubUc utility corporation engaged in interstate commerce, purporting to be for the purpose of covering the cost of state supervision and regulation, be so unreasonable and disproportionate to the service as to impugn the good faith of the law, it cannot stand either under the commerce clause or the Fourteenth Amendment." "6. A state in the exercise of its power to require public utilities to bear the cost of state supervision and regulation is not bound to assess the charge after the fact, but may, in anticipation, fix what the legislature deems to be a fair fee for the expected service, the presumption being that if, in practice, the sum charged appears inordinate, the legislative body will reduce it in the light of experience. " A-34 "7. A statute fair upon its face may be shown to be void and unenforce- able on account of its actual operation. " It must be recognized that there is a difference between a tax collected as a revenue producing medium and a special fee that is exacted to cover the cost of State supervision and regulation. The proceeds of the former tax may be spent for any legitimate governmental purpose that may be designated by the Legislature. The proceeds of the special fees stand upon an entirely different footing since such fees are exacted for the cost of State supervision and regula- tion. Serious questions could arise under the commerce clause and the Four- teenth Amendment of the Constitution of the United States if the Legislature should appropriate from the special fees exacted of public corporations and utilities for State supervision and control any part of such fees for purposes other than State supervision and regulation. If the Legislature were to divert the regulatory fees or any part thereof, for the support of other departments of the State government not engaged in the supervision and control of the public service corporations or utilities paying such fees, grave questions would not only arise as to the amount of the proceeds of such fees diverted, but there would also be the grave possibility of an attack upon the whole assessment made against the public service corporations or utilities for such fees. In other words, the whole levy and assessment against the public service corporations or utilities might be held up in court litigation and the Georgia Public Service Commission might stand to lose all the special fees levied for the salaries and expenses now provided by law. . I have refrained from giving a definite opinion that a diversion of any part of the regulatory fees for the support of other governmental functions would void the assessment for such fees for the reason that I do not know what the present Legislature may do upon this question. If the Legislature diverts any part of these special fees it would perhaps later become my duty to endeavor to sustain the legality of the assessment against public service corporations or utilities and I would not like to have an opinion outstanding, inconsistent with a position we might be forced to take. I hope the Legislature will give serious consideration to the grave consequences that might result in jeopardizing the collection of any regulatory fees if it should divert these special or regulatory fees for purposes other than the salaries and expenses for State supervision and regulation. PUBLIC SERVICE COMMISSION-Special fees cannot be collected from Ten- nessee Valley Authority. December 2. 1939 Honorable Walter R. McDonald, Chairman Georgia Public Service Commission This will acknowledge receipt of your letter of December 1st. You request an opinion as to whether or not the State Revenue Commissioner should fix an assessment against the Tennessee Valley Authority according to the value of its property in Georgia which was formerly owned by the Tennessee Electric and Power Company for a special fee for the purpose of paying the salaries, compen- sation, costs and expenses of the Georgia Public Service Commission for the year 1940. . Section 93-210 of the 1933 Georgia Code authorizes an assessment for a special fee for the maintenance of the Georgia Public Service Commission against "all A-35 public service corporations or utilities, subject to the jurisdiction of the Public Service Commission". In the case of Posey v. Tennessee Valley Authority, decided by the Circuit Court of Appeals, Fifth Circuit, December 10, 1937, 93 F. (2d) 726, 727, it was held: "The Tennessee Valley Authority is a corporation created by Act of Congress, 48 Stat. 58, section 1, 16 U. S. C. A. section 831, for the purpose of managing certain properties of the United States developed in consequence of the World War at Muscle Shoals, Ala., and of building further dams on the Tennessee river and its tributaries to improve navigation and control floods, and to dispose of surplus electricity generated thereby. There is no capital stock. The operations are paid for by appropriations from the Treasury of the United States. The lands acquired belong to the United States. The great functions of the Authority are governmental in nature and might have been performed directly by the officers of government. But a corporation consisting of three publicly appointed officials was created, and by section 4 (b) of the act, 16 U. S. C. A. section 831 c (b) , it was given power to sue and be sued in its corporate name. Notwithstanding the corporate entity and its subjection to sUit, the Authority is plainly a governmental agency of the United States, and except as Congress may otherwise consent, is free from state regulation or control. McCullough v. Maryland, 4 Wheat. 316, 4 L. Ed. 579. Johnson v. Maryland, 254 U. S. 51, 41 S. Ct. 16, 65 L. Ed. 126. It may be emphasized that it is not a corporation created under the generallaws of some state or territory, whose stock the United States happen to own, as was true of the Emergency Fleet Corporation, and the Panama Railroad Company. " See also: Ashwander et al v. Tennessee Valley Authority, et al 297 U. S. 288, 80 L. ed. 688. In view of the above it is my opinion that an assessment cannot be made against the Tennessee Valley Authority for a special fee for the maintenance of the Georgia Public Service Commission. PUBLIC SERVICE COMMISSION-Authority to approve municipal bonds as security for deposit. May 31, 1940 Hon. W. R. McDonald, Chairman Georgia Public Service Commission I have your letter of this date stating that the Commission at present carries its account in the Fulton National Bank of Atlanta. You state that through an understanding with that Bank it has deposited in escrow with the Citizens & Southern National Bank of Atlanta, for the benefit of the State and the Commission, ten (10) United States Treasury Bonds of $1, 000 each, due 19431945. You further state that you now have a request from the Fulton National Bank to substitute municipal bonds of the City of Augusta, 3!% bonds of $1, 000 each, due December 15, 1944, in lieu of the said United States Treasury Bonds. You ask an opinion as to whether the municipal bonds are acceptable as securities to secure the said deposit. Section 100-108 of the 1933 Georgia Code provides that State depositories shall give bond for State deposits or, in lieu thereof, the State depository may deposit bonds of the United States or of this State, or bonds of the counties or A-36 municipalities of this State, satisfactory to the State Treasurer. Inasmuch as the said Code Section provides for bonds of municipalities of this State in cases where they are State funds under the jurisdiction of the State Treasurer, I see no reason why municipal bonds of this State may not be approved by the Georgia Public Service Commission to secure a deposit of the Commission in a bank. Therefore it is my opinion that if the municipal bonds of the City of Augusta, Georgia, are acceptable to the Commission there is ample provision of the law for these bonds to be given to secure the deposit. The Commission should ascertain that the present market value of the City of Augusta bonds is sufficient in amount to cover the deposit secured. PUBLIC SERVICE COMMISSION-Western and Atlantic Railroad property deeds to right of way; approval as to form. August 23, 1940 Hon. Walter R. McDonald Chairman Georgia Public Service Commission Hon. A. 0. Randall, Secretary of the Commission, and Mr. Knowles Davis have presented to me deeds to five parcels of land adjacent to the Western & Atlantic Railroad at McCarty, Tennessee, in connection with the revision of line of the W&A at Mile Post A-128. 3 to 129. 5. The deeds to the property were taken in the name of State of Georgia, and are as follows: Ellen S. Poindexter et al Chas A. Noone and wife R. B. Cooke et al A. D. Adair & McCarty Bros. Inc. James A. Holdaway. I have been asked to review these deeds as to the execution thereof. It was suggested by Messrs. Randall and Davis that the deeds executed by individuals did not have " (Seal) " or " (L. S.) " after the signature of the grantors. It was also suggested that some of the deeds did not contain the full form: "Witness our hands and seals", having omitted the word "seal" immediately above the signature. It was also suggested that the deeds did not contain the usual form, to-wit: "Signed, sealed and delivered in the presence of", followed by the names of two witnesses (one of which is an official authorized to attest deeds for registration). The property conveyed in all the deeds is located in the State of Tennessee. Each and all of the deeds have a probate form in conformity with Section 7634 in Michie's Tennessee Code of 1938 Annotated, properly executed by a notary public in each case, .with the seal affixed. Under said Section 7634 of Michie's 1938 Tennessee Code Annotated, it is provided: "If the acknowledgment be made before a clerk or deputy of the County, or clerk and master, or notary public, or before any of the officers out of the State who are commissioned or accredited to act at the place where the acknowledgment is taken, and having an official seal, viz: those named in the two preceding sections (any officer out of the State but in the union, authorized by the laws there to take the proof of an acknowledgment of a deed by Section 7632), . . . such officer shall write upon or annex to the instrument the certificate (prescribed in said section) , in which he shall set forth his official capacity. " A-37 A note under Section 7634 of said Code reads: "This section prescribes a uniform rule for authentication of all in- struments required to be registered by our laws, irrespective of whether they were made and acknowledged or proved within or without the limits of this State (Tennessee). Bone v. Greenlee, 41 Tenn. (1 Caldw.) 28." Under Section 7646 of said Tennessee Code, a note reads: "It matters not, now, what is the law on the subject in the state where the probate of the deed is made, and the same need not be certified; it is sufficient, when the probate is made in another state, that it be done in a manner pursuant to our own laws, and so as to have been good if done here. McGuire v. Hay, 25 Tenn. (6 Hump.) 419. " In the case of C. & S. Bank v. Farr et al., 164 Ga. 880 (1) , the Supreme Court of Georgia, referring to a deed executed in Georgia, held: "A seal is not an essential reqUisite to a deed. Atlanta, Knoxville & c. Ry. Co. v. McKinney, 124 Ga. 929 (5) (53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. R. 215) ; Patterson v. Burns, 150 Ga. 198 (103 S. E. 241) ; Bank of Manchester v. Birmingham Trust & c. Co., 156 Ga. 486 (3) (119 S. E. 603) . 'No prescribed form is essential to the validity of a deed to lands or personalty. If sufficient in itself to make known the transaction between the parties, no want of form will invalidate it. ' Civil Code (1910) , Sec. 4182. " Each of the deeds appears by a certificate of the Registrar of Hamilton County, Tennessee, to have been recorded. Thus Section 7625 of Michie's Tennessee Code of 1938 Annotated, reqUiring registration of conveyances in the county where the land lies, appears to have been complied with. PUBLIC SERVICE COMMISSION-Telegraph company cannot by rule deprive sender of message of his right to recover nominal damages, if any sustained. January 25, 1940 Honorable Walter R. McDonald, Chairman Georgia Public Service Commission Recently the Commission forwarded to me through Mr. Knowles Davis a letter from Mr. J. B. Cheatham, District Manager, Western Union Telegraph Company, Atlanta, Georgia, addressed to the Commission under date of December 22, 1939. The Western Union proposed to file with the Commission for inclusion in its Tariff Book No. 72, dated October 1, 1937, and effective November 10, 1937, a supplement amending sub-paragraph 2 of paragraph (a) of Rule 1 on Page 1, entitled 'Domestic Telegraph Service-Rules and Regulations of the Western Union Telegraph Company Tariff Book 1937'. Briefly, the amendment proposes changes in certain clauses by the words which are emphasized: "beyond the actual loss not exceeding in any event the sum of five thousand dollars, at which amount (each message is deemed to be valued) the sender of each message represents that the message is valued." (Words in parenthesis omitted) . My opinion has been requested as to whether or not the Commission can lawfully approve the proposed amendment of said rule and regulation for filing. On January 16, 1940, I wrote Mr. J. B. Cheatham, District Manager, Western Union Telegraph Company, Atlanta, Georgia, stating that I had his letter and request under consideration and that my first impression was that the proposed amendment was an attempt to prohibit a recovery of nominal damages against the telegraph company for negligence. A copy of that letter is inclosed herewith. A-38 I invited Mr. Cheatham to give me his further views in order that I might not misconstrue the purpose of the proposed amendment. At this time I have not received any communication from him. My further study of the matter leads me to the conclusion that the proposed amendment if approved by the Commission for filing would probably have the effect of al~owing the telegraph company to contend against liability for mistakes or delays in the transmission or delivery, or for non-delivery, whether caused by the negligence of its servants or otherwise beyond the actual loss. This might lead to the incidental contention that the telegraph company could not be held liable for nominal damages. The recent case of Western Union Telegraph Company v. King, decided by the Georgia Court of Appeal.s, December 20, 1939, points out that the Georgia rule recognizes recovery of nominal damages in at least two classes of cases, to wit: 1st: Where there is proof that a duty has been breached or a right invaded, but where the evidence fails to show the plaintiff sustained any actual loss. 2nd: Where it is shown that a duty has been breached and this has been followed by an actual loss, but where under the evidence presented compensatory damages, are not, or cannot be properly established. It is my opinion that the proposed amendment would, if it has the effect of prohibiting nominal damages in any event, be contrary to the rule laid down by the courts of this State, and if such rule is upheld, would restrict the rights of a sender of a message. I suggest that the application of the Western Union Telegraph Company to file the proposed amendment of its rule and regulation be set down for a hearing and that it be notified in ample time thereof so that the Commission may pass upon the matter after giving the applicant an opportunity to be heard. PUBLIC SERVICE COMMISSION-Telegraph company required to render reasonable service to the public. April 20, 1939 Hon. Jud P. Wilhoit, Commissioner Georgia Public Service Commission I have your letter of April 13th in which you ask an opinion upon the following questions; "Where a telegraph company is rendering service to the public in a community, town, or city, under the provisions of the law whereby the Public Service Commission is vested with the authority to require reasonable service to the public, is the telegraph company required to obtain permission of the Public Service Commission when it desires to change the location of its office within the business section of the community, town, or city, and substitute a teletype machine for Morse Code operation?" Section 93-305 of the 1933 Code of Georgia reads as follows: "All companies or persons owning, controlling, or operating a line or lines of express or telegraph, which are in whole or in part in this State, shall be under the control of the Public Service Commission which shall have full power to regulate the prices to be charged by any company or persons owning, controlling, or operating any such line or lines, for any service performed by such company or persons, and all the powers given to said Commission over railroads in this State, and all the penalties prescribed against railroad companies or persons operating railroads, are hereby declared to A-39 be of force against corporations, companies, or a person or persons owning, controlling, or operating a line or lines of express or telegraph, doing business in this State, whose line or lines is or are, wholly or in part, in this State, so far as said provisions can be made applicable thereto..The said Commission shall also have power and authority to require said companies to locate agencies at railroad stations. (Emphasis supplied.) A portion of Section 93-307 of the 1933 Code of Georgia dealing with the jurisdiction of the Commission reads as follows: "The Georgia 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, telephone and telegraph corporations or companies within this State, gas or electric light and power companies within this State; and while it may hear complaints, yet the Commission is authorized to perform the duties imposed upon it of its own initiative, and to require all co=on 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, and to require such publication by common carriers, in newspapers of towns through which their lines extend, of their sch9dules as may be reasonable and which the public convenience demands. (Emphasis supplied.) Rule 2 of the rules governing the erection and location of railroad, express and telegraph depots, stations, agencies and offices, promulgated by the Georgia Public Service Commission and found on page 157 of the 60th Report o! the Commission, reads as follows: "Each and every depot, station, office and agency, now maintained, conducted or used in Georgia by any railroad, express or telegraph company doing business in this State, for the transaction of business with the public, is hereby formally established and located at the point and on the premises where the same is now being so maintained and conducted. No such depot, station, office or agency, as aforesaid, now established, or that hereafter may be established, pursuant to orders made by the Commission, or vountarily by such company, or otherwise, shall be closed, removed, suspended, discontinued or abolished, without authority granted by the Commission upon written application. " In view of the above quoted rule of the Commission, I am of the opinion that where a telegraph company has an office in a community, town or city, such company can not remove its office from the premises where the same is now being so maintained or conducted without authority granted by the Commission upon written application. In connection with the second portion of your question, that is, whether or not a telegraph company can substitute a teletype machine for Morse Code operation without permission of the Public Service Commission, I do not find any specific statute or rule of the Commission dealing with this question. It seems clear that under the law the authority of the Commission is to require telegraph companies 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. It seems to me that if a telegraph company elects to substitute a teletype machine for Morse Code operation, such a matter is a managerial prerogative of the telegraph company and the telegraph company need A-40 not make application to the Public Service Commission when it elects to substitute a teletype machine for Morse Code operation. It is my opinion that it is not within the province of the Public Service Commission to deal with the mechanics the telegraph company may elect in the performance of its services, but the Public Service Commission can only require a telegraph company to establish and maintain reasonable service. It is my further opinion that where a telegraph company elects to substitute a teletype machine for Morse Code operation, the Public Service Commission cannot interfere with such choice of method of operation so long as the service is reasonable. PUBLIC SERVICE COMMISSION-Railroad requirement for deposit by employee for switch key is not a matter within the jurisdiction of the Commission. April 3, 1940 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission On March 26th you submitted a memorandum to me with request for my comment upon an attached letter to you from Hon. J. Paul Stephens, Attorney at Law, Augusta, Georgia, dated March 21, 1940. Mr. Stephens in his letter desired to know if there was any law in this State which would require a railroad company to pay interest on a deposit of $2. 50 required of employees for switch keys furnished by the railroad to the employees. The powers granted to the Public Service Commission of Georgia are all merely statutory. Georgia Public Service Commission vs. City of Albany, et al. 180 Ga. 355 (1) . I do not find under any statutes relating to the powers and duties of the Georgia Public Service Commission generally or to their powers over railroad companies which would give the Georgia Public Service Commission any jurisdiction in regard to the matter submitted. It is true that electric utilities which require deposits of customers pay interest on such deposits. That situation is not analogous to the question presented in the instant matter. If a railroad company requires a deposit of its employees for switch keys furnished them the managerial prerogative of the railroad company and the contractual relation between employer and employees exists and there is not such a public interest in the latter case as where a utility requires a deposit of the consuming public. In my opinion, the Georgia Public Service Commission has no power or jurisdiction as to matters which are managerial and contractual questions between a railroad company and employee. Therefore, it is my opinion that the Georgia Public Service Commission has no power or jurisdiction to require railroad companies to pay interest on deposits made by employees for switch keys. I am returning to you herewith the letter from Mr. Stephens to you dated March 21, 1940. PUBLIC SERVICE COMMISSION-Railroad cannot discriminate against applicant for spur track facilities. May 29, 1939 Honorable W. R. McDonald, Chairman Georgia Public Service Commission This will acknowledge the letter dated May 25, 1939, over the signature of Honorable A. J. Young, Rate Expert for the Commission. There is attached to A-41 his letter a copy of a letter from Mr. J. Hugh Rogers, Atlanta, Georgia, attorney at law for Mr. Samuel A. Uram, addressed to the Commission under date of May 10, 1939, together with a memorandum and sketch prepared by Mr. Young. It is stated by Mr. Rogers that his client Uram has contracted with one Martin to buy a strip of land in Atlanta situated near the A. & W. P. Railroad side track, between the Johnson Coal Company and the Horn Coal Company, but said Uram cannot obtain the use or benefit of said side track because of a contract or lease between the Johnson Coal Company and the A. & W. P. Railroad, whereby the strip of land on the railroad right of way between Martin's land and the railroad spur track is now leased to Johnson Coal Company. Mr. Rogers also states that his client Uram has been unable to obtain a lease from the railroad company of the said strip of land on the railroad's right of way because the railroad takes the position that it cannot break its lease with the Johnson Coal Company in order to accommodate Uram, a competitor of Johnson Coal Company. Mr. Rogers further states that he "understands" the Johnson Coal Company does not use the strip of land on the railroad right of way which adjoins the land of Martin, and that the Johnson Coal Company does not pay any additional consideration to the railroad for the use of the strip of land between the railroad spur track and the land of Martin. Mr. Rogers further states that the land which his client Uram has contracted to buy from Martin was last used by the Withers Coal Company, who had the benefit and use of said strip of land adjoining said spur track or siding. Mr. Rogers further states that under Section 93-308 of the 1933 Georgia Code the Georgia Public Service Commission has jurisdiction to pass an order requiring the A. & W. P. Railroad to allow his client Uram the privilege of using said side track in his proposed coal business, and he requests the Commission to set this matter down for a hearing at the Commission's earliest convenience. Mr. Young states that the matter was discussed by the Commission at its Executive Session on May 23, 1939, and the Commission voted to request my opinion as to whether or not the Commission's jurisdiction would enable it to act in this matter. The applicable portion of Code Section 93-308 referred to in Mr. Rogers' letter reads as follows: "The Public Service Commission shall have power and authority . . . to prescribe rules with reference to spurtracks and side tracks, with reference to their use and construction, removal, or change, with full power to compel service to be furnished to manufacturing plants, warehouses, and similar places of business along the line of railroads where practicable and where in the judgment of the Commission the business is sufficient to justify the same . . . " In the matter of the Atlanta Oil & Fertilizer Company v. Central of Georgia Railway Company, No. 9052, filed October 7, 1909, the Georgia Railroad Commission in its 1909 Annual Report p. 294, following an opinion of Honorable James K. Hines, then Special Attorney to the Commission, reported in the said 1909 Annual Report pages 109 and 110, held: "The Commission was without authority to require railroad companies to lease space on their rights of way, or to require the furnishing of facilities desired by complainants. " The issue in that matter was a refusal by the railroad to rent the Atlanta Oil & Fertilizer space on the railroad's right of way at Sunnyside, Georgia, for the purpose of erecting a cotton seed and fertilizer house. A copy of the said opinion of the late Judge Hines is attached hereto for your information. A-42 The Nebraska State Railway Commission recently had before it a somewhat similar question, and on September 24, 1933, in the matter of L. W. Johnson et al v. Union Pacific Railroad Company, reported in 12 Public Utility Reports, New Series, pp. 134-137, the said Commission by a majority decision held: "Leases, Section 11-Site on railroad-Rights of company. 1. A railroad company has the right to lease or refuse to lease a site on its right of way so long as it does not discriminate, p. 135. Leases, Section 7-Jurisdiction of Commission-Site on railroad right of way. 2. The Commission has no jurisdiction to decide between contenders who seek to lease a site upon a railroad right of way, its only authority in the premises being to see that all parties are treated with equal consideration, p. 135. Discrimination, Section 218-Service-Site on railroad right of way. 3. A railroad company is not guilty of unjust discrimination prohibited by statute in refusing to lease a site on its right of way to a company which has purchased the stock and eqUipment of a lessee under a lease prohibiting the sale or transfer of the lease without the consent of the railroad company, if the railroad company does not deny another suitable site, p. 135. " In a vigorous dissenting opinion Commissioner Bollen, of the Nebraska State Railway Commission said: "I am unable to concur with majority on the final order. I can reach no conclusion other than the facts present a plain case of discrimination prohibited by statute and which this Commission has jurisdiction to prevent." For the information of the Commission I attach hereto a copy of the decision of Commissioner Maupin, the concurring opinion of Chairman Drake, and the dissenting opinion of Commissioner Bollen. There can be no doubt that the Georgia Public Service Commission has the power under a proper set of facts shown to prevent a railroad from practicing discrimination as between competitors seeking lease privileges on the railroad's right of way under equal rights. Whether or not there is a discrimination requires an examination of the full facts surrounding the matter. Among the questions which should be determined on the facts, are: 1. Was the lease to Johnson Coal Company of the strip of land in question at a time when there was no other applicant? 2. Was the lease between the railroad and Johnson Coal Company of the strip of land in question to supply the reasonable need of the Johnson Coal Company for its business or was it to prevent a competitor coal company from obtaining equal spur track facilities? 3. Does the railroad offer to Uram ample track facilities elsewhere which may be conveniently used by him or any other company desiring to load or unload freight thereon? I think the above questions and any others necessary in the judgment of the Commission should be determined by the members of the Commission as a matter of fact before the question of law can be aptly applied in this matter. Therefore, I suggest that a hearing be ordered and that the complainant, Uram, and the defendant railroad be required to appear before the Commission for a full presentation of the facts. After such hearing if there remains any question of law on the facts as made I shall be glad to advise you. A-43 PUBLIC SERVICE COMMISSION-Railroad's actual freight rate may be prescribed by the Commission; not limited to prescribing maximum rates. May 27, 1939 Hon. Jud P. Wilhoit, Member Georgia Public Service Commission I have your letter of recent date in which you state that you are authorized by the Georgia Public Service Commission to ask for an opinion as to whether or not said Commission has the power to fix an actual rate to be prescribed for railroads, trucks and busses. In your l.etter you call my attention to an opinion rendered by Hon. James K. Hines, Special Attorney for said Commission on May 3, 1910. You ask whether or not I agree with the opinion of the late Judge Hines. You also ask whether there have been any changes in the Constitution or laws of this State which would demand a different conclusion from that reached by him, and if so, to what extent. Brieqy, the opinion of Special Attorney Hines rendered to the Chairman of the Railroad Commission of Georgia, under date of May 3, 1910, stated: "The power of the General Assembly 'to prohibit said roads from charging other than just and reasonable rates, and enforce the same by adequate penalties' might authorize the Legislature to prescribe an actual rate, so far as the Constitution of this State is concerned . . . The reasonable and just rate is secured by a reasonable and just maximum rate, above which the company cannot go . . . If the Commission can fix actual rates, below which common carriers cannot go, this action would effectually wipe out all competition between carriers. The publ,ic could never get less than the actual rate fixed, and in this way, all benefits arising from competition, would cease. Before the Commission would be authorized to exercise any such power it ought certainly to be clearly conferred by an Act of the Legislature. It certainly cannot exercise any such implied power under its power to fix reasonable and just rates, to be observed by the railways of this State . . . I am of the opinion that the Commission cannot fix the actual rate. " The power conferred by the Constitution upon the General Assembly to regulate railroad freights and passenger tariffs is found in Article 4, Section 2, Paragraph 1, of the Constitution of the State of Georgia, codified as Section 22501 of the Code of Georgia of 1933. In construing that provision of the Constitution the Supreme Court of Georgia, in the case of Georgia Railroad et al. v. Smith et al., Railroad Commissioners et al., 70 Ga. 694 (1) held: "The object of the constitutionalprovision conferring power upon the legislature to regulate railroad freight and passenger tariffs, to prevent unjust discrimination and require reasonable and just freight and tariffs, and making it the duty of the 1egislature to pass laws in furtherance of this provision, was to give proper protection to the citizens against unjust rates for the transportation of freight and passengers over the railroads of the State, and to prevent unjust discrimination, even though the rates might be just." The statutory grant by the General Assembly of Georgia to the Georgia Railroad Commission, inuring to the later constituted Georgia Public Service Commission, of power to make rates, codified from Georgia Laws 1878-9 page 125, now incorporated in Section 93-309 of the 1933 Georgia Code, in part reads as follows: "The power to determine what are just and reasonable rates and charges is vested in the Public Service Commission; and the Commission shall make reasonable and just rates for freight and passenger tariffs, to be observed A-44 by all railroad companies doing business in this State, on the railroads thereof;. . . " Under section 93-411 of the 1933 Georgia Code it is made illegal for a railroad company to make discrimination in its rates or tariffs of freight. In the case of Georgia Public Service Commission v. City of Albany, 180 Ga. 355 (1) it was held: "The powers granted to the Public Service Commission of Georgia are all merely statutory. Art. 4, Sec. 2, Par. 1 of the Constitution of 1877, with reference to the Railroad Commission of Georgia, has no reference other than to railroads. The duties of the present Public Service Commission were enlarged in 1907 and 1922, so as to include public utility corporations, by 1egislative enactment. " The statutes regul,ating motor contract carriers and motor common carriers were enacted in the year 1931 (Ga. Laws 1931, Ex. Sess. p. 99 et. seq. ; Ga. Laws 1931 p. 199 et. seq.) These laws are now codified under chapters 68-5 and 68-6 of the 1933 Georgia Code. It is provided in Section 68-510 of the 1933 Georgia Code that: "no such private or contract carrier shall contract to carry at a greater or less rate than prescribed by the Commission, and all such contracts are hereby declared unlawful." Code Sections 68-510 and 68-613, relating to motor contract carriers and motor common carriers respectively provide: "The Commission shall prescribe just and reasonable rates, fares, and charges for transportation by ... carriers of passengers, baggage and property, and for all services rendered by ... carriers in connection therewith, and the tariffs therefor shall be in such form, and shall be filed and published in such manner and on such notice as the Commission may prescribe, and shall be subject to change on such notice and in such manner as the Commission may prescribe . . . " Code Sections 68-511 and 68-614, also relating to motor contract carriers and motor common carriers, respectively, provide: "No ... carrier shall charge, demand, collect or receive a greater or less or different compensation for the transportation of passengers and property or for any service rendered in connection therewith than the rates, fares and charges prescribed or approved by order of the Commission; nor shall any ... carrier unjustly discriminate against any person in its rates, fares or charges for service, ... " A rule of the Georgia Public Service Commission relating to common carriers, known as Rule 48, prohibits motor carriers operating under Class "A" certificates from making any charge other than in conformity with the language set forth in the code sections quoted next above. Said rule further provides: "Nor shall any such carrier refund or remit in any manner or by any device any portion of the rates or charges prescribed or approved by the Commission." The foregoing constitutional provision, the statutes, the decisions of the courts, and the rule of the Commission, have been referred to and quoted together in order to present a basis from which I must determine the answer to the questions submitted in your letter. I have been unable to find any decision of the Supreme Court or Court of Appeals of this State directly upon the instant questions. After a careful reading of all the cases cited by the late Judge Hines in his said opinion in support of A-45 his opinion rendered May 3, 1910, I cannot agree that those cases offer any direct authority at this time to sustain the conclusion reached by him. In a determination of the questions here presented I think certain language used in Code Section 93-309 is important, particularly the following: "the Commission shall make reasonable and just rates of freight and passenger tariffs, to be observed by all railroad companies doing business in this State, on the railroads thereof;- (Emphasis supplied.) The word "make" is defined in Webster's New International Dictionary as, "to form", "to fashion", "to construct. " The use of the word "make" in the power conferred upon the Commission in connection with rates seems to me equally as strong and inclusive as the word "fix" as used in statutes in other states. If the Commission is empowered to "make" rates and these rates must "be observed" is not the rate so made, whether it is designated as a maximum or not, in effect the actual rate, until and unless another or different rate is prescribed or approved by the Commission? The word "prescribe" as used in connection with the Commission's power over rates of motor carriers in Code Sections 68-510 and 68-613, if given the definition shown in the aforesaid dictionary, means: "to give directions", "to dictate." The right of motor contract carriers and motor common carriers to deviate from the rate prescribed or approved by the Commission is circumscribed by the language used in Code Sections 68-511 and 68-614, as follows: "No ... carrier shall charge, demand or receive a greater or less or different compensation . . . than prescribed or approved by the Commission. " (Emphasis supplied. ) The Court of Civil Appeals of Texas, in the case of Community Natural Gas Co. v. Natural Gas and Fuel Co., 345 W. (2nd) 900, 902, decided on November 26, 1930, said: "The word 'regulate' cannot be construed as limiting the power granted to maximum rates . . . Wherever the question has arisen, this power has been construed as extending, not only to the fixing of maximum, but also of absolute rates". See also: Pinney & Boyle Co. v. Los Angeles Gas & Electric Corporation, 168 Cal. 12, 15, 141 Pac. 620, 621, L. R. A. 1915 C, 282, Ann. Cas. 1915 D. 471; In the case of Economic Gas Company v. Los Angeles, 167 Cal.. 448, 450, 143 Pac. 717, 718. Ann. Cas. 1916 A. 931, the court said: "If the legislative body of a city might only fix a maximum rate, it might be possible for a corporation to reduce its charges, in some form or another, to a point which would drive a competitor out of business and, after accomplishing that result, to resume the maximum charge permitted by law." In the case of Mapleton v. Iowa Public Service Co., 209 Iowa 400, 223 N. w. 476, 479, 68 A. L. R. 993, the Supreme Court of Iowa said: "In order to sustain the defendant's position, it would be necessary to add qualification to the terms of the statute to the effect that the rate fixed is a maximum one only. There can be no legitimate construction of the statute to that effect, unless it be necessary to save its constitutionality. Such necessity is not present. -A public utility, operating under a franchise, has no constitutional right of competition. Moreover, a rate war is not necessarily competition. It may be, and usually is, a mere fight, which bades nothing to the public but disorder and disorganization. " A-46 Statutes of the State of Montana providing "that no advance or reduction of existing schedules (of utility rates) shall be made without concurrence of the Commission", and "makes it unlawful for public utility to charge rates or tolls not specified in such schedules", were held by the Supreme Court of Montana, in the case of Great Northern Utilities Company v. Public Service Commission, 88 Mont. 180, 293 Pac. 294: "to clothe Public Service Commission with power to fix precise rate, minimum as well as maximum, to be charged by public utility." The same styled case also came before three judges in the federal district court of Montana, 52 F. (2nd) 802-811. Tllere it was held: "State public service commissions can establish minimum rates for intrastate utilities, and exercise of such power does not constitute taking property without due process. " An elaborate discussion of the authorities upon the question of fixing minimum rates in the concurring opinion of Circuit Judge Sawtelle in that case, 52 F. (2nd) 805-811. On page 807 he says: "As we have seen, the Montana statute in question specifically gives to the Commission the power to fix a minimum as well as a maximum rate. But even where such provision is lacking, there are numerous authorities that hold, and soundly, that the power to fix a rate implies the power to make that rate both the minimum and the maximum. " It may be pointed out that the federal district court decision, 52 F. (2nd) 802811, was affirmed by the Supreme Court, of the United States in a memorandum decision, 285 U. S. 523, 76 L. ed. 921. It is my opinion that the power of the Georgia Public Service Commission to make reasonable and just rates of freight and passenger tariffs, and to prescribe just and reasonable rates, fares and charges for transportation is not limited to fixing the maximum rate, but the Georgia Public Service Commission may make or prescribe the maximum rate, the maximum and minimum rate, the minimum rate, or the actual or precise rate for transportation of freight or passengers by railroads or motor contract carriers or motor common carriers engaged in intrastate business in the State of Georgia. PUBLIC SERVICE COMMISSION-Railroad passes may be issued to State Library Commission Secretary when used for eleemosynary purposes. August 3, 1939 Honorable Walter R. McDonald Chairman, Georgia Public Service Commission Mr. A. J. Young of the Georgia Public Service Commission has forwarded to me certain correspondence between Mrs. James Y. Swift, member, State Library Commission, and Mr. L. R. Powell, Jr., receiver of the Seaboard Air Line Railway, together with a letter dated July 18, 1939, from Mrs. Swift to Honorable E. D. Rivers, Governor. The question raised in the aforesaid correspondence is whether or not Miss Beverly Wheatcroft, secretary, State Library Commission, is within the class of the exceptions to the prohibition against common carriers issuing free passes. The Georgia Public Service Commission deals with the subject of free passes under Rule 20 of the passenger rules promulgated by the commission. A part of said rule reads as follows: A-47 "No railroad company or other common carrier, subject to the jurisdiction of the Georgia Public Service Commission shall be allowed to issue or honor any free ticket, free pass or free intrastate transportation for passengers between any points in this State, except upon the terms provided for interstate free transportation by the Act of Congress approved June 29, 1906, known as the Hepburn Act; and as amended June 19, 1910." The portion of the Hepburn Act referred to in the rule of the Georgia Public Service Commission is now codified under U. S. C. A. Title 49, Section 1, subsection (7), the applicable portion of the same reading as follows: "No common carrier subject to the provisions of this chapter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries of Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work . . . " (Emphasis supplied. ) It is clear that if Miss Wheatcroft as secretary of the State Library Commission comes within the class of persons to whom a pass may be given it is by virtue of the last quoted clause, to wit: "And persons exclusively engaged in charitable and eleemosynary work". In examining the law relating to the creation, purposes and duties of the State Library Commission, as well as the secretary of said commission I find that these things are set forth under Chapter 32-26 of the 1933 Georgia Code. The State Library Commission consists of the State Librarian and four other persons appointed by the Governor. The duties of the commission are set forth under Section 32-2602 of the Code in the following language: "The Commission shall give advice and counsel to all libraries and to all communities which may propose to establish them, as to the best means of establishing and administering such libraries, the selection of books, cataloguing, and other details in library management. The Commission may also conduct a system of traveling libraries and circulate such libraries within this State among communities and institutions, free of cost except for transportation. The Commission is authorized to purchase and accept gifts of books, periodicals and traveling libraries. The Commission may also employ a trained paid secretary, not from its own number, t.o carry on the work of the Commission as herein outlined. The Commission may also send its members to aid in organizing new libraries or improving those already established. The Commission shall make annual reports to the Governor." Section 32-2603 of the Code reads as follows: "No member of this Commission shall receive any compensation for services and traveling expenses as a member of this Commission except that the secretary, in addition to the salary, shall receive actual traveling expenses while engaged upon the work of the Commission. To enable the Commission to properly discharge its duties, the sum of $10, 000 per annum is hereby appropriated for the service of the secretary and other legitimate expenses, to be paid by the State Treasurer upon warrant based on vouchers signed by the secretary and approved by the chairman. Said secretary shall devote his or her entire time to said office under the direction of the Commission. The Commission shall be provided with suitable quarters in the State capitol. " For the purpose of this opinion I assume that Miss Beverly Wheatcroft, secretary, State Library Commission, is engaged exclusively in work for the Library A-48 Commission. Section 38-2603 of the Code provides that the secretary shall devote her entire time to said office under the direction of the commission. In determining whether or not the secretary of the State Library Commission is a person exclusively engaged in charitable and eleemosynary work we must look to the commission which she serves and the character of the work that is being done by the State Library Commission. It is evident that th e State Library Commission is a non-profit commission rendering a service to the public in establishing libraries and fostering the administration of library management. A library has been classed as an "institution of purely public charity", when administered for the advancement of knowledge and literature and not used in any way for the purpose of private profit. Philadelphia Library Co. v. Donohough (Pa.) 12 Phil. 284, 285. Webster's New International Dictionary defines the word eleemosynary as "relating or devoted to charity". The Interstate Commerce Commission In The Matter of Passes to Clergymen and Persons Engaged in Charitable Work, Volume 15, p. 45, I. C. C. Reports said: "The courts have been consistently liberal in giving construction to the words 'charitable' and 'eleemosynary' . . . A charitable institution is one which is administered in the public interest and which the element of private gain is wanting." If Miss Beverly Wheatcroft, as secretary of the State Library Commission, is exclusively engaged in the work of that commission in my opinion it can be held that she is a person exclusively engaged in charitable and eleemosynary work and a free pass given to her by a common carrier to travel in the State of Georgia would not be in violation of the prohibition against common carriers granting free passes. PUBLIC SERVICE COMMISSION-Corporate securities must be approved by the Commission. July 7, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission Mr. Knowles Davis of your office has transmitted to me the file in connection with the proposed sale by M. C. York, doing business as the Standard Telephone Company of the County of Habersham to H. M. Stewart. The file shows that in addition to the consideration to be paid in cash there is the sum of $14, 000. 00 balance payment for the telephone property evidenced by 86 serial promissory notes, and that the purchaser proposes to execute a deed to secure a debt covering the telephone property to secure said indebtedness. You ask whether or not it is necessary to secure an order from the Commission authorizing the issuance of the notes in this case which mature more than 12 months after date. Section 93-414 of the 1933 Georgia Code provides that each company or corporation over which the authority of the Public Service Commission is extended by law is required to secure an order from the Commission authorizing the issuance of notes or other evidence of debt payable more than 12 months after date thereof. It appears in the instant case that the notes proposed to be issued to secure the indebtedness for the balance of the purchase price of the telephone company extends for a term of more than 12 months. Therefore, it is my opinion that an order from the Commission should be obtained, authorizing such issuance. In these cases it is provided that the Commission shall make such inquiry or investigation, hold such hearings and examine such witnesses, books, A-49 papers, documents or contracts as it may deem advisable or necessary for the purpose of enabling the Commission to determine whether such order should be issued. It is my further opinion that the nature of the inquiry and investigation, hearing or examination is largely in your discretion as to the formality thereof. PUBLIC SERVICE COMMISSION-Corporate securities of interstate motor common carrier required to be approved by Georgia Commission, when; no approval nunc pro tunc. August 9, 1939 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission On July 19, 1939, Hon. A. 0. Randall, Secretary of the Georgia Public Service Commission, transmitted to me a request in behalf of the Commission for an opinion upon the questions raised in a letter addressed to the Commission under date of July 12, 1939, from an attorney at law for a motor common carrier incorporated in Georgia, and engaged in intrastate and interstate business. On account of the lengthy hearing of another case recently before the Commission and for the reason that I have been out of the State for several days on another case, I have been unable to answer your request until this date. The primary question presented for an opinion is whether or not the Georgia Public Service Commission has jurisdiction over the issuance of securities of a motor common carrier, payable more than 12 months after the date thereof. Should that question be answered in the affirmative, two other questions arise: (a) Does the Commission have jurisdiction to approve securities nunc pro. tunc which were issued without the approval of the Commission? (b) Does the Commission have the authority to approve the issuance of a common stock dividend? Under an Act of the General Assembly of 1907 as amended by an Act of 1922 (Ga. Laws 1907, pages 72-77) ; (Ga. Laws 1922 pages 143-144) , codified as Section 93-414 of the Georgia Code of 1933, the Georgia Public Service Commission was given jurisdiction to approve corporate securities "of the companies or corporations over which the authority of the Public Service Commission is extended by law." The applicable portion of said Code Section reads 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 12 months after date thereof, except upon the approval of said Commission, and then only when necessary and for such amount as may be reasonably required for the acquisition of property, the construction and equipment of power plants, and carsheds, and the completion, extension, or improvement of its facilities or properties, or for the improvement or maintenance of its service, or for the discharge or lawful refunding of its obligations or for lawful corporate purposes falling within the spirit of this provision, the decision of the Commission to be final as to the validity of the issue. Before issuing such stocks, bonds, notes, or other evidences of debt, as above mentioned, such corporations or companies shall secure an order from the Commission authorizing such issue, the amount thereof, and the purpose and use for which the issue is authorized. (Emphasis supplied.) A-50 It is true that at the time of the approval of the said Act of 1907 and the amendment of 1922, the Georgia Public Service Commission had not been given by statute any jurisdiction over motor common carriers. The present motor common carrier statutes are codified from Georgia Laws 1931, page 199 et. seq. The General Assembly of Georgia by an Act approved February 14, 1935 (Ga. Laws 1935, pages 84-85) adopted the Code of Georgia of 1933, and used in a portion of the said Adopting Act the following language to wit: "... 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 statutes enacted by the General Assembly of this State. Said Code shall be known as the Code of Georgia of 1933. " (Emphasis supplied. ) It is well settled that an Act of the General Assembly adopting an official code enacts into one statute all of the statutes and acts embraced therein. In the case of Barron v. Terrell 124 Ga. 1077, the court said: "The effect of the act adopting the present code was to enact into one statute all the provisions embraced in the Code. Central R. Co. v. State, 104 Ga. 831. And in construing any section of the Code, we must treat it as a single statute, forming one homogeneous and consistent body of laws, and each code section is to be considered in explaining and elucidating every other part of the common system to which it belongs. " See also, Barnes vs. Carter 120 Ga. 895; Davis vs. Davison 160 Ga. 545 and Atkinson vs. Swords 11 Ga. App. 167. While it will be noted that Section 93-414 of the Code is classified under the heading "Rights, duties, liabilities, etc., of railroads, etc. , " the Supreme Court has held that the particular heading given by the codifier to the various chapters of the Code cannot be considered as part of the legislation of the State. See Blocker v. Boswell109 Ga. 230, at page 235; Doyal vs. The State 70 Ga. 134 and Battle vs. Shivers 39 Ga. 407. In view of the above, it is my opinion that since the adoption of the Code of Georgia of 1933, Section 93-414 of the Code must be construed in connection with Section 68-603 of the Code, which latter Section extends the authority of the Public Service Commission to motor common carriers, and therefore, it is my opinion that the Georgia Public Service Commission is vested with jurisdiction and authority to deal with and approve or disapprove stocks, bonds, notes, or other evidences of debt, issued by motor common carriers and payable more than 12 months after the date thereof. I am not unaware of the provisions of the Federal Motor Carrier Act of 1935 and especially Title 49, Section 314 U. S. C. A. relating to the jurisdiction of the Interstate Commerce Commission over the issuance of securities of interstate motor common carriers in certain cases. It is noted however, that the Interstate Commerce Commission does not deal with the subject of the issuance of securities of interstate motor common carriers unless the par value of the securities issued and outstanding exceed $500, 000. 00, nor to the issuance of notes of a maturity of two years or less unless they aggregate $100, 000. 00. In the case of A-51 the issuance of securities by an interstate motor common carrier in such amounts that the Interstate Commerce Commission would have jurisdiction thereof, such jurisdiction would be paramount and the Georgia Public Service Commission could not deal with such issuance of securities. However, in the case of a motor common carrier doing an intrastate as well as an interstate business where the carrier is a Georgia corporation and where the proposed issuance, together with the outstanding securities are less than the amount giving the Interstate Commerce Commission jurisdiction, it is my opinion that the Georgia Public Service Commission has jurisdiction to deal with, approve or disapprove the issuance of securities of such a motor common carrier. Dealing with the question of whether or not the Commission has jurisdiction or power to approve securities at the present time which were issued in the past without the approval of that body, !.do not find any express or implied provision in the statutes of this State giving the Georgia Public Service Commission power or authority to approve an issue of securities now for then. The Commission has only such powers as are granted under the Constitution and statutes or which arise by necessary implication from the powers specifically granted. The em- phasized language of Section 93-414 of the Code of Georgia of 1933 set forth hereinabove, clearly shows that the jurisdiction and power given the Commission is to pass on securities before their issuance. The definite wording of the statute excludes the idea that by implication the Commission would have jurisdiction or power to approve the securities at a later time. The statute does not contain any express language authorizing the approval after the date of issu- ance. Public Service Commissions of other states have held that they do not have the power to approve securities nunc pro tunc. Some of these cases are: (California) (Oregon) (Missouri) (New Jersey) (New Hampshire) P. U. R. 1915 A 643; P. U. R. 1915 A 1071; P. U. R. 1919 E 370; 17 P. U. R. (New Series) 225; 12 P. U. R. (New Series) 471; P. U. R. 1932 B 212 12 P. U. R. (New Series) 469; P. U. R. 1915 E 931. I am not unmindful that the statutes of California, Oregon and Missouri, differ somewhat from the Georgia statute, and that in some, if not all, of the three named states, the statutes provide that such securities are void when they are issued without the authorization of the Commission. New Jersey and New Hampshire do not have statutes declaring such securities void where they are issued without the approval of the Commission. However, in reaching the conclusion in this opinion that theGeorgia Public Service Commission does not have jurisdiction and power to approve securities nunc pro tunc it is not necessary for me to rule on the question of whether or not securities issued without the approval of the Commission are void. That question is not included in the request for opinion and I do not attempt to pass upon it at this time. In connection with the question of whether or not the Commission has power to approve the issuance of stock where it is issued for the purpose of a stock dividend, we must look to the underlying reason why Commissions have been given power over public utility securities. The purpose of regulating the issuance of securities by public utilities is to protect the public by assuring the sound capitalization of the utility. See, In RePeople vs. Stevens (Court of A-52 Appeals of N. Y.) ; 90 N. E. 60; In Re People vs. Liberty Light and Power Co., 201 N. Y. Supp. 302. If the assets of the corporation contain a value sufficient to pay out the dividend proposed without watering the capital stock structure, I do not see any harm that the public would suffer in allowing the corporation to pay its stockholders in that manner if it prefers to do so instead of selling additional stock or paying its stockholders dividends in cash. When commissions deal with questions of stock dividends it is assumed that they will inquire of the charter rights of the corporation to issue stock for the purpose of paying dividends as well as whether the assets of the company or corporation justify the stock dividend in the amount proposed. Under Section 93-414 of the Code of Georgia of 1933 among the purposes enumerated for which corporations may issue securities I find this clause: "or for lawful corporate purposes falling within the spirit of this provision. " In my opinion this clause gives the Commission the discretion to approve a stock dividend if the proposal is timely submitted and if the Commission believes the public will not suffer from unsound capitalization by reason of the issuance of the stock dividend by such corporation. I am returning to you herewith, the letter addressed to the Commission under date of July 12th. ROADS; STATE HIGHWAY REFUNDING BONDS-State without authority to enter into option for discretionary issue in the future. July 2, 1940 MEMORANDUM To Hon. Ellis G. Arnall, Attorney General From Marshall L. Allison, Assistant Attorney General Subject Proposed option on Highway Refunding Bonds The question presented is whether or not the State of Georgia may grant to the Trust Company of Georgia an option at the present time, for a period of sixty days and for "reasonable extension thereof" to purchase $2, 650, 000 at par value of Highway Refunding Bonds to be issued by the State of Georgia on March 15, 1941 and payable March 15, 1948, the option price being the par value of said bonds so to be issued, and said option to be for all, but not part, thereof. Payment for said bonds to be made in cash to the State of Georgia on delivery of the same by the State to the Trust Company of Georgia, at par plus accrued interest at the date of delivery, and said bonds to bear interest at the rate of two (2%) per cent per annum from the date thereof. The proposed option pro- vides that when and if the Trust Company of Georgia elects to exercise the option and to purchase the said bonds, notice thereof in writing shall be given and a written contract shall be entered into between the Trust Company of Georgia and the State of Georgia in pursuance of said option and acceptance thereof. The General Assembly of Georgia at the 1939 Session (Ga. Laws 1939, pp. 47- 49) proposed an amendment to Article 7, Section 8, Paragraph 1 of the Consti- tution of Georgia (Code Sec. 2-5601) , authorizing the Governor to issue, at three different times, Highway Refunding Bonds in the sums of $2, 650, 000 each to cover payment of Highway Refunding Certificates due March 25, 1939, March 25, 1940, and March 25, 1941, respectively. The amendment was ratified at the general election held June 6, 1939. The said amendment above referred to in part provides: A-53 "The Governor of the State of Georgia may, as soon after the ratification of this constitutional provision as is convenient issue in the name of the State of Georgia and under its Seal, Highway Refunding Bonds in the sum of $2, 650, 000. 00 payable March 15, 1946, and same shall be sold by the Governor, for the purpose of refunding to the State HighWay Department that amount paid on State of Georgia, Highway Department Refunding Certificates coming due and paid by the State Highway Department on March 25th, 1939. "On March 15th, 1940, the Governor may issue in like manner Highway Refunding Bonds in the sum of $2, 650, 000. 00 payable March 15th, 1947, for the purpose of paying said State Highway Certificates coming due March 25th, 1940. "On March 15th, 1941, the Governor may issue in like manner Highway Refunding Bonds in the sum of $2, 650, 000. 00 payable March 15th, 1948, for the purpose of paying said State Highway Certificates due March 25th, 1941." The said above amendment is an exception to that portion of the said constitutional provision forbidding assumption of debts. The original portion of the said paragraph of the Constitution provides: "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:" By an amendment proposed by the General Assembly of 1931 (Ga. Laws 1931, p. 97), ratified November 8, 1932, a proviso was added to the said paragraph of the Constitution whereby the State of Georgia assumed as an indebtedness of the State all the indebtedness of the several counties of the State, as well as of the coastal highway district, and assessments made against the counties of said district, heretofore incurred for the construction and/or paving of the public roads or highways (including bridges) of the State. The above mentioned amendment ratified June 6, 1939, of which a portion is quoted hereinabove, was added to the said paragraph following the amendment ratified November 8, 1932. As to the last amendment, ratified June 6, 1939, it is further provided that the said refunding bonds shall bear interest at 2% per annum payable semiannually from the funds allocated to the State Highway Department, on the first days of September and March until the maturity of the said refunding bonds. No bonds shall be sold at less than par. It will be observed that the amendment ratified June 6, 1939, is an exception to the provision of said paragraph of the Constitution forbidding assumption of debts by the State. Therefore, in interpreting the meaning and scope of the said amendment of 1939, the whole paragraph of the Constitution as amended must be read in pari materia. Reverting to the authority given by the amendment of 1939, it will be seen that the Governor was specifically authorized, as soon after the ratification of that constitutional provision as was convenient, to issue a block of the Highway Refunding Bonds in the sum of $2, 650, 000 payable March 15, 1946, for the purpose of refunding to the State Highway Department that amount paid on the State of Georgia Highway Department Refunding Certificates becoming due and paid by the State Highway Department on March 25, 1939. The immediate issuance of the Highway Refunding Bonds was by the language of the constitutional provision limited to that block to be used to refund certificates due and paid on March 25, 1939. The next portion of the said constitutional amendment fixes March 15, 1940, as the time when the Governor might issue another block of Highway Refunding A-54 Bonds in the sum of $2, 650, 000 payable on March 15, 1947, for the purpose of paying said State Highway Certificates coming due March 25, 1940. The next portion of the said constitutional amendment fixes March 15, 1941, as the date when the Governor may issue in like manner Highway Refunding Bonds in the sum of $2, 650, 000 payable March 15, 1948, for the purpose of paying said State Highway Certificates due March 25, 1941. It is important to note that the language of the constitutional amendment authorizing the Governor to issue the block on March 15, 1941 uses the words "may issue". These words are indicative of a permissive, rather than a directory, authority. This being so, it is within the realm of possibility that on March 15, 1941, the State might have available other funds for the payment of the State Highway Certificates due March 25, 1941, and for that reason the Governor might not desire to exercise his permissive authority under the constitutional amendment to issue the said block of refunding bonds. Looking to the language of the amendment to the constitutional provision ratified June 6, 1939, there is no language therein which expressly confers any power on the State or the Governor to grant an option for the purchase of the block of Highway Refunding Bonds which might be issued on March 15, 1941. Keeping in mind that the amendment of June 6, 1939, is an exception to the ~onstitutional provision prohibiting assumption of debts by the State, it cannot be said that the amendment of June 6, 1939, by implication grants any power to the State or the Governor to give an option prior to March 15, 1941, for Highway Refunding Bonds which might be issuecj. as of the latter date. The proposed option, if entered into at the present time, and if enforceable, Nould obligate the State prior to March 15, 1941, to issue the said block of Highway Refunding Bonds and would have the effect of denying the Governor who would be serving on March 15, 1941, his permissive right to exercise his privilege to issue or not issue the refunding bonds at that time and if the present Governor was not Governor on March 15, 1941, there would be a denial of the right of such other Governor who might be serving on March 15, 1941, of his permissive right and authority under said constitutional amendment. The unsettled world economic situation might make it impossible to market the bonds on March 15, 1941, within the limits of the interest and price required under the constitutional amendment. So an offer at this time on the bonds assuring their sale on March 15, 1941, might be highly advisable from a business viewpoint. However, I cannot look to the expediency of the matter, but must give consideration only to the authority conferred by the constitutional amendment. As pointed out above, the constitutional amendment does not authorize the option, and when the plain intent is given to the said constitutional provision, it will not admit of any other construction, for the reasons hereinabove given. In addition, an option for the purchase of the Highway Refunding Bonds which might be issued on March 15, 1941, by an option between the State and one security dealer limits the purchase to one bidder and is contrary to the previous executive and administrative practice of shopping among all qualified security dealers for the purpose of obtaining the highest return from the bonds to be issued by the State. My conclusion, therefore, is that the State is without authority at the present time to enter into any option agreement for the sale of Highway Refunding Bonds which might be issued on March 15, 1941. A-55 INDEX TO OPINIONS OF MARSHALL L. ALLISON, ASSISTANT ATTORNEY GENERAL Page CHIROPRACTORS (Code Title Professions 84) Four year standard college course of nine months each prerequisite for eligibility__________________________________________________________ A-30 COURTS (Code Title 24) Clerk of the Superior Courts; vacancy; time for holding election________ A-3 EDUCATION (Code Title 32) Local school districts; authority to charge tuition for non-resident pupils__ ________________________________________________________________ A-3 ELECTIONS (Code Title 34) Returns of managers; where filed_______________________________________ Superior Court Clerks; vacancy; time for holding election_____________ MILITIA (Code Title Public Defense 86) Special pay members exempt from jury service_________________________ MOTOR CARRIERS (Code Title Motor Vehicles eB) Carrier for hire between military reservation and outside points is subject to motor carrier laws_____________________________________________ Fee for certificates, when due; authority of Commission to refund___ Fertilizer agent hauling fertilizer belonging to his principal for hire is subject to motor carrier laws_________________________________________ Idemnity insurance carrier of interstate motor carrier-when subject to approval by Georgia Commission___________________________________ Inspector's power to lift purported agreement for lease of vehicle from suspected illegal operator_____________________________________________ Licensed carrier unauthorized to lease vehicle to an unqualified carrier or others_______________________________________________________________ Merchant hauling his own goods from manufacturer's warehouse to retail store is not subject to motor carrier laws______________________ Municipalities prohibited from levying excise, license or occupation taxes against motor carriers__________________________________________ Ordinary's, Recorder's or City Court's jurisdiction to try traffic offenses arising from a violation of safety rules of the Commission__ Reciprocal agreements with other states; authority of Georgia Public Service Commission___________________________________________________ Reciprocal agreements with other states; when carrier entitled_______ Requirements of application for class "B" contract carrier____________ Situs of ad valorem taxation of rolling stock of motor carriers________ Vehicles transporting agricultural or dairy products exempt from motor carrier laws under certain conditions.._________________________ Weight limit of trucks hauling petroleum products____________________ PROFESSIONS-See Chiropractors PUBLIC DEFENSE-See Militia PUBLIC SERVICE COMMISSION (Code Title 93) Authority to approve municipal bonds as security for deposit_________ Corporate securities must be approved by the Commission____________ Corporate securities of interstate motor common carrier required to be approved by Georgia Commission, when; no approval nunc pro tunc__ Railroad's actual freight rate may be prescribed by the Commission; not limited to prescribing maximum rates ___ ------------------------- A-5 A-3 A-31 A-14 A-28 A-ll A-21 A-17 A-15 A-13 A-29 A-20 A-5 A-7 A-24 A-9 A-10 A-9 A-35 A-48 A-49 A-43 A-56 Railroad cannot discriminate against applicant for spur track facilities A-40 Railroad passes may be issued to State Library Commission Secretary when used for eleemosynary purposes________________________________ A-46 Railroad requirement for deposit by employee for switch key is not a matter within the jurisdiction of the Commission___________________ A-40 Secretary's duties as custodian of books and papers___________________ A-32 Special fees cannot be collected from Tennessee Valley Authority______ A-34 Special fees levied against public service corporation for expenses of the Commission; power of the General assembly to divert-discussed__ A-32 Telegraph company cannot by rule deprive sender of message of his right to recover nominal damages, if any sustained__________________ A-37 Telegraph company required to render reasonable service to the public Western and Atlantic Railroad property deeds to right of way; ap- proval as to form_. ____________________________________________________ A-36 ROADS (Code Title 95) -See State Highway Refunding Bonds STATE HIGHWAY REFUNDING BONDS (Code Title Roads 95) State without authority to enter into option for discretionary issue in the future_ _____ __ __ __ __ __ __ _______ ______ ____ _______ __ ________ ______ __ A-52 PART III OPINIONS OF EMIL J. CLOWER Assistant Attorney General of Georgia B-3 ELECTIONS-Candidates for certain offices must file campaign expenses. December 3rd, 1940. Hon. Thomas L. Akin, Rockledge, Georgia. Due to the fact that Mr. Arnall is engaged in the preparation of very important litigation in which the State has a vital interest, he has referred your letter of recent date to me for reply. You ask whether it would be expedient for you to file a statement for campaign expenses as an independent candidate for Commissioner of Agriculture in the general election, and with whom such expenditures should be filed; whether it is legal for three of the Democratic nominees to be on two tickets each; whether it was legal for a candidate to be on two or more tickets; whether it was legal for two or more candidates to be on the same ticket and whether it was legal to erase and write in others on any ticket including the ticket on which party nominees appear. Under the law prescribing the duties of the Attorney General and his assistants, we are not authorized to render official opinions to private individuals, and consequently what is said herein must be taken as purely unofficial and binding upon no one. Under the law, the Attorney General and his assistants can only advise the Governor and heads of State Departments with reference to State matters. Under the provisions of Code Section 34-2001, all candidates for State House Officers are required, within twenty days from the date of the election at which they were candidates, to file with the Comptroller General an itemized statement under oath of all campaign expenses incurred by them, showing the amount of money expended in such campaign, the purposes for which it was used, and the source from which it was derived, and are also required to publish said sworn statement in some newspaper of general circulation published at the capital of the State. With reference to your other questions, there is no statute in this State which prohibits a candidate from having his name placed upon a ballot in more than one place or for more than one office. In those counties which have adopted the Australian Ballot Law as codified in Chapter 34-19 of the Code, the voter, in marking his ballot, is supposed to "erase or mark out the name or names of the candidate or candidates for whom he does not wish to vote. " (Code Section 34-1903). The ballots are prepared in such a manner that a blank space is always left wherein a voter may write in the name of some other candidate for whom he desires to vote, rather than those printed on the official ballot. Of course, it would also be necessary for a voter to write in the name of the office for which he desired to vote for said candidate. ELECTIONS; Registrars list of voters, when filed; what names entered; disqualification by non-payment of poll taxes. August 9, 1940 Honorable F. S. Batchelor, Sr. Eatonton, Georgia Mr. Arnall is out of the State on official business and will not return for several days. In his absence I am pleased to acknowledge yours of the 8th instant requesting of him an unofficial opinion upon certain questions inclosed in your B-4 letter. As suggested in your letter, the replies to these questions must be considered as unofficial and as expressing only the personal views of the writer, as based upon the pertinent statutes. I trust that what is said herein will be of help to you and to your Board of County Registrars. 1. In a county in which the registrars met after April20, 1940, and filed with the clerk of the Superior Court a list of voters certified as correct, which list was filed before June 1, 1940, has the Board of Registrars authority during the same election year to revise the voters' list a second time, and remove names therefrom? Answer. Code Section 34-404 provides: "Within five days after completing the list of voters, the registrars shall file with the clerk of the superior court of their county a complete list of the registered voters of the county as prepared and determined by them. Said list shall be alphabetically arranged by militia districts, and, in case a city is located in the county, by wards of the city, and said list shall be the list of registered voters for the general election to be held in said year for the Governor and other State officers and members of the General Assembly, and no person shall vote or be allowed to vote at said general election, or at any party primary to nominate candidates for the offices to be filled at said general election, unless his name is upon the said registration list so filed by said registrars, and no person whose name is not on said list shall vote or be allowed to vote at any other election or primary except as hereafter provided in this Title. " I am of the opinion that a proper construction of this section means that after the Board of Registrars have filed the completed list of registered voters of the county as prepared and determined by them with the clerk of the Superior Court, such list is the official list which must be followed by the electionmanagers in the general election and in any primary election held prior to the election. It necessarily follows that the Board of Registrars has no authority, after such list is filed, to revise the same and to remove names therefrom. 2. When the name of a voter appears on the voters' book, and does not appear on the list of disqualified persons furnished by the tax collector, clerk and ordinary, have the registrars the right to omit such name from the list of voters without written notice and opportunity for a hearing? Answer. Code Section 34-402 provides in part: "All names appearing on the lists taken from the voters' books, and not appearing on the list of disqualified voters, shall be entered on the list of registered voters, unless withheld therefrom as hereinafter provided. " (Emphasis supplied. ) The phrase "unless withheld therefrom as hereinafter provided" refers to the subsequent provision in this same section whichsays: "A name appearing on the list taken from the voters books, and not appearing on the list of disqualified voters aforesaid, shall be withheld from the list of registered voters when the county registrars are convinced by sufficient legal proof that such person is, in fact, not qualified to vote. " (Emphasis supplied. ) In view of the fact that this language "sufficient legal proof" necessarily implies that a legal hearing before the registrars must be had before a name appearing upon the list taken from the voters books and not appearing on the list of disqualified voters may be stricken or denied the right of being placed on the list of registered voters, such a hearing is that contemplated by Code Sections 34-602, 34-603 and 34-604, and these sections should be construed in connection B-5 with 34-402. When thus construed, I am of the opinion that the registrars have no authority to refuse to enter the name of a voter on the list of registered voters where his or her name appears on the voters book and does not appear on the list of disqualified persons furnished by the tax collector, clerk and ordinary, unless the Board of Registrars have given a notice and had a hearing in which "sufficient legal proof" has been introduced to satisfy the minds of the Registrars that such person is not, in fact, qualified to vote. 3. When a person has paid all taxes charged against him, without its being noticed that by inadvertence, accident or otherwise, poll tax was not charged against him, is such person disqualified from voting because of failure to pay the poll tax? Answer. Under Article II, Section I, Paragraph III of the Constitution no person is entitled to register and vote at any election by the people unless he or she "shall have paid all poll taxes that he may have had an opportunity of paying agreeably to law". The fact that by inadvertence, accident or otherwise a person fails to pay any poll tax which has accrued against him would not remove this constitutional disability to participate in an election. In other words, the responsibility of paying all poll taxes in accordance with the constitutional requirement set out in Article II, Section I, Paragraph III, is upon the person seeking to qualify as a voter, and if such person has not made payment of such taxes "at least six months prior to 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" he is disqualified as a voter. 4. Can the name of a voter be removed from the list because of failure to pay poll tax during a period of time in which he resided out of the State? Answer. Poll taxes, under the statute levying them, are levied only upon "inhabitants of the State. " When a person is no longer an inhabitant of this State, he is not subject to the poll tax for the years in which he occupies such status. Thus, if a person who is registered as a voter in this State moves to some other State and becomes an inhabitant of another state and is no longer an inhabitant of this State, and he remained in this status for five years and then returned to Georgia and became an inhabitant of this State he would not be subject to the payment of a poll tax for the five years in which he was absent from Georgia. If he returned to this State on January 1 of any given year, he would be subject to the poll tax for that year, but if he returned on January 2 he would not be subject to the poll tax for said year, as poll taxes are levied as of January 1 of each year and a person's status as of January 1 of each year determines whether or not he is or is not liable for the payment of the same. 5. Is a person ineligible to vote because of failure to pay a tax which was never charged to him on the digest? That is, if one registered at the age of 25, and beginning with that year has paid all poll taxes, having now reached the age of 40, is he ineligible because of not having paid poll tax prior to the year in which he registered? Answer. What is said in answer to question 3 to a large degree answers this question also. If a person who was an inhabitant of the State since he became 21 years of age, and who is now 25, goes to the Tax Collector to register and become qualified as a voter, it would be necessary for him to pay a poll tax for each of the years since he became 21, and if he became 21 on January 1, to also pay a poll tax for said year. If such a person has not paid the poll taxes for the five years since becoming 21, and he was an inhabitant of this State during said period, Article II, Section I, Paragraph III, of the Constitution would serve to disqualify him as a voter, although he has paid all poll taxes since registering B-6 at the age of 25. This rule stated above, of course, does not apply to female voters, for they are not subject to poll tax until they register for voting. Thus if a female voter who has been an inhabitant of this State ever since she arrived at the age of 21, upon reaching the age of 25, went to the tax collector's office to register and qualify as a voter she would not be due any poll taxes for previous years. 6. To what extent is a female voter liable for poll tax? Answer. Poll taxes are levied under paragraph 2 of Section 1 of the General Tax Act of 1935 (Georgia Laws 1935, page 12) "upon every inhabitant of the State between the ages of 21 and 60, on the day fixed for the return of property for taxation" and it is provided "this tax shall not be demanded of blind persons, or female inhabitants of the State who do not register for voting. " (Emp;hasis supplied.) Accordingly a female inhabitant of this State does not become liable for a poll tax until she registers, and if she registers on January 1 of a given year she is subject to poll taxes for that year and each year thereafter until she attains the age of 60. If she registers on January 2 of said year she is not subject to poll tax for that year, but will be subject for each year thereafter until she attains the age of 60. ELECTIONS-Split tickets, when counted. November 1, 1940. Ron. J. M. Middlebrooks, Ordinary Upson County, Thomaston, Georgia. In the absence of Mr. Arnall from the office, I am pleased to acknowledge yours of the 30th ultimo, requesting my ruling on the question as to whether the ballots of voters who vote what is commonly referred to as a split ticket should be counted. Under the law it is the duty of the Governor to prepare and furnish to the ordinaries election blanks and ballot forms, and the ordinaries are, in turn, required to have printed and furnished the ballots to be used in said election, together with instructions for the guidance of voters in preparing their ballots. See Section 34-1903, 34-1904 and 34-1908. The law requires that the ordinary shall have the ballots printed in such words as will enable the voter to express his choice on any question or matter which may be submitted at the election. The general rule is that if a voter marks his ballot in accordance with the instructions and in such a manner as to fairly indicate his intention as to his choice of candidates or issues, the ballot should be counted; otherwise, it should not be counted. Of course you realize that what is said in this letter is purely unofficial and binding upon no one, for the reason that the statutes prescribing the duties of the Attorney General do not permit him to render official opinions upon questions of this kind except upon the written request of the Governor. May I suggest that if any particular problem arises among the election managers or persons counting the ballots as to whether some particular ballot should or should not be counted that these officials consult with the county attorney, as he is in a position to determine the facts of each case and apply thereto the applicable statutes. B-7 GUARDIAN AND WARD-County attorney must be appointed on lunacy commission. August 6, 1940 Honorable Horace Bell Attorney at Law Blakely, Georgia In the absence of Mr. Arnall, who is out of the State on official business, I wish to acknowledge your letter of the 29th ultimo requesting a rUling from the Attorney General upon the construction of Code Section 49-604 with particular reference as to whether or not the County Attorney has preference over the Solicitor of the City Court with respect to service on lunacy commissions. I think that your question has been answered by our Supreme Court in the case of Templeman v. Jeffries, Ordinary, 172 Ga. 895, in which case it was held that where there is a County Attorney of a county he must be appointed upon the commission. Of course, you realize that what is said in this letter is purely unofficial, for neither the Attorney General nor any of his assistants could render you an official opinion upon the question asked. I think, however, as stated above that the case cited puts at rest any doubt about the construction of this Code Section as it relates to your question. PROFESSIONS; NURSES-Registration fees. August 13, 1940 Miss Carrie M. Spurgeon Educational Supervisor Board of Examiners of Nurses for Georgia In the absence of Hon. Ellis Arnall, Attorney General, from the office, your letter of August 5th addressed to him has come to my attention. You request an opinion on the matter of including in the Board Rules and Regulations the following items: "1. The registration fee of $10. 00 (ten dollars) is not refundable, and application for registration cannot be withdrawn if the application has been completed and the applicant has qualified for registration. "2. If an applicant does not complete her registration papers.or does not qualify for registration, a part of the original fee shall be refunded, and a minimum of five dollars ($5. 00) retained in the Treasury of the Board as a clerical fee. "3. A certification fee of $2.00 (two dollars) shall be charged of registrants whose registration is certified in writing for any reasons. " Section 89-702 of the Georgia Code of 1933 provides as follows: "Any public officer who shall charge or take fees not allowed by law, or for service not performed, shall, on conviction or proof thereof, be dismissed from office. " Section 84-1007 of the Code provides: "All graduate nurses making application for registration as graduate nurses under this chapter shall deposit with the Joint-Secretary, at the time of making such application, the sum of $10. 00 as an examination or registration fee." Section 84-1008 after prescribing the qualifications of applicants for registration as graduate nurses, provides in part: B-8 "All qualifications of the applicant shall be determined by the State Board of Examiners of Nurses for Georgia, which is empowered to prescribe such examinations for the applicants as will best test their fitness and ability to give efficient care to the sick. " You will note that Section 84-1007 refers to the amount to be deposited by the applicant as "an examination or registration fee." In response to your first question therefore, it would appear that if the Board has determined that the applicant is qualified as prescribed by law and affords such applicant an opportunity to take the examination but the applicant fails to take the examination, or upon taking it fails to pass, the "examination or registration fee" would not be refundable. If however, the Board determines that the applicant is not qualified and does not afford such applicant an opportunity to take the examination, I do not believe the Board would be entitled to retain any part of the "examination or registration fee. " My opinion in this regard is borne out by the fact that in the Act regulating the practice of professional engineering (Acts of 1937, pp. 294 to 310) , the General Assembly provided that the "registration fee" for professional engineers should be $15. 00, $5. 00 of which should accompany the application, the remaining $10. 00 to be paid upon the issuance of the certificate, and if the Board should deny the issuance of a certificate of registration to any applicant, the initial fee deposited should be retained as "an application fee. " Thus the General Assembly clearly distinguished between the application fee and the registration fee, and specifically provided that the application fee should be retained. In response to your third question, I do not believe that the Board of Examiners of Nurses for Georgia has the right to fix by rule or regulation a certification fee of $2. 00 to be charged registrants whose registration is certified in writing where such fee has not been specifically authorized by the General Assembly. For the Board to charge a fee which is not allowed by law would violate Section 89-702 of the Code hereinabove quoted. As pointed out in the case of Walton County vs. Dean, 23 Appeals, page 97, "all officers charging costs, and exacting payment from the pocket of the citizen, must always show the authority of the law to do so. " Section 84-101 of the Code as amended creates the office of "Joint-Secretary, State Examining Boards", which office is to be maintained under the supervision of the Secretary of State and makes it the duty of the Joint-Secretary "to issue certificates upon authority of the Examining Board concerned; to collect all fees required by law in connection with licensing of professions, businesses, and trades, and to remit the same to the State Treasurer. " The fees which the Secretary of State is authorized to charge are specifically itemized in Section 92-3503 of the Code. Accordingly, I am of the opinion that where the Joint-Secretary issues any kind of a certificate upon the authority of the Board of Examiners of Nurses, the fee to be charged for such service would be the amount as prescribed by law in Section 92-3503 of the Code, and no other or additional fee could be exacted under any rule or regulation promulgated by the Board of Examiners of Nurses. B-9 PUBLIC REVENUE-C. C. C. enrollee not exempt from poll taxes. August 14, 1940 Honorable Frank A. Dennis Eatonton, Georgia I am pleased to acknowledge yours of the 13th instant with further reference to our conversation of day before yesterday with reference to the powers, duties and authority of the Board of Registrars of your county. You state that the registrars have requested you to find out whether a young man, now 24 years old, who has been in the CCC camp and has just registered this year for the first time is exempt from the payment of poll tax for the past three years; that this young man was told while he was in the CCC camp that enrollees in such camp were exempt from poll tax. I have carefully read Sections 584 through 584 q of Title 16 (Conservation) of the United States Code Annotated in which the act creating the Civilian Conservation Corps is codified. Neither this statute, nor any other Federal statute, which I am able to find deals with any exemption from poll tax in favor of enrollees in CCC camps. In fact, I am quite sure that this is a subject with which the Federal Congress has no power to deal. As stated to you in our conversation the other day, the exemptions provided in the statute levying poll taxes extend only to "blind persons" and "female inhabitants of the State who do not register for voting." Section 92-108, Georgia Code Annotated. All other persons who are inhabitants of this State and who are between the ages of 21 and 60 must pay a poll tax. Consequently, I am of the opinion that there is no exemption in favor of persons who are within these age limits by virtue of the fact that they are enrollees of a CCC camp. You requested my construction of the law with reference to the diE qualification of persons who have been convicted in Federal Courts on liquor charges and I was unable to find the opinion on this subject for you at the time. I am herewith inclosing the same, feeling that it may be of some assistance to you and your Board of Registrars. This opinion, while unofficial, seems to state the correct rule. Before closing I would like to request a favor of you. In this morning's mail to Mr. Arnall there was a letter from Miss Fanny Lee Leverett under date of August 12, 1940. She reviewed the whole situation in your county in much the same language and with quite as much concern as did you and Mrs. Dennis. She also referred to the fact that the unofficial opinion which was written by me in Mr. Arnall's absence was being quoted or misquoted to sustain various arguments and purposes. The favor I would like to request of you is that you get in touch with Miss Leverett and give her the benefit of your conversation with me and tell her that I do not wish the opinion that I wrote to be construed as condoning any of the evils about which she writes, and that the election laws of this State certainly do not condone the same. My position is that since this furor has arisen in the absence of Mr. Arnall, I do not want either his or my name injected into the controversy-certainly no more so than has been done already. My letter to Mr. Batchelor, as explained to you, was written under circumstances where I was entirely ignorant of all the facts, and certainly was not intended to be used for the purpose of sustaining the position of declaring that disqualified voters whose names appear on a list prepared by the registrars are, by virtue of being thus listed, qualified to vote in elections by the people. You might also tell Miss Leverett that as soon as Mr. Arnall has returned to the office her letter shall receive his immediate attention. B-10 One thing more: You refer to the fact that your attorney had advised you that where a person had not paid his poll tax it is not necessary to give such person notice before the registrars are empowered to remove his name from the list of registered voters. Our Supreme Court in the case of Austin et al v. Dozier et al, Registrars, 176 Ga. 892 held: "Under the civil code (1910), section 59, one who has not paid all taxes which have been required of him is not entitled to vote, and therefore does not come under Section 65, which requires that one day's notice shall be given before the registrars are empowered to remove his name from the list of registered voters. " I wish also to refer you to the case of Turk v. Royal, 34 Ga. App. 717 (8) in which it was held: "If the name of a person who is not a qualified voter is entered upon the list of registered voters, he would not become a qualified voter. While the managers of the election would be authorized to receive a ballot from him, on a contest of the election the vote would not be counted. " PUBLIC REVENUE-Sheriff's fees for nulla bona on executions. August 1, 1939 Honorable J. H. Holcomb County Commissioner Canton, Georgia This will acknowledge your request for an opinion upon the following questions: 1. For a nulla bona entry on a tax ft. fa. made by the sheriff, is the sheriff entitled to a fee? If so, amount of fee. 2. Who is required by law to pay such nulla bona fee? The answer to the first question is found in Code Section 24-2823, which section enumerates the fees to which a sheriff is entitled, and included in the scale of fees is the following: "Search and return of nulla bona . . . $1. 00. " So this is the fee to which a sheriff is entitled for making a search and return of nulla bona on a tax ft. fa. The second question is answered by Code Section 92-8002 which reads as follows: "Tax collectors shall be allowed a fee of 50 for issuing tax executions; but no tax collector, sheriff or constable shall receive costs on said executions, unless the same shall be collected from the defendant. " In the case of Keen v. Rouse, 44 Ga. 601, it was held: "A sheriff is not entitled to costs on tax ft. fas., whether for State or county taxes, unless the same be collected from the defendants. " Judge Montgomery writing the opinion for the Court cited Section 890 of the Code (Now Section 92-8002) as authority for the ruling of the Court and said: "Section 890 of the Code provides that no sheriff shall receive costs on any tax ft. fa., unless the same be collected from the defendant. The necessary inference is, if be fails to collect them from the defendant, the service must go unawarded. " This case has never been overruled or modified, so far as we are able to find. B-11 Of course, you realize that this opinion is purely unofficial and binding upon no one. I think, however, that the questions asked are so definitely answered by these Code Sections and this decision of our Supreme Court that there can. be no longer any doubt as to the correct answer thereto. SOCIAL WELFARE; COUNTY BOARDS OF PUBLIC WELFARE-Eligibility of members. August 7, 1940 Honorable Braswell Deen, Director State Department of Public Welfare You have requested of the Attorney General an opinion as to whether the proviso of Section 10 of the Welfare Reorganization Act of 1937 (Georgia Laws 1937, page 355) which reads "provided that no elected officer of the state or any subdivision shall be eligible for such appointment, " or any other pertinent statute, serves to disqualify a member of the County Board of Education, or a member of a local school district board of trustees, or a member of the County Board of Tax Assessors, or a jury commissioner of a county, or a city manager of a city elected by the Commissioners of such city, or a clerk to the county commissioners, or a city council elected by the County Commissioners, or the City Councilmen or other governing body, or a member of the State or County Democratic Executive Committee, or a member of any other State or county committee of any other political party from being appointed as a member of the County Board of Public Welfare of any county. Mr. Arnall, the Attorney General, is out of the city for several days and in his absence I take pleasure in answering this inqUiry. The question submitted, as it relates to city manager and city councilman may or may not involve various provisions of city charters which are peculiar to the locality in which the same are operative, and, therefore, without having information as to which particular city council or city manager of a particular city you refer to this phase of the question cannot be definitely answered. Aside from the provision quoted above there is another statute in this State which is pertinent to the question. I refer to Code Section 89-103 which reads: "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 such special enactment, " and to Section 92-6907 relating to County Boards of Tax Assessors which reads: "The members of the board during the time they hold their office and for one year thereafter shall be ineligible to hold any State, county or municipal office, etc. " A member of a County Board of Education is a county officer. Stanford v. Lynch, 147 Ga. 518; Cooper v. State, 101 Ga. 783; Coleman v. Glenn, 103 Ga. 458. And although under the statute prescribing their method of selection members of the County Boards of Education are selected by the grand juries of each county and are not elected by popular vote (Code Section 32-902), it is unnecessary to determine whether this method of designation makes these officers fall within the meaning of the words "elected officer" as contained in Section 10 of the Welfare Reorganization Act of 1937, for so long as such members continue to B-12 hold office as members of said boards they are disqualified from holding any other county office. This being true, they would not be eligible under Code Section 89-103 for appointment as members of the County Board of Public Welfare, as such an office is likewise a county office. With regard to the eligibility of a local school district trustee for appointment, I beg to advise that under Code Section 32-1104 provision is made for the election of local school district trustees by a popular vote of the qualified voters residing in the respective school districts. They are, therefore, clearly elected officers of political subdivisions of the State and are, therefore, ineligible for appointment as members of the County Board of Public Welfare. Under Code Section 92-6903 members of County Boards of Tax Assessors are "appointed" by the Board of County Commissioners, or by a majority thereof, or by the ordinary in counties which have no Board of County Commissioners. But whether such officers be considered as "appointed" or "elected" the provisions of Sections 92-6907 and 89-103 quoted above would serve to disqualify them from serving as members of the County Board of Public Welfare. Jury commissioners, under the provisions of Code Section 59-101, are "appointed by the judge of the Superior Court. " These officials are clearly appointed, as distinguished from elected officers, and accordingly they do not come within the provision of Section 10 of the Welfare Reorganization Act of 1937. Although I can find no opinion or expression of the courts upon the question, I am of the opinion that these officials are county officers and under the terms of Code Section 89-103 they are prohibited from holding any other county office at the same time. In fact, Code Section 59-102 expressly prohibits a jury commissioner from serving as a member of the Board of Roads and Revenue or as a County Commissioner. A city manager of a city "elected" by the commissioners of such city is an "elected officer" of a political subdivision of this State and would be disqualified under the terms of Section 10 from being appointed as a member of the County Board of Public Welfare. In counties where the county manager form of county government as set out in Chapter 23-9 of the Code is in effect, the city manager is made by law the ex officio clerk of the board, but the board has the authority to "elect a deputy clerk if they deem it advisable. " (Code Section 23-909.) Assuming that the clerk referred to by you is a clerk in a county having this form of county government, I am of the opinion that he would be ineligible for appointment as a member of the County Board of Public Welfare. While I have been unable to find any decision of our Courts construing the phrase "elected officer" I am of the opinion that the General Assembly used this term in its broad and general sense and intended that it should embrace not only those officers elected by the qualified voters under our general election laws, but also be inclusive of those officers who are selected by a vote of a group or body created by law in accordance with statutes providing for selection of officers in this manner. That is to say, the term as used in Section 10 connotes selection by a group of persons having such power rather.than designation by one person exercising such power as a prerogative of the executive branch of the Government. I am fortified in this position by decisions from many foreign jurisdictions which hold, in substance, that the word "elected" means a choice or designation for office by a majority or plurality of the people or by an official group or body. See Meadow v. Thomas, 170 SE 110, 205 NO 142. Accordingly, I am of the opinion that a clerk or deputy clerk of the Board of County Commissioners is ineligible for appointment as a member of the County Board of Public Welfare. B-13 The same ruling would apply to members of a city council "elected" by the County Commissioners. As stated above, I am not familiar with the charters of the various cities and municipalities of this State, but if such charters provide t'or the election of city councilmen either by the people in an election, or by selection at the hands of some other official group or body by a majority or plurality vote such officers would be disqualified to hold office as members of the County Board of Public Welfare. Members of the State or County Democratic Executive Committees, although they may be "elected" by the voters of their party or otherwise designated are not "officers of the State or any subdivision" thereof, and Section 10 of the Welfare Reorganization Act of 1937, nor any statute of which I am aware, serves to disqualify such persons from being appointed as members of the_County Boards of Public Welfare of the various counties. VERDICT AND JUDGMENT; DORMANCY OF JUDGMENTS-Fact of entry of nulla bona, not the truth of it, keeps fi. fa. from becoming dormant. August 5, 1940 Honorable Hartwell L. Williams Attorney at Law Baxley, Georgia Mr. Arnall will be away from this office on official business for several days and in his absence I wish to acknowledge your letter of the 31st ultimo requesting an unofficial opinion as to the dormancy of a tax fi. fa. for 1930 taxes, where it appears that A returned 100 acres of land for taxes for the year 1930 and in 1937 the deputy sheriff made an entry of nulla bona in terms of the law and this entry was recorded on the general execution docket in the clerk's office, and the sheriff levied on this same 100 acres of land for the 1930 taxes in 1940. I note that it is your contention that this tax fi. fa. is dormant because, as you contend, "a false entry could not keep a tax execution alive. " It appears that our Supreme Court in the case of Prendergast v. Wiseman, Administratrix, 80 Ga. 419 has answered this question. In said case the contention was made that the entry of the sheriff was false and therefore did not prevent the fi. fa. from becoming dormant. In answering this contention Chief Justice Bleckley, writing the opinion for the Court referred to Code Section 29-14 (now Code Section 110-1001) and said: "The fact of an entry by the proper officer, and not the truth of it, is the material matter with respect to keeping the fi. fa. from becoming dormant. If the officer makes a false return and thereby any person be injured the redress for the injury is against the officer; and whether it be sought or not, the effect of the return in keeping the fi. fa. alive is the same. There is no intimation anywhere in our statutes that a return properly made must be true in order to be effective in preventing the dormancy. " This case was followed in the case of Long v. Wight, 82 Ga. 431. Of course, you realize that what is said in this letter is purely unofficial. I would suggest that you read these two cases, as they perhaps decide the question about which you have written me, when construed in connection with Code Sections 110-1001 and 92-7702. B-14 INDEX TO OPINIONS OF EMIL J. CLOWER, ASSISTANT ATTORNEY GENERAL Page ELECTIONS (Code Title 34) Candidates for certain offices must file campaign expenses____________ B-3 Registrars list of voters, when filed; what names entered; disqualification by non-payment of poll taxes__________________________________ B-3 Split tickets, when counted_____________________________________________ B-6 GUARDIAN AND WARD (Code Title 49) County attorney must be appointed on lunacy commission____________ B-7 PROFESSIONS (Code Title 84) Nurses' registration fees________________________________________________ B-7 PUBLIC REVENUE (Code Title 92) C. C. C. enrollee not exempt from poll taxes___________________________ Sheriff's fees for nulla bona on executions_____________________________ B-9 B-10 SOCIAL WELFARE (Code Title 99) County Public Welfare Board members' eligibilitY---------------------- B-11 VERDICT AND JUDGMENT (Code Title 110) Fact of entry of nulla bona, not the truth of it, keeps fi. fa. from becoming dormant __ -----------------------_____________________________ B-13 PART IV OPINIONS OF DUKE DAVIS Assistant Attorney General of Georgia C-3 COURTS; ORDINARIES-May hold court on legal holiday. .July 1, 1939 Ron. Oswald R. Eve Ordinary, Richmond County Augusta, Georgia In compliance with my conversation with you over the phone today from the Governor's office, I am writing you confirming our conversation in reference to the holding of a court of ordinary on a legal holiday. I am of the firm opinion that business of a court of ordinary transacted on a holiday is legal. In order for transaction of court business on a holiday to be void, it would be necessary that it be made so by statute. There is no statute in Georgia prohibiting the holding of court on a legal holiday. In the case of Hamer v. Sears, 81 Ga. 288 (2) , the court held: "A judgment rendered on the 4th day of .July is not void. Although that day is a legal holiday and some things such as noting and protesting of notes, etc., may not be done upon it, there is no statute prohibiting the transaction of business by the courts on that date. " (Emphasis supplied.) The holding of this proposition was again followed by the Supreme Court in the case of Biggers v. Hall, 186 Ga. 886. In holding that business of the court of ordinary can be legally held on a holiday, I am not unmindful of Code Section 24-2104 of the Code of 1933, which provides: "His office (Ordinary) shall be open for the transaction of all business at all times except Sundays and holidays; but no will shall be admitted to record or letters testamentary of administration or guardianship, or dismissory, or any order for the sale of real estate, shall be granted except at a regular term of said court. " This Section is directory upon the Ordinary and is not mandatory. Besides, this section has reference to the transaction of the business of his office. The business of his office is to be distinguished from the business of the Court of Ordinary. There is nothing in this section or elsewhere in the Code which would prevent the holding of a court of ordinary on a legal holiday. And the business transacted on a legal holiday by a court of ordinary is legal. COURTS; SUPERIOR-Solicitors General not required to give bond. December 18, 1940 Hon. W. Y. Atkinson Solicitor General Coweta Circuit Newnan, Georgia On the question of the Solicitor General giving Bond in connection with his office, the search led to some very interesting facts. Knowing that you would be interested in this I am undertaking to write rather fully the results of my search. That provision of the Code which we discussed, namely; "Giving Bond and Surety as is required of the Solicitor General who by virtue of his office is Attorney General" is a provision of long standing. C-4 In 1789 the Judiciary Act provided for an Attorney General and one Solicitor General who seem to have been of equal dignity, performing certain duties within the Circuit to which assigned. The Judiciary Act of 1797 continued this previous arrangement by providing for an Attorney General and two Solicitor Generals, one being assigned to each of the three Judicial Circuits. There seems to have been no distinction between the Attorney General and the Solicitor General as to authority, powers and duties. They were simply prosecuting officers. The Attorney General had no duties to perform in connection with the operation of the State Government except those of prosecuting criminals. This arrangement was sanctioned by the Constitution of 1798 which provided for the election of the Attorney General and Solicitor General by the General Assembly. There was no provision for determining which of the State 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. When the Constitution of 1868 was adopted the Attorney General was made a Constitutional officer. He then became Attorney General-in-Fact, and the legal advisor of the Governor and other Departments of State Government. The provision of the Code of 1861 that the Solicitor General of the Circuit which embraced the seat of the State Government, should be Attorney General, was contained in Section 341 of that Code. Section 342 of the Code of 1861 required the Solicitor General of the Circuit in which the Capitol was located, and who was ex officio Attorney General, to give Bond in the sum of $10, 000. 00. Section 347 of the Code of 1861 was identical with Section 4922 of the Code of 1910, which Section is the same in the Codes of 1873, 1882 and 1895. So this seems to be where the amount of the Bond was fixed and of whom it was required. That is, the Solicitor General in wh.ose Circuit the seat of the State Government was located. It seems to me that the adoption of the Constitution of 1868 and the Constitution of 1877 providing for an Attorney General superseded the provision of law as to a Solicitor General of the Circuit in which the seat of Government was located, acting as Attorney General. The requirement of bond of the Solicitor General, being for his duties as Attorney General and not as Solicitor General, naturally was superseded when the Solicitor General was relieved of these duties and consequently would not be required to give any bond. The codifiers of the 1933 Code no doubt recognized this fact. The 1933 Code Commission was empowered by legislation as follows: "Said Commission shall have authority to determine the form and manner in which all manuscripts shall be submitted so as to secure an accurate, concise, plain and comprehensive revision and codification of the laws of this State; and to that end said commission may require that all useless, contradictory, and confusing language shall be omitted, changes in arrangements, wording and phraseology made, statutes digested, and inconsistencies reconciled. " The Commission rightfully judged that this provision requiring Solicitors to give bond should no longer be carried in the Code and, therefore, eliminated it. C-5 CREDIT UNIONS; SMALL LOANS-Under supervision of Superintendent of Banks. Hon. Maurice M. Goldman December 5, 1939 Assistant Attorney General Boston, Mass. Your letter of November 29, 1939, addressed to Hon. Ellis G. Arnall, Attor- ney General, was referred to me by him for reply. It is our pleasure to give you what information we have concerning your problem. We have in this State what is known as a Small Loan Law. This is set forth in Chapter 25-3 of the Code of 1933. The loan business under this Act is under the supervision of the Banking Department, and the Act provides for the charging of 1!% on loans. To charge a greater amount than this subjects the lender to the forfeiture of principal and interest. In addition, it is a misdemeanor to vio- late any of the provisions of the Small Loan Act. So far as I am informed, this law is being efficiently administered by the Banking Department of Georgia. There has been no complaint as to its operation to an extent that would require action upon the part of the public. The enforcement of the laws in the manner in which you are proceeding is vested in this State in the Solicitors General of the State and not in the Attorney General. The State is divided into judicial circuits and each circuit has a Solicitor General. I have not been informed of any proceedings in court other than crimi- nal proceedings for violation of the Small Loan Act. These prosecutions have been comparatively few. The finance companies do not all operate under the Small Loan Act. It is doubtless true that there are conditions in this State in reference to automobile financing as are outlined in your letter. In conditions of this kind, where they are not operating under the Small Loan Act, they would be governed by our interest and usury laws. The penalty for usury in this State is the forfeiture of the interest over and above the legal interest rate as fixed by law. The conditions in reference to fire, theft and collision insurance in automo- bile financing are regulated by the Insurance Department. It is my unofficial information that there are some instances in which the same conditions are practiced as outlined in your letter. So far the Insurance Commissioner has been able to handle these matters without any court proceeding. The Attorney General's office has not rendered any opinions as to the legality of the methods outlined in your letter. The departments of the State government mentioned above have so far been able to handle these matters without calling on the Attorney General for an opinion in reference thereto. The Attorney General is grateful to you and your Attorney General for your expression of good wishes, and we assure you that we are happy to have had the opportunity of this communication between our offices. CRIMES AND PUNISHMENT-"Bug game" is a lottery and unlawful. October 11, 1939 Hon. John E. Matthews Chief of Police LaGrange, Georgia In reference to the so-called "bug game" which you are having trouble with in LaGrange, I beg to advise you that the prosecutions here in Atlanta were had mostly under Section 26-6502 of the Code of 1933 which reads as follows: C-6 "Any person who by himself or another shall keep, maintain, employ or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing shall be guilty of a misdemeanor." The finding of the books and paraphernalia on a person is circumstantial evidence as to his guilt. Of course, the question will arise in each case as to whether or not the circumstantial evidence is sufficient to sustain the conviction or not. I have examined quite a number of cases which have been carried to the Court of Appeals and in each of these cases the court held that where the tickets were found in the possession of a person which indicated that the tickets had been sold that the evidence was sufficient to sustain the conviction. In these cases this was indicated by the defendants having been found in possession of the yellow tickets or the carbon copies. This showed that the original ticket had been issued to some person. I am citing you some of these cases I have examined and it seems that the only evidence necessary to sustain the conviction was the showing as to how the game was played and the possession of the yellow sheets or carbon copies of the tickets sold. These cases are as follows: Guthas v. State, 54 Ga. App. 217 (2) ; Coppedge v. State, 59 Ga. App. 358; Sable v. State, 48 Ga. App. 174; Theweat v. State, 48 Ga. App. 389; Moore v. State, 54 Ga. App. 218; Jenkins v. State, 58 Ga. App. 377; Wood v. State, 58 Ga. 412; Turk v. State, 55 Ga. App. 732; Flynn v. State, 52 Ga. App. 382; Stages v. State, 48 Ga. App. 785; Earley v. State, 57 Ga. App. 184; Lewis v. State, 57 Ga. App. 340; Rousome v. State, 53 Ga. App. 490. CRIMINAL PROCEDURE-Indeterminate sentences. May 23, 1939 Hon. Clem E. Rainey Chairman, State Prison & Parole Commission In compliance with your request, I have investigated the statute11 of Alabama, North Carolina, South Carolina and Tennessee to determine whether or not they have an indeterminate sentence law in those states. Section 5268 of the Alabama Code requires judges to impose an indeterminate sentence in each felony case. Section 5270 of the Alabama Code provides that at the expiration of the minimum sentence, the prisoner shall be paroled unless in the discretion of the paroling powers the prisoner could not be safely trusted to go at large in society. In North Carolina, Sections 7738 and 7748 (t) of the Code provide for an indeterminate sentence somewhat similar to the Alabama law but not as strongly mandatory as the Alabama law. In North Carolina it is left more to the discretion of the paroling powers than it is in Alabama. In Tennessee they do not seem to have an indeterminate sentence law, but power is vested in the Commissioner of Institutions to parole a prisoner after he has served the minimum sentence fixed by law. In South Carolina they have no indeterminate sentence law. However, the Judge and the Governor have the right to suspend sentence for a definite length of time. This is left largely to the discretion of the Judge and the Governor as to when and to what extent the sentence is suspended. C-7 CRIMINAL PROCEDURE-Rewards by the Governor, when authorized. February 16, 1939 Hon. E. D. Rivers Governor I have before me a letter of February 9, 1939, addressed to you by a member of the Atlanta Police Department in reference to the above stated matter and on which you ask my advice. The law in reference to the offering of rewards is contained in Section 27-101 of the Code of 1933 which is in part as follows: "The Governor shall, in his discretion, offer, and cause to be paid, rewards for the detection or apprehension of the perpetrator of any felony committed within this State, such reward not to exceed the sum of $250. 00 in case of felonies not capital, and not to exceed the sum of $500. 00 in capital felonies; but no such reward shall be paid to any officer who shall arrest such person in the regular discharge of his duty, by virtue of process in his hands to be executed, nor to any person who has arrested the offender previously to the publication of the reward. " (Emphasis supplied.) The contents of the letter addressed to you does not disclose that this officer would be entitled to the reward. I am not familiar with the facts and the facts are not fully disclosed in this letter to the extent that you will be authorized to pay the reward, so I suggest until such showing is made as would entitle the reward to be paid let the paying of the reward be declined. ELECTIONS; QUALIFICATIONS OF VOTERS-Constitutional requirements. August 8, 194Q Hon. E. D. Rivers Governor I am pleased to acknowledge receipt of your request for unofficial information as to the qualifications one must have in order to vote in the State of Georgia. The Constitution provides that all persons who are citizens of the United States and have reached the age of 21 years and are not laboring under any of the disabilities named in the Constitution and who possess the qualifications provided for by the Constitution, shall be entitled to register and vote at any election by the people. But no soldier, sailor or marine in the service of the United States shall acquire the right of an elector by reason of being stationed on duty in this State. The Constitution further provides that to entitle a qualified person to register and vote in this State, he shall have resided in the State for 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 (the poll tax in this State being $1. 00 per year) that he may have had an opportunity of paying agreeably to law, and this payment must have been made at least six months prior to the election at which he offers to vote. In addition to the above, a person must possess at least one of the following qualifications: (1) He must have been honorably discharged from the land or naval forces of the United States in the Revolutionary War, the War of 1812, the War with Mexico, any war with the Indians, the War Between the States, or the War with Spain, or shall be a descendant of one of such persons: (2) Must be a person of good character and understand the duties and obligations of C-8 citizenship under the Republican form of government; (3) Must be able to correctly read in the English language any paragraph of the Constitution of the United States or of this State, and correctly write the same in the English language when read to him by any one of the registrars; (4) Must be the owner of forty acres of land in the State of Georgia upon which he resides, or the owner in good faith in his own right of property assessed for taxation at a value of $500.00. FOOD AND DRUGS; MILK CONTROL-Ice cream mix dealers subject to license. April 19, 1939 Honorable C. G. Duncan Director of Milk Control Board Atlanta, Georgia Your inquiry addressed to Honorable Ellis Arnall, Attorney General, inquiring as to whether or not ice cream mix dealers in Georgia are required to be licensed by the Milk Control Board of Georgia, is acknowledged. Section 42-533 of the Code of 1933, Supplement, provides as follows: "In any milk shed where the proyision of this law once applied it shall be unlawful for any producer, producer-distributor store, or distributor to produce, sell, buy, handle or distribute milk unless such person is duly licensed as provided by this law. It shall be unlawful for any such person to buy, sell, handle or distribute milk which he knows or has reason to believe has been previously dealt with or handled in violation of any of the provisions of this law. " In this connection I desire to call your attention to the definition of milk as defined by the Milk Control Act (Ga. L. 1937, p. 247) which is given as follows: "Milk includes raw milk, pasteurized milk, cream, buttermilk, flavored milk, ice cream mix and recombined milk. " Therefore, it naturally follows that ice cream mix is clearly intended to be regulated by the Milk Control Law and any person who produces, sells, buys, handles or distributes this product within any milk shed would have to be licensed by the Milk Control Board before so doing. Any person who does so without being licensed would be violating this Milk Control Law. FOOD AND DRUGS; MILK CONTROL-License fees. October 18, 1939 Hon. C. G. Duncan Director State Milk Control Board I am pleased to acknowledge receipt of your inquiry of October 2nd as to whether or not the license fees provided for by law are due to be paid on all milk received at the plant of a producer-distributor, whether sold as fluid milk or processed into butter, cheese, ice cream, or any other by-product of fluid milk. This question I think can be answered by a consideration of the Act creating the Milk Control Board (Acts of 1937, p. 247) . This Act, under Section 2, defines a producer-distributor as follows: "Producer-distributor means any person producing milk and selling all or part thereof to one or more stores or consumers. This Act shall not be C-9 construed to apply to persons producing and selling all milk so produced on a non-commercial basis or to one or more processors only. " (Emphasis supplied.) This Act also defines a processor as being a person who buys milk for the purpose of processing into products or by-products of milk but not for resale as fluid milk. It seems that where a producer-distributor converts a portion of the milk produced or received by it into products or by-products of fluid milk, that it enters the filed of a processor. But Section 11 of the Milk Control Law levying the license tax provides as follows: "Each producer-distributor shall pay a fee not in excess of'two cents for each one hundred pounds of milk produced or received by him from any producer, producer-distributor or distributor. " (Emphasis supplied.) If a producer-distributor is so classed under the law, it seems to be clear under the provisions just quoted that all milk produced or received by it would be subject to the license tax. To construe the provisions of law otherwise would be in effect the granting of an exemption from taxation of that portion of the mik produced which is not sold as fluid milk. Taxation is the rule and exemption is the exception, and it is well settled that exemptions are not favored. This proposition is well settled in this State and is best expressed by the court as follows: "It is the cardinal rule in the construction of grants by the public that nothing passes by implication; that statutes under which special privileges, amongst which is exemption from taxation, are claimed by a corporation will be strictly construed in favor of the public, and the exemption will not be held to be conferred unless the terms of the grant clearly and distinctly show that such was the intention of the Legislature. " Mayor and Council of City of Macon v. Central Railroad and Banking Company, 50 Ga. 621 (1) ; Athens City Water Works Co. v. Athens, 74 Ga. 413 (1) ; Atlanta Street Railroad Co. v. Atlanta, 66 Ga. 104 (3) ; Mundy v. Van Hooze, 104 Ga. 292 (2) ; State Revenue Commission v. Brandon, 184 Ga. 225. I am of the opinion that the statute under which this license tax is levied is clear that the tax is due on all milk produced or received, whether the same is actually sold or not. But even if the statute was ambiguous in this respect, the well settled proposition as to exemptions I think would remove the ambiguity in favor of the State collecting the license tax on all of the milk produced or received. GAME AND FISH-Owners of private ponds exempt from license when fishing in their own ponds. September 29, 1939 Honorable Charles N. Elliot Director, Division of Wild Life I am pleased to acknowledge receipt of your letter of September 29, 1939, inquiring as to whether or not the State Wild Life Rangers would have the right to investigate the violation of fishing laws where a so-called private pond is being fished by various persons upon invitation of the owner. It should be first determined whether or not a pond properly comes under the exception in reference to fishing in private ponds. Section 45-510 of the Code of 1933 prohibits any person from placing any dam or other obstruction in any river, creek or fresh-water streem unless provision is made for the free passage C-10 of the fish around such obstruction. This code section excepts dams for milling or manufacturing purposes. But as to all other dams or obstructions they are prohibited unless passage way of the fish is permitted as before stated. Under the Act approved March 30, 1937 (Georgia Laws 1937, page 675) all lure fishermen are required to procure fishing licenses whether they are fishing in their own county or in a county other than their residence. Fishing with natural bait is permitted in one's own county without a license but this 1937 Act does not permit the seining or netting the fish without the payment of alicense except owners of private ponds do not have to have the required license. The Act of 1937, section 7, provides as follows: "Provided that the owners of private ponds shall have the right to take fish therefrom without procuring any license and may take them in any manner whatever. A private pond is defined to be any pond privately owned or any stream of this State which goes dry of water during any season of the year." It will be readily seen that the exemption from the procurement of fishing license is only to owners of private ponds. Certainly this could not be construed so as to exempt persons who are not owners of private ponds even though they may be invited to fish in such private ponds by the owner. So in any given case it is first to be determined whether or not a pond is a private pond as defined by the statute. If the pond is on a stream which does not go dry of water during any season of the year it would not be a private pond and even the owner would not be authorized to take fish from the~;e without the procurement of a license, where he would otherwise be subject to the payment of a license did he not own the pond. But granting for the sake of argument that there is no question that it is a private pond as defined in the statute, the law does not grant to the owner the privilege of inviting other persons who are owners to take fish therefrom without complying with the law governing fishing in this State. INSURANCE-Company doing business on military reservation in this State subject to State insurance laws and regulation. February 28, 1939 Hon. W. B. Harrison Insurance Commissioner I have your request for a ruling in reference to an insurance company doing business exclusively on military reservations, and as to whether or not such activities would be subject to regulation. The Federal Constitution provides that Congress may exercise exclusive legislation in all cases over all places purchased by the consent of the Legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dock yards and other needful buildings. Insurance on military reservations has not, so far as I know, been the subject of legislation by Congress. The Georgia law in reference to ceding jurisdiction to the United States is contained in Section 15-302 of the Code of 1933. This provides in part as follows: "The State retains its civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens of this State." Georgia, in ceding jurisdiction to the United States for military posts or reservations, cedes only the jurisdiction to enact such laws, rules and regulations for the transaction of its business. Therefore, any person doing an insurance busi- C-11 ness on any government property or reservation would not be exempt from the Georgia laws regulating an insurance business. INSURANCE-Contractor's bonds must be countersigned by agent resident in the county. February 20, 1939 Hon. A. R. Wright Deputy Insurance Commissioner I have before me your inquiry as to whether or not the Assistant Manager of an insurance company, who has paid the occupation tax of $100. 00, could countersign a bid bond or a final construction bond in lieu of the countersignature by a resident agent in the county where the work is to be done. In this connection I beg to call your attention to Code Section 56-508 which is in part as follows: "Provided, that no contract bond shall be issued by any company except through an agent resident of the county in which the work under contract is located, if the company has an agent resident in the county in question. " Therefore, it naturally follows that where a company has a duly licensed agent residing within the county where work under contract is located, it is authorized to issue a contract bond only through such resident agent. And no other agent, whether he be a general agent, assistant manager, vice president or president, is authorized to issue such a bond in a county having a resident agent of the company. If there has been any ruling heretofore made by the Law Department to the contrary, no present member of the Department recalls anything about it, and, therefore, if such ruling has been issued, it is hereby revoked. INSURANCE-Fraternal society actually engaging in the insurance business is subject to insurance laws. September 21, 1939 Hon. Clarence W. Walton Attorney at Law Ft. Valley, Georgia Re: United Brothers and Sisters of Aid. I am pleased to acknowledge your letter of September 13th regarding the above stated matter. I observed when the Insurance Department submitted this matter to me that you had devoted yourself to a very thorough study of the law on fraternal societies. I would consider it a great undertaking to convince you that you had reached erroneous conclusions as to the law. I can only give you my own personal views on this question. I had the entire file of the Insurance Department before me at the time I wrote the letter which you refer to in your letter, and of which Mr. Harrison furnished you a copy. At that time I was convinced that this society was performing a good service and bore the approval of the good citizens of that county. But this fact does not change my opinion as to the construction of the law applicable thereto. The fraternal societies are special favorites of the insurance laws. They are exempted from the usual taxes that other insurance companies are required to pay and they are not required to make a deposit and are not otherwise governed C-12 by the general insurance laws. They are specifically exempted from the operation of insurance laws. But, in order to gain these exemptions, it is necessary that they come under the fraternal insurance laws and operate under these insurance laws. As you have already observed, I concluded in my letter to the Insurance Department that your clients did not come under the provisions of either Chapter 56-17 or Chapter 56-16 of the Code of 1933. Since they do not come under either of these provisions, they could not operate as a fraternal and gain the benefits extended to fraternals under the law. I am not unmindful of the provisions of Section 56-1634. As I construe this section, it merely provides that certain classified societies are not affected by the provisions of Sections 56-1601 to 56-1635, inclusive, of the Code of 1933, and the provisions of those sections shall not apply to these societies classified under this Code section. But this section does not exempt such societies from the operation of the insurance laws. The exemption from the operation of insurance laws to fraternals is granted only to those fraternals which come under the provisions of Chapter 56-16 or Chapter 56-17. I have been unable to find any provision of the law that would exempt societies of this nature from the insurance laws of this state, and the fact that the fraternal laws do not apply to these societies would not lead to the conclusion that they are exempt from the insurance laws. I regret that there is no provision of law by which societies of the nature of your client can operate without violating the insurance laws. Assuring you that the Insurance Department and I deeply appreciate your desire to comply with the law, and will be very grateful for your cooperation in upholding the provisions of the law in reference to insurance. INSURANCE-Licensed company must begin business within two years. February 8, 1939 Hon. W. B. Harrison Insurance Commissioner In compliance with your request for an opinion upon the inquiry of Attorney E. Clem Powers as to whether the Insurance Commissioner might issue a certificate of authority to an insurance company who received a certificate of incorporation to transact the business of fire insurance in the early part of 1936 from the Secretary of State, I beg to advise that under the law the Insurance Commissioner would be without authority to issue a certificate of authority after the expiration of two years. Code Section 56-212 provides as follows: "All the powers and privileges and the certificates of incorporation of insurance companies shall cease and terminate at the expiration of two years from the date of said certificate, if, at the expiration of said two years, said companies shall not have organized and commenced business. " So, if the fire insurance company in question has not organized and commenced business within two years from the date of the certificate of incorporation, the Insurance Commissioner would be without authority to issue a certificate of authority. The letter of Mr. Powers does not give the specific date of the certificate of incorporation, and it may be that the two-year period has not expired. But, if the two years have elapsed without organizing and commencing business, you would be without any authority to issue the certificate. C-13 NOTARIES PUBLIC AND COMMISSIONERS OF DEEDS-Governor may appoint Commissioner of deeds. March 30, 1939 Hon. E. D. Rivers Governor Replying to your inquiry of March 22, 1939, in reference to the appointment of Dr. H. Krause of 4549 South Springfield Avenue, Chicago, as Commissioner of Deeds for the State of Georgia, I beg to advise you that Code Section 71-301 provides: "The Governor shall have power to appoint in other states and territories of the United States commissioners to take and certify acknowledgement or proof of deeds or other conveyances of property in this State, of depositions under commissions or otherwise, of powers of attorney, of wills executed by persons devising and bequeathing property within the State, and of other instruments in writing required to be attested under the laws of this State." Therefore, under this authority of law, you would be authorized to make this appointment. PENAL INSTITUTIONs-Custody of prisoners vested in State Board of Penal Corrections. October 12, 1939 State Board of Penal Corrections Re: John Burns, A-9013. I am pleased to acknowledge receipt of your request for an opinion in reference to the status of the above-named convict. It seems that John Burns was convicted for murder in Screven County and made a motion for a new trial which was affirmed by the Supreme Court. At the May term, 1939, of Screven Superior Court, the trial judge, on May 27, 1939, refused to grant an extraordinary motion for a new trial. And on September 2, 1939, the same trial judge had presented to him a second extraordinary motion for a new trial and on that date passed an order granting a new trial based on the second extraordinary motion for a new trial. Later this convict applied for bail and the State Board of Penal Corrections, on September 11, 1939, passed an order transferring the custody of this convict to the sheriff of Screven County for the purpose of being present at the hearing, and ordered that the prisoner be kept by the sheriff and returned to Clayton County where he was serving upon the completion of said hearing. It further appears that the hearing has been completed and the application for bail has been denied. You are desirous of knowing whether or not this convict should be returned to the State Board of Penal Corrections at this time. There is no question in my mind but that the proper authority to have the custody of this convict is the State Board of Penal Corrections. In the first place, the order releasing the convict to the sheriff specifically provides: "It is further ordered that this prisoner be kept in strict custody of the sheriff all the time and to be returned to Clayton County upon completion of said hearing. " And the law, under Section 70-303 of the Code of 1933, provides in part as follows: "And but one such extraordinary motion shall be made or allowed." (Emphasis supplied. ) Since the new trial was granted on the second extraordinary motion for a new trial, it is clear that this action on the part of the trial judge is void and would C-14 not be binding upon anyone. The trial judge had no jurisdiction or authority to entertain this second extraordinary motion for a new trial, and being without authority or jurisdiction his actions thereunder would be null and void. This being true, the Penal Board would not be in contempt of court in demanding and receiving this convict for the purpose of confining him in the penitentiary of the State. In the case of John Hancock Mutual Life Insurance Co., et al. v. Baskin, et al., 179 Ga. 86, the court held: "Where the pleadings show on their face that the court is without juris- diction of the subject matter or of the parties defendant named therein, any preliminary order or final judgment rendered therein is void, and disobedience of a void mandate, order, or judgment, or of one issued by a court without jurisdiction of the parties litigant, is not contempt of court." Besides, the order granting the new trial, even if not void, does not directly affect the custody of this convict. Therefore, in view of what has been stated above, it is the duty of the State Board of Penal Corrections to take possession of this convict at its earliest convenience and confine him in the penitentiary in accordance with the original sentence of the court. PUBLIC DEFENSE-Naval militia, authority of Governor to organize. September 13, 1939 Major W. F. Hurt Assistant Commandant Riverside Military Academy Gainesville, Georgia Your letter of August 22, 1939, addressed to the Secretary of State, inquiring as to the authority of the State to have a Naval Militia and the authority of the Governor to assign naval rank to members of his Staff, has been referred to this Department for reply. Under Section 86-301 of the Code of 1933, the Governor is authorized, in his discretion, in time of peace, to organize a battalion of naval militia to consist of not less than two nor more than four divisions, to be organized by voluntary enlistment, for the defense of coasts and harbors, which battalion shall be designated as the First Battalion, Naval Militia of Georgia. This section also provides how this battalion is to be officered. Section 86-302 of the Code of 1933 provides thatthe officers and enlisted men of the Naval Battalion shall perform such duty or service as may be ordered by the Governor, and shall be paid the same compensation as provided for like grades in the National Guard when they have not received any compensation from the United States. And Section 86-303 of the Code of 1933 provides that the Naval Battalion shall be considered to correspond to a separate battalion in the National Guard and shall be entitled to the privileges and allowances of such separate battalion. In reference to the authority of the Governor to assign naval rank to members of his Staff, I beg to call your attention to Section 86-103 of the Code of 1933, which provides in part as follows: "In addition, the Governor may appoint, with the rank of commander, an officer who shall be designated as naval aide, to hold office during the C-15 pleasure of the Governor, upon the terms and conditions prescribed above for aides de camp; but no person shall be eligible for the appointment as naval aide unless he shall be a resident of the State and shall have held a commission as an officer of the United States Navy or of the naval militia of Georgia, or shall be a graduate of the United States Naval Academy." And Section 86-104 provides that the aides de camp, which include other members of the Governor's Staff as well as the naval aide, shall perform such duties pertaining to their office as may be required of them by the Governor. PUBLIC HEALTH-Salaries of employees of State Department, by whom fixed. October 18, 1939 Hon. T. F. Abercrombie Director Department of Public Health I am pleased to acknowledge receipt of your letter of October 17, 1939, requesting an opinion as to who fixes the salaries of the personnel of the Department of Public Health. Section 88-111 of the Code of 1933 provides as follows: "Under the direction and supervision of said Board of Health, the Director of the Department may employ such clerks and assistants as may be provided for in an appropriation made for the support of said Department." As to the actual amounts to be paid the various members of the personnel, I am of the opinion that these amounts could be fixed by the Director of the Department under the direction and supervision of the Board of Health. This, however, would be indirectly affected by the action of the Budget Bureau. Section 40-407 of the Code of 1933 provides in part as follows: "Before an appropriation to any spending agency shall become available, such agency shall submit to the Governor, not less than twenty days before the beginning of each quarter of the calendar year, a requisition for an allotment of the amount estimated to be required to carry on the work of the agency during the ensuing quarter, and such requisition shall contain such details of the proposed expenditures as may be required by the Governor. Such requisition shall be approved by the Governor as to all its requests, except such as in the judgment of the Governor may not conform to the provisions of the Act of the General Assembly making appropriations, and as to such exceptions the responsible head of the spending agency shall be notified and shall have the right to be heard by the Governor before final action in the matter. After such final action shall have been taken by the Governor, he shall submit the same to the State Auditor who shall be governed in his control of expenditures by said allotments. " (Emphasis supplied.) This of course means that any department in submitting its budget would set out in detail the personnel and the amount of salary paid to each, but the appropriation made to the department would not be available for the ensuing quarter unless approved by the Governor in the manner provided for under the section of the Code just quoted. The budget for a department so set up cannot be changed during the quarter for which approved except upon the request of the department head and with the written approval of the Governor. C-16 Your inquiry was addressed to Hon. Ellis Arnall, the Attorney General, but he is out of the State on official business, so in the interest of time I am answering your inquiry at'this time. PUBLIC OFFICERS-County treasurer's bond for State funds fixed by State Revenue Commissioner. April 13, 1939 Hon. Downing Musgrove Executive Secretary In reference to the inquiry of Hon. John E. Lee, Ordinary of Brantley County, as to who fixes the amount of the County Treasurer's bond as to State funds which might come into the hands of the County Treasurer, I beg to advise that it is my opinion that this amount should be fixed by T. Grady Head, State Revenue Commissioner. The law with reference to county treasurers makes no specific provision as to bonds for State funds coming into their hands. But Section 89-806 of the Code of 1933 provides in part as follows: "The State authorities shall require of all collecting officers and all officers to hold public money, so far as it relates to moneys or revenues of the State, to give, on or before entering on the duties of their office, appointment or employment, bond with good security for the faithful performance of the duties of their office and faithfully to account for all moneys coming into their hands, together with such other conditions as the law may require as to the official bond of the' particular officer in question. " (Emphasis supplied. ) And Code Section 89-809 of the Code of 1933 provides: "The amount of bonds of collecting officers and officers to hold public moneys shall be in the amount fixed by the proper authority unless the amount be fixed by existing general laws, and shall be approved by the proper authority and filed as required by law. Except as herein otherwise stated, the proper authority to fix the amount of the bond and to approve the same is the officer or officers upon whom those duties are imposed by existing laws; and where the law does not designate what officer shall perform these duties, the proper authority is the officer, board, bureau or commission having supervision over the particular office or officer." I do not find that the law designates any particular officer to fix the bond of the County Treasurer as to State money coming into his hands. The State Revenue Commissioner would in my opinion then be the proper officer to fix the amount of the bond to be given in any particular instance by the County Treasurer. He, in all probability, in fixing the amount of the bond, will take into consideration the amount of State funds handled by the County Treasurer of Brantley County. PUBLIC OFFICERS-Sheriff's bond cannot be cancelled by Governor upon retirement of sheriff from office. April 25, 1939 Mr. Downing Musgrove Executive Secretary Re: Bond No. 61515-Tom Ben Hightower, Sheriff, Hancock County. I am returning to you herewith the file in the above matter. Section 89-424 of the Code of 1933 appears to have been complied with, but that Code Section only authorizes the relief of the surety from future liability. C-17 Since the temporary appointment has expired, the bond given to cover that time necessarily expires upon his election and qualification for the unexpired term by the giving of a new bond. As I have explained to you on previous occasions, there is no action that the Governor can take that would release the surety on the bond unless specifically permitted by law. Section 89-418 of the Code of 1933 provides in part as follows: "Every official bond executed under this Code is obligatory on the princi- pal and sureties thereon- (1) For any breach of the condition during the time the officer shall continue in office or discharge any of the duties thereof." So any liability that might exist as the result of the acts of the sheriff while serving the term covered by the bond would still exist and the Governor would be without authority to release the surety from any liability thereon. Therefore, I know of no action that the Governor could take so as to comply with the bonding company's request to release them, other than they are released by operation of law under the facts that might exist in this particular case. PUBLIC REVENUE-Veterinary surgeons, tax on. August 23, 1939 Hon. J. W. Ivey Ordinary, Randolph County Cuthbert, Georgia Your letter of August 19, 1939, addressed to Dr. J. M. Sutton, in reference to veterinary suregons paying professional tax, has been referred to me by Dr. Sutton, with the request that I reply to your inquiry. In the levying of professional taxes in the 1927 Act (Acts 1927, page 58) veterinary surgeons were required to pay a professional tax of $15. 00 as well as lawyers, doctors, dentists, public accountants, etc. In 1935 (Acts of 1935, page 13) the Legislature reenacted the provisions of the Act of 1927 in reference to professional tax, but in doing so they omitted the tax on veterinary surgeons and opticians. I do not know whether this was an oversight or was done intentionally, but nevertheless, since it was left out, there is no professional tax against veterinary surgeons. PUBLIC SAFETY-Fees of court officers in traffic cases. February 10, 1939 Hon. Phil Brewster, Commissioner Department of Public Safety We have your letter of February 3rd addressed to Hon. Ellis Arnall, Attorney General, concerning the communication of Mr. J. F. Jackson, Ordinary of Camden County, in which Judge Jackson desires to know if the Ordinary could, under the law, deduct as fees and costs for the benefit of the Court and Sheriff or other arresting officers a sufficient amount of any fine which might have been paid into the Court for other cases to pay for such costs in cases tried where the defendant is unable to pay a fine and costs. Under the present law, I do not think that the Ordinary would be authorized to do this. Under the present law where the officers are on a fee basis, they shall be paid the costs arising in such case and the remainder of such fines shall be paid into the county treasury in the event the case is disposed of in the court of C-18 tbe Ordinary. Tbis being true, the Ordinary would be without any authority to deduct anything except the lawful cost in the particular case involved. For the information of Judge Jackson, you are advised that there is now pending in the General Assembly a bill providing that the net fines be paid into the fine and forfeiture funds rather than the county treasury. If this bill becomes law, the insolvent cost of sheriff and ordinary may then be collected from the fine and forfeiture fund as otber insolvent costs. If this bill passes, it will clarify the problem in Camden County as well as it would in any other county. C-19 INDEX TO OPINIONS OF DUKE DAVIS, ASSISTANT ATTORNEY GENERAL Page COURTS (Code Title 24) Ordinaries may hold court on legal holiday_____________________________ Solicitors General not required to give bond____________________________ CREDIT UNIONS; SMALL LOANS (Code Title 25) Under supervision of State Superintendent of Banks__________________ CRIMES AND PUNISHMENT (Code Title 26) "Bug game" is a lottery and unlawfuL_________________________________ CRIMINAL PROCEDURE (Code Title 27) Indeterminate sentences________________________________________________ Rewards for perpetrators of felonies, when authorized________________ ELECTIONS (Code Title 34) Qualifications of voters; constitutional requirements__________________ FOOD AND DRUGS (Code Title 42) Milk control; ice cream mix dealers required to be licensed____________ Milk control; license fees________________________________________________ GAME AND FISH (Code Title 45) Owners of private ponds not subject to license for fishing in their own ponds___ _______________________________________________________________ INSURANCE (Code Title 56) Company doing business on military reservation in this State subject to State insurance laws and regulations______________________________ Contractor's bond must be countersigned by agent resident in the county_________________________________________________________________ Fraternal society actually engaged in insurance business is subject to insurance laws_________________________________________________________ Licensed company must begin business within two years______________ NOTARIES PUBLIC AND COMMISSIONERS OF DEEDS (Code Title 71) Governor may appoint Commissioner of deeds_________________________ PENAL INSTITUTIONS (Code Title 77) Custody of prisoners vested in State Board of Penal Corrections._______ PUBLIC DEFENSE (Code Title 86) Naval militia, authority of Governor to organize_______________________ PUBLIC HEALTH (Code Title 88) Salaries of employees of State Department, by whom fixed____________ PUBLIC OFFICERS (Code Title 89) County Treasurer's bond for State funds fixed by State Revenue Commissioner______________________________________________________________ Sheriff's bond cannot be cancelled by Governor upon sheriff's retirement from office______________________________________________________ PUBLIC REVENUE (Code Title 92) Veterinary surgeons, tax on____________________________________________ PUBLIC SAFETY (Code Title 92A) Fees of court officers in traffic cases___________________________________ C-3 C-3 C-5 C-5 C-6 C-7 C-7 C-8 C-8 C-9 C-10 C-11 C-12 C-12 C-13 C-13 C-14 C-15 C-16 C-16 C-17 C-17 PARTV OPINIONS OF HERSCHEL E. SMITH Assistant Attorney General of Georgia Assigned to STATE BANKING DEPARTMENT D-3 BANKS AND BANKING-Building and Loan Association shares are legal investments for fiduciaries. ,November 8, 1940 Hon. C. B. Golsan Acting Superintendent of Banks Referring to your inqUiry as to whether or not shares of bUilding and loan associations may be legal investments for trust funds, attention is directed to the Act approved January 26, 1938 (Georgia Laws, Extra Session, 1937-1938, pages 322, 323) , which provides that shares of a State chartered bUilding and loan association, as defined in the BUilding and Loan Act, and of a Federal savings and loan association, shall be legal investments up to $5,000.00 in each institution for the funds of administrators, executors, guardians, trustees and other fiduciaries of every kind and nature, provided that the institution in whose shares the funds are invested is insured by the Federal Savings and Loan Insurance Corporation, pursuant to the provisions of Title 4 of the Federal National Housing Act. I am returning herewith your correspondence on this subject with the Moody's Investors Service. BANKS AND BANKING-Charter of bank dates from merger. July 10, 1940 Hon. John B. Wilson Secretary of State I have your letter of July 9th with reference to the Greenville Banking Company, of Greenville, Georgia, and asking if the charter of that bank dates from the time of its merger or consolidation with The Peoples Bank on January 17, 1930, or whether the original charter period would be applicable. In the absence of legislation to the contrary, the general rule of law makes a distinction between the consolidation and the merger of corporations. A consolidation is the dissolution of the corporations previously existing, and at the same instant the creation of a new corporation; whereas by a merger one of the corporations is continued and another is merely merged into it. Ordinarily, therefore, the charter of a consolidated corporation would date from the date of the creation of the new or consolidated corporation, while the charter of a merger dates from the creation of the corporation into which another is merged. See Vol. 1, Section 151, Zollmann, Banks and Banking. Under Section 13-1401 through 13-1407 of the 1933 Code of Georgia, however, the General Assembly has manifested a clear intention to abolish any distinction in this State between a merger and consolidation of banks. The terms are used interchangeably and it is quite clear that when two banks in this State merge or consolidate, a new corporation is thereby created in so far as the effective period of the charter is concerned. The charter of the merged or consolidated bank runs from the time of the merger or consolidation, as in the case of the grant of a new or original charter. Referring, therefore, to your specific question about the charter of the Greenville Banking Company, it is my opinion that the charter dates from the merger on January 17, 1930 for a period of thirty years from such date. D-4 BANKS AND BANKING-Securities to which bank limited for investment include Western and Atlantic Rental Certificates. April 15, 1939 Honorable C. B. Golsan Assistant Superintendent of Banks Mr. Arnall has referred to me your letter of April 6, 1939, in which you ask if the effect of the recent law relative to W&A Rental Certificates is to render such certificates exempt from the twenty-five per cent. limitation as provided in Section 13-2023 of the 1933 Code. You also ask if the Superintendent of Banks can, under his regulations limit the amount which any bank may invest in these W&A Rental Certificates. Section 13-2023 of the 1933 Code provides that no bank shall purchase or hold "any bonds or debentures except such as are classed as investment securities, and the buying and selling of such securities shall be limited to buying and selling without recourse marketable obligations upon which there has never been a default, evidencing indebtedness of any person, partnership, association, or corporation in the form of bonds, notes and/or debentures, commonly known as investment securities, under such regulations as may be prescribed by the Superintendent of Banks. " Section 13-2023 of the Code further provides that "the total amount of such investment securities shall at no time exceed twenty-five per cent. of the capital and unimpaired surplus of such bank; but this limitation as to the amount shall not apply to obligations of the United States, of this State, or of the several counties, districts, or municipalities thereof which have been validated as provided by law. " Under the Act approved March 24, 1939, the Governor is authorized to sell all the rights and interests of the State under its contract with the Reconstruction Finance Corporation, to receive a refund from the Reconstruction Finance Corporation of a part of the discount charged upon the purchase of the Western and Atlantic Railroad Warrants by said corporation for the price of $75, 000. 00, and to assign to the purchaser or purchasers all such rights and interests of the State of Georgia in said contract with said corporation. The Governor is further authorized to issue and the Comptroller General to countersign, upon the surrender and cancellation of the warrants issued under and by virtue of the Act approved February 16, 1938 (Georgia Laws Extra Session 19371938) new warrants in lieu of or in substitution for such warrants now outstand- ing, in the same aggregate amount and payable in the sum of $45, ooo. 00 on the first day of each month, beginning January 1, 1944, for seventy-two consecutive months. And the Act further provides that these new warrants shall be issued and paid under the same terms, conditions and provisions as the warrants now outstanding, and the special treasury fund created under the Act of February 16, 1938, must be set up, held and used solely for the purpose of paying said new warrants. Under Section 4 of the Act approved March 24, 1939, there is the following provision: "Said new warrants, when issued, shall constitute legal investments for trustees, executors, guardians and other fiduciaries, and shall be eligible to secure deposits in banks and savings banks and for investments by banks and insurance companies in Georgia and for sinking funds. " In view of the nature of these warrants, it is my opinion that they do not constitute validated obligations of the State of Georgia within the meaning of Section 13-2023 of the 1933 Code. And I think the sole effect of Section 4 of the D-5 Act approved on March 24, 1939, is to make these warrants legal investments and they shcmld be treated in the same manner and under the same rules and regulations as common investment securities. Answering your questions specifically, it is my opinion that these warrants are not exempt from the twenty-five per cent. Ilmitation provided by Section 13-2023 of the Code, and that no bank may invest more than twenty-five per cent. of its capital and unimpaired surplus in such warrants. It is my further opinion that the Superintendent of Banks can, under his regulations, limit the amount which any bank may invest in these warrants. BANKS AND BANKING-Taxes on banks in liqUidation. June 14, 193!1 Hon. R. E. Gormley Superintendent of Banks I have your letter of June 13, 1939, requesting an opinion as to the tax liability of a bank in liquidation under the following circumstances: "A Georgia state bank closed and was turned over to the Superintendent of Banks for liqUidation on December 30, 1932. This bank has paid 85% of the depositors' claims, but will not pay in excess of 5% more to the depositors. I am presented with a bill for taxes for the year 1932 by the tax collector of the county in which this bank is located. " You have subsequently informed me that the taxes involved arose out of an assessment against the bank itself for taxes due by it on its own capital stock. This opinion will, therefore, be limited to the question of taxes due directly by the Bank. Section 13-821 of the 1933 Code provides that after the payment of the expenses of liqUidation, etc., the order of paying off debts due by insolvent banks shall be as follows: l. Debts due depositors; 2. Debts due for taxes, State and Federal; 3. Judgments; 4. Contractual obligations; 5. Unliquidated claims for damages and the like. In constrUing the above quoted Code section, the courts appear to make a distinction between taxes which accrued prior to the time an insolvent bank is placed in the hands of the Superintendent, and those accrUing after the bank has been taken over by the Superintendent for the purpose of liqUidation. Taxes accruing.against an insolvent bank after it has been placed in the hands of the Superintendent of Banks for liquidation are, in my opinion, collectible with interest ahead of any debts due depositors. See Tharpe v. Gormley, 184 Ga. 605, and the cases cited therein. Where, however, the taxes accrued prior to the time when the insolvent bank was placed in the hands of the Superintendent of Banks for liquidation, debts due depositors have priority over such taxes. See Baggett v. Mobley, 171 Ga. 268; Felton v. McArthur, 173 Ga. 465. Inasmuch as the taxes in the case under consideration had accrued against the bank before it was placed in the hands of the Superintendent for the purpose of liqUidation, depositors' claims have a clear and unquestioned priority over such taxes, and depositors' claims must be paid in full before such taxes will be collectible. D-6 COURTS; CONSTABLES-Territorial jurisdiction of arrest. August 8, 1940 Hon. A. B. Harris Notary Public and Ex-Officio Justice of the Peace Commerce, Georgia In the Attorney General's absence your letter of August 6th with reference to the right of militia district constables to make arrests outside of their districts and also with reference to their right to convey back to this State fugitives from justice (where extradition is waived), has been referred to me. Section 27-209 of the 1933 Code expressly provides that an "arresting officer" may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer. Under Section 24-817 (5) of the 1933 Code it is provided that one of the duties of such constables is "to execute and return all warrants . . . to them directed by lawful authority." And by referring to Code Section 27-105 it will be seen that ordinary criminal warrants are directed to the constables, as well as the sheriffs, the deputy sheriffs, and the coroners of this State. In answer, therefore, to your first question, it is my opinion that your militia district constables have the legal right to execute, anywhere within the State, criminal warrants issued by you for crimes committed in your district. As to your second question, there is nothing in the law of Georgia which disqualifies a constable from going outside of the State and bringing back fugitives from justice, where extradition is waived. Before incurring any expenses in this connection, however, the constable should first obtain authority therefor from the ordinary, commissioners, or other officer in charge of the fiscal affairs of the county. See Section 44-201 of the 1933 Code. In cases where extradition is involved, only those persons designated by the Governor as agents of this State to receive and convey fugitives are authorized to receive and convey fugitives. See Section 44-101 of the 1933 Code. As a matter of practice, I think it would be a good idea for anybody interested in apprehending fugitives from the justice of this State to have them extradited, in order tbat the officers conveying the fugitives might be fully protected at all times. The foregoing opinion is merely an expression of my personal views, is binding upon no one, and should not be regarded as an official opinion. CREDIT UNIONS-By-laws restricting number of shares member may hold. March 28, 1939 Hon. R. E. Gormley Superintendent of Banks Mr. Arnall bas referred to me your letter of March 22, 1939, asking if the Board of Directors of a Credit Union can retroactively lower the limit of the number of shares which any one member of the Credit Union can hold, and thus compel him to dispose of the shares held by him in excess of the new and lower limit, although tbe shares beld by him do not exceed tbe number authorized at .the time he acquired them. The letter of Mr. C. B. Golsan, Assistant Superintendent of Banks, dated March 25, 1939, directs tbe question specifically to the Atlanta Postal Credit Union and states tbat the issue "is whether tbose members who hold in excess D-7 of five hundred shares and which were acqUired during the period when they were authorized under resolutions of the board to acqUire not exceeding one thousand shares, can now be reqUired to dispose of all shares exceeding five hundred shares, under and by virtue of the new resolution of the board, which now limits any member to a maximum of five hundred shares. " It is my considered opinion that a member has a right to retain any number of shares within the limit authorized at the time he acquired them. Generally speaking, an attempt to limit the number of shares which can be held by any person is void as being an unreasonable restraint on the transfer of property in the stock. 65 A. L. R., page 1181; Miller v. Farmers Mill and Elevator Company, 78 Neb. 441, 110 N. W. 995; see, also, McNulta v. Corn Belt Bank, 164 Ill. 427, 45 N. E. 954. But where restrictions are in the articles or certificates, there seems to be no objection to limiting the number of shares which can be held by any person. See Longyear v. Hardman, 219 Mass. 405, 106 N. E. 1012; Lawson v. Household Finance Corp. (Del. 1930), 152 A. 723. Section 25-113 (4) of the 1933 Code of Georgia empowers the Board of Directors of a Crecit Union to fix the maximum amount of shares which may be held by any one member of the Credit Union. Under the by-laws of the Atlanta Postal Credit Union the Board of Directors is authorized "to fix the maximum number of shares which may be held by, and the maximum amount which may be loaned to any one member. " Article VI, Section 3. Under Article VIII, Section 1 of the by-laws of the Atlanta Postal Credit Union every member of the Credit Union having subscribed for one or more shares of stock and having paid for the same in whole or in part is a shareholder. And the maximum number of shares for which any one member may subscribe is determined from time to time by the Board of Directors. While the Board of Directors of the Atlanta Postal Credit Union has the power to fix, from time to time, the maximum amount of shares which may be held by any one member, it cannot do so retroactively and thus impair the vested rights of a member to retain any number of shares which he may have within the limit authorized at the time he acquired them. Any resolution of the board lowering the limit of the number of shares which may be held by any one member would be valid only with reference to acqUisitions subsequent to the passage of the resolution. See People v. Crockett, 9 Cal. 112. It is my opinion, therefore, that those members of the Atlanta Postal Credit Union who now hold in excess of five hundred shares and which were acqUired during the period when they were so authorized, have the right to retain such shares and cannot be required to dispose of all shares exceeding five hundred shares under and by virtue of the new resolution of the board limiting any member to a maximum of five hundred shares. I am returning herewith the copy of the by-laws of the Atlanta Postal Credit Union. CREDIT UNIONS-Right of sole remaining share holder to surrender charter. January 16, 1940 Hon. C. B. Golsan Asst. Supt. of Banks Acting as Superintendent of Banks Referring to your question as to the right of the one remaining shareholder in a credit union to surrender the charter of the credit union, where all other shareholders have disposed of their shares: D-8 Section 25-119 of the 1933 Code provides that any credit union may go into voluntary liquidation and surrender its charter and franchises by complying with the laws of the State for the voluntary liquidation and dissolution of banks, except that the fees to be paid to the Secretary of State shall be $10. 00, instead of $25. 00, and except that the application to surrender the charter has to be published only once a week for two weeks instead of four weeks. Section 13-1501 of the 1933 Code provides that any bank may go into voluntary liquidation and be closed and may surrender its charter and franchises as a corporation, by the affirmative vote of its stockholders holding two-thirds of its stock, etc. The remaining Code sections with reference to the voluntary liquidation and dissolution of banks are codified in Sections 13-1502 through 13-1512 of the 1933 Code. Although I am unable to see how, as a practical situation, there can be only one remaining shareholder in the credit union which you have in mind, Section 25-109 of the 1933 Code provides that after a member of a credit union has withdrawn his membership that he shall have no further right in said credit union or to any of its benefits. I see no reason, therefore, why a single holder of all outstanding shares of the credit union could not, by proper petition, surrender the charter of the credit union. You have also asked what disposition should be made of the surplus of funds remaining in the credit union after all members of the credit union, except one, have withdrawn their membership. As above stated, it is difficult for me to understand how all this could happen as a matter of fact, but the law provides that all assets remaining after the payment of expenses of liquidation, debts, and other claims against the corporation shall belong to the members or shareholders. If there is only one shareholder, then it occurs to me that the one shareholder would be entitled to receive whatever assets remain after the payment of all claims and expenses. See Code Sections 13-1506 and 25-117 of the 1933 Code. The situation which you have presented is quite novel, and I can't get away from the idea that very probably investigation will reveal that there is more than one shareholder in the credit union which you have in mind. It may be also that there are some special conditions or circumstances with which we are not at present familiar that would not entitle the so-called "remaining shareholder" to act alone in surrendering the charter or to receive all assets remaining after the payment of expenses, debts, etc. At any rate, the situation is so unusual that I would suggest that you defer rendering any opinion to the parties until we both have a chance to thoroughly investigate all the facts and circumstances. CRIMES AND PUNISHMENT-American flag; unlawful to use for advertising. August 6, 1940 Hon. Geo. E. Peniston Continental Display Advertising Company 717 Wyandotte Street Kansas City, Mo. Your letter of July 29th to the Attorney General inclosing a miniature copy of a proposed poster billboard displaying the American flag has been referred tome. D-9 The only provisions of Georgia law with reference to the misuse of the flag of the United States are contained in the following sections of the 1933 Code: "26-7201. Advertising, selling, or promoting sale of merchandise. -It shall be unlawful for any person, firm or corporation of this State to copy, print, publish or otherwise use the flag or national emblem of the United States of America for the purpose of advertising, selling or promoting the sale of any article of merchandise whatever within this State. "26-7202. Contemptuous use or defacement. -It shall also be unlawful for any person, firm or corporation to mutilate, deface, defile or contemptuously abuse the flag or national emblem of the United States by any act whatever. "26-7203. Use for decorative or patriotic purposes not prohibited. -Nothing in this Chapter shall be construed so as to prevent any person, firm or corporation from using any flag, standard, color, shield, ensign or other insignia of the United States of America for decorative or patriotic purposes, either inside or outside of any residence, store, place of business, public building, or school building. "26-7204. Punishment for misuse of United States flag. -Any person, firm or corporation who violates any of the provisions of section 26-7201 or 26-7202 shall be punished as for a misdemeanor. " EDUCATION-General Assembly can appropriate funds to pay teachers. April 11, 1939 Mr. R. G. Harper, Jr., Superintendent Bartow Public Schools Bartow, Georgia I have your letter of April10, 1939, asking the following questions: 1. "If the Legislature fails to meet before June 30th, but meets during the summer, can they appropriate money to pay back salaries of Georgia school teachers?'' 2. "What is your opinion concerning the legal obligation of the State to pay back salaries of school teachers?" 3. "Under the law, can the next Governor divert money in the new year to pay these back salaries?" 1. The Legislature can, in my opinion, provide money for the payment of past due salaries to teachers which may have accrued in previous years. That very thing was done in 1935 by an Act of the Legislature approved February 1, 1935, to be found in Georgia Laws 1935, pages 5 and 6. By the Act of 1935, supra, the State Highway Board and the State Highway Department were directed to pay into the general fund of the State Treasury two million dollars of State Highway funds arising from revenue allocated t() State Aid road funds, to be disbursed upon warrants of the Governor for the payment of 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 regular appropriations are paid, provided that all school boards should use their pro rata part of said funds for the payment of past due salaries to school teachers and bus operators which had accrued prior to January 1, 1935, before said funds could be used for any other purpose. D-10 2. Answering your second question, it is my opinion that the State is under no legal obligation to pay back salaries of school teachers. The General Appropriations Act, approved March 30, 1937 (Georgia Laws 1937, pages 54 to 72) , under Section 24 thereof, appropriates to the State Department of Education for the fiscal year beginning July 1, 1938, and ending June 30, 1939, a definite sum for aid to the common schools. And Section 27 of said General Appropriations Act provides as follows: "Section 27. In the event that the funds available for paying the fixed sum appropriation herein made should be less than the total sum of appropriations, then such appropriations shall be reduced, pro rata in the amount of such deficiency; provided, however, that the sums appropriated for the principal of and interest on the public debt, and for the judicial and legislative branches of the government shall not be affected by the provisions of this section. The sums so stricken under the provisions of this section are hereby declared annulled and the sums remaining after the application of the provisions of this section shall be the appropriations for the purposes named, in lieu of the amounts set out in this Act. " In view of the provisions of Section 27 of the General Appropriations Act, quoted above, commonly known as the "grandfather clause", the appropriations made for the common schools are made amenable to the revenue derived by the State in paying such appropriation, and when the revenue is not sufficient to pay the appropriation, such appropriation is automatically reduced pro rata in the amount of such deficiency. It is, therefore, my opinion that where the State is not able to pay teachers' salaries for the full seven months school year on account of lack of revenue, teachers have no legal recourse against the State or any of its officials to compel the payment of the unpaid portion of the 1938-1939 school year of seven months, although they may have actually taught for the full seven months period. With reference to your third question, relating to the power of the Governor to divert money to pay back salaries of school teachers, it would be improper for me to express an opinion in the absence of a direct request on the part of the Governor himself. For this reason I must decline to answer your last question. Since the Law Department is not authorized to render an opinion on any subject to private persons, this letter is written simply as an expression of my own personal views and is in no way to be treated as my official opinion or as an opinion from the Law Department of the State of Georgia. FOOD AND DRUGS-Whether restaurant serving milk is subject to milk license. January 5, 1940 Honorable Steve N. Brown Steve Brown's Cafe 308-7th Street North Cordele, Georgia In the absence of the Attorney General from the office your letter of December 29thhas come to my attention. You desire to know if you are required to pay a State license for serving milk with meals at your restaurant. Section 9 of the Act approved March 30, 1937 (Georgia Laws 1937, pages 247, 253) provides as follows: "Licenses to Producers, Producer-Distributors, Stores and Distributors, In any milk shed where the provisions of this Act once apply, it shall be D-Il unlawful for any producer, producer-distributor, store, or distributor to produce, sell, buy, handle, or distribute milk unless such person be duly licensed as provided by this Act. It shall be unlawful for any such person to buy, sell, handle, or distribute milk which he knows or has reason to believe has been previously dealt with or handled in violation of any provision of this Act. " Section 2 of the Act in question (page 248) provides, in part, as follows: " 'Store' means any wholesale or retail grocery store, hotel, restaurant, cafeteria, soda fountain, dairy products store, warehouse, manufacturing plant, or similar mercantile establishment which buys milk bottled or in cans and resells within any milk shed to which this Act is applicable such milk without re-bottling (except for immediate service for consumption by customers) , pasteurizing, or otherwise processing the same. Whenever one person shall operate more then on~ store or shall operate his business in more than one unit, each such store'or unit shall be deemed to be a separate and distinct store. " Section 11 of the same Act (page 254) provides: "License Fees. All persons required by this Act to be licensed shall pay such uniform license fees as may be fixed by the Board as follows: Each store shall pay an annual fee in advance, not to exceed two dollars and fifty cents ($2. 50) . Each producer shall pay a fee, not in excess of two cents for each 100 pounds of milk produced. Each producer-distributor shall pay a fee, not in excess of two cents for each 100 pounds of milk produced or received by him from any producer, producer-distributor, or distributor. Each distributor shall pay a fee, not in excess of two cents for each 100 pounds of milk received. Producer, producer-distributors, and distributors shall pay their fees monthly on the foregoing basis with respect to the milk handled during the preceding month, provided that it is the intention of this section that no fee shall be required with respect to any milk sold and consumed within territory which is not within a milk shed to which this Act may be applicable. " Section 10 of the Act (page 254) provides: "Application for License. An applicant for a license to operate as milk dealer, producer, producer-distributor or store shall file an application upon a blank prepared under authority of the Board. An applicant shall state such facts concerning his circumstances and the nature of the business to be conducted as in the opinion of the Board are necessary for the administration of this Act. Such application shall be accompanied by any license fee required to be paid in advance. The Board may classify licenses and may issue licenses to milk dealers to carry on a certain designated kind of business only, or the same may be limited to a particular city or village or to a particular market or markets in the State, and may specify the place or places where milk may be received from producers. Each application for a license shall be in writing under oath. If the applicant is doing business within any municipality or county within any such milk shed which requires a health permit to do business, he shall accompany his application with such evidence as may be required by the Board that he holds such a permit. Application shall be duly made within 30 days after this Act takes effect in any milk shed by all persons required herein to be licensed in such milk shed. The license year shall commence on the day this Act applies to any given milk shed and end on the 31st day of December following. An application must be duly made at least 30 days before the commencement of D-12 the license year by all milk dealers then doing business in all milk sheds where this Act applies. Any annual license fees hereinafter fixed shall be reduced 25% in the case of any license applied for, for each fully elapsed quarter of a calendar year prior to the issuance of such license under the provisions of this Act: Provided, however, that no license fee for any period shall be less than 25% of the total. " Section 18-A of the Act (page 259) provides as follows: "Constructions, Exceptions and Limitations. The license required by this Act shall be in addition to any and/or all other licenses required by law. This Act shall not be construed to conflict with, to alter or to repeal any regulatory sanitary laws regulating the sanitary production and distribution of milk or milk products, or any regulation governing such service now in existence or subsequently adopted or amended as required by law. The provisions of this Act are solely intended to facilitate the orderly marketing of milk. If any clause, sentence, paragraph or part of this Act shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph or part thereof, directly involved in the controversy in which such judgment shall have been rendered." D-13" INDEX TO OPINIONS OF HERSCHEL E. SMITH, ASSISTANT ATTORNEY GENERAL Page BANKS AND BANKING (Code Title 13) Building and Loan Association shares are legal investments___________ D-3 Charter of bank dates from merger_____________________________________ D-3 Securities to which bank limited for investment include Western and Atlantic Rental Certificates___________________________________________ D-4 Taxes on banks in liquidation___________________________________________ D-5 COURTS (Code Title 24) Constables; territorial jurisdiction of arrest___________________________ D-6 CREDIT UNIONS (Code Title 25) By-laws restricting number of shares member may hold..______________ D-6 Right of sole remaining share holder to surrender charter_____________ D-7 CRIMES AND PUNISHMENT (Code Title 26) American flag; unlawful to use for advertising_________________________ D-8 EDUCATION (Code Title 32) - General Assembly can appropriate funds to pay teachers______________ D-9 FOOD AND DRUGS (Code Title 42) Whether restaurant serving milk is subject to milk license____________ D-10 PART VI OPINIONS OF BROADUS B. ZELLARS Assistant Attorney General of Georgia Assigned to STATE DEPARTMENT OF REVENUE E-3 ELECTIONS-Qualification of voters. Hon. E. D. Rivers, Governor September 11, 1939 Your request for an opinion on the questions propounded to you in a letter, a copy of which is hereto attached, from Hon: Wayman H. Marshall, Tax Col- lector of Oconee County, Georgia, has been received and replying to your re- quest, I am glad to give you this my opinion on the questions propounded in the letter as requested by you. I have examined the records of the Attorney General's office and have found that the late Judge M. J. Yeomans, former Attorney General of the State of Georgia, has rendered an opinion which deals specifically with the questions pro- pounded in the letter and request made by you, and the conclusions reached by Judge Yeomans are supported in a case recently decided by our Supreme Court, in 184 Ga. 824. I concur in this opinion. The first, second and third questions are answered in the affirmative. I desire to quote pertinent portions from the opinion of Judge Yeomans as fol- lows: "1. Poll taxes are assessed and levied as of January 1st of each year and become in default after December 20th of that year. "2. No one who is a poll tax defaulter can legally vote in any special or general election by the people. "3. Male citizens who became twenty-one years of age after January 1, 1939, are not due any poll taxes for 1939. "4. Female citizens who registered for the first time after January 1, 1939, are not due any poll taxes for 1939. "5. Anyone who will become twenty-one years of age on or before the day of a special election may register before the call or within five days after the call for the special election and vote therein. "6. Those who were legally registered and qualified to vote in the general election of June 8, 1939, and who pay their 1938 poll taxes within five days after the call for a special election are entitled to vote in such special elec- tion." INDUSTRIAL RELATIONS; UNEMPLOYMENT COMPENSATION:---State-Federal cooperation. June 22, 1939 Hon. E. D. Rivers, Governor Your letter of June 14, 1939, requesting an opinion as to the construction of the Georgia Unemployment Compensation Act as applied to employing units exempted from the operation of the Federal Statute has been referred by the Attorney General to me for reply as I am the Assistant Attorney General assigned to the Department of Revenue and as such my duties largely consist of the construction of tax statutes. Your letter is as follows: "It has been brought to my attention that certain employing units have applied for termination of coverage under the Social Security Act. The Act provides that all actions for collection under the Act shall be prosecuted by an Assistant Attorney General. It is, therefore, apparent that eventually it will be necessary for the Department of Law to pass on the question involved. "The Act provides that the same shall not apply to services performed in the employ of an instrumentality of the United States Government. The E-4 tax levied under Title 9 of the Federal Statute has become inoperative as to certain employing units by virtue of a ruling of the Treasury Department of the United States Government. I desire to know whether the provisions of the Georgia Social Security Act have also become inoperative in view of the Federal Authority's determination that because these employing units are instrumentalities of the Federal Government, the Federal Act is inoperative as to them. " In replying to your communication, I deem it needless to pass upon the question of whether or not the employing units described in your letter are instrumentalities of the United States Government for the reason that you state that the Federal authorities have determined these units to be instrumentalities of the Federal Government and that the tax levied under Title 9 of the Federal statute has become inoperative as to these units because of the said ruling of the United States Government. Section 14 (d) of the Unemployment Compensation Act (Ga. L. 1937, p. 836) provides in part as follows: "If the tax imposed by Title 9 of the Federal Social Security Act or any amendments thereto, or any other Federal tax against which contributions under this Act may be credited shall for any cause become inoperative, the provisions of this Act, by virtue of that fact, shall likewise become inoperative, ... " The plan provided by the Federal and State Unemployment Compensation statutes is a correlated plan between .the Federal Government and the State Government and, in my opinion, contemplates a cooperative legislative effort by both the State and Federal Governments for carrying out a public purpose common to both, which neither can achieve without the cooperation of the other. It is my thought that the interpretation of the State and Federal Acts must necessarily be uniform. Since Section 14 (d) of the Georgia Unemployment Compensation Law makes specific provision to the effect that if the Federal tax imposed by Title 9 of the Federal Social Security Act shall become inoperative then the State tax will likewise become inoperative and since you state in your communication that the Treasury Department of the United States Government has determined that the tax imposed by Title 9 of the Federal Social Security Act as regards the employing units described in your letter has become inoperative as to the said units, it is my opinion that the Georgia Unemployment Compensation Law likewise has become inoperative as to the said described employing units for the reasons indicated and will remain inoperative as to the units in question so long as the Federal statute is inoperative. INTOXICATING LIQUORS; MALT BEVERAGES-Excise tax, whether collectible on sales on government reservations. January 26, 1939 Hon. T. Grady Head State Revenue Commissioner In reply to your request as to whether or not you are authorized under the Malt Beverage Act of this State to permit a shipment of malt beverages as defined in said Act to army posts located on government reservations without the payment of the tax imposed on malt beverages by this Act. I am of the opinion that you have authority to permit brewers, distributors, or bottling plants located in Georgia, licensed and bonded by you as sU:ch under the provisions of said Act, to ship beer to army posts located on government res- E-5 ervations either in the State of Georgia or outside the State of Georgia. Beer shipped to army posts should not have affixed the tax paid crowns or any evidence of any tax being paid to the State but should be shipped in the same manner as beer which is exported from Georgia to another state. The Malt Beverage Act approved December 13, 1937, has the following provision: "Provided there shall be no excise tax on sales of malt beverages sold to persons outside of this State for resale or consumption outside of this State." A government reservation is, within the meaning of the law, outside of the State. Section 15-301 of the Code of 1933 is as follows: "The consent of the State is hereby given in accordance with the 17th clause of Section 8 of Article 1 of the Constitution of the United States to the acquisition by the United States, by purchase, condemnation, or otherwise, of any lands in this State which have been or may hereafter be acquired for sites for custom houses, courthouses, post offices, or for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." Section 15-302 of the Code of 1933 provides the following: "Exclusive jurisdiction in and over any lands so acquired by the United States is hereby ceded to the United States for all purposes except service upon such lands of all civil and criminal processes of the courts of this State; but the jurisdiction so ceded shall continue no longer than said United States shall own such land. The State retains its civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens in this State. Nothing herein shall interfere with the jurisdiction of the United States over any matter or subjects set out in the Acts of Congress donating money for the erection of public buildings, for the transaction of its business in this State, or with any laws, rules or regulations that Congress may adopt for the preservation and protection of its property and rights in said ceded territory, and the proper maintenance of good order therein. " It will be noted from the above sections that the State of Georgia did not reserve to itself the right to tax any business conducted on a military post of the United States Government and that exclusive jurisdiction of the lands acquired by the United States in the State of Georgia has been placed under the Federal Government. A number of cases have held that a State cannot impose any kind of tax or license on business conducted on an army reservation. I would suggest that your rules and regulations with reference to shipments of malt beverages to army posts provide that the beverages so shipped shall not bear any evidence of payment of any tax to the State of Georgia; that you also require the shipper to furnish you with a copy of his order from the army post and also a receipt from the army post that the beverages were delivered to him and such other rules as you think proper. In my opinion it is legal for shipments to be made in the manner I have above outlined and it is not only legal but as a practical proposition, if Georgia licensees are not permitted to ship malt beverages to army posts without the payment of the tax they will be penalized and deprived of their business as the business will be taken over by unlicensed dealers out of the State of Georgia who will ship from outside the State direct to the army reservations. To permit this would be very unfair to Georgia licensees. E-6 INTOXICATING LIQUORS; REGULATION AND TAX-Contraband liquor may be seized in dry counties. April 22, 1940 Mr. L. C. Groves, Director Alcohol Control Unit Department of Revenue I have your letter of April 16th in which you request the following information: "It will be appreciated if you will advise me if whiskey bearing the Georgia revenue stamp seized in a dry county by a sheriff, deputy sheriff, or other enforcement officers, should be delivered to the State Revenue Commissioner or some person designated by the Commissioner to receive the same." Section 17 of the Act known as "The Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," (Georgia Laws 1937-38 Ex. Sess. page 119) reads in part as follows: "That it shall be unlawful for any person, firm or corporation to sell, possess, conceal, store, convey any vinous, malt, or spirituous liquors or beverages whereon any tax or license fee is imposed by this Act, and upon which such tax or license fee has not been paid; and any peace officer or agent of the State Revenue Commissioner shall have the authority and it shall be his duty to declare contraband any distilled spirits or alcohol which does not bear the revenue stamps of the State of Georgia, or that is found without such stamp, whether for sale or otherwise, in any county in the State of Georgia where the sale of such distilled spirits and alcohol is not authorized under the terms of this Act or its amendments. All contraband liquors, distilled spirits or alcohol, seized as contraband, shall be immediately delivered to the State Revenue Commissioner, or persons designated by the Commissioner to receive the same, and by them either destroyed or sold at public sale, but nothing in this Act shall prohibit the other law enforcement agents and officers in this state from seizing and prosecuting persons illegally possessing or selling distilled spirits and alcohol in counties in the State of Georgia where the sale of same has not been authorized by this Act or its amendments. The authority to seize as contraband distilled spirits and alcohol as set out herein shall extend to counties where the sale and possession of the same is made legal by this Act or any of its amendments where such liquors, distilled spirits or alcohol are sold contrary to the provisions hereof or found in possession of any person, firm, or corporation, and not bearing the prescribed stamps showing taxes paid thereon in the State of Georgia. " (Emphasis supplied.) From the above provision of law it is clear that any alcoholic beverages found in a dry county contrary to law is classified as contraband liquor. The fact that such liquor bears revenue stamps does not alter the situation. The Legislature also desired to extend the authority to seize as contraband distilled spirits and alcohol to counties where the sale and possession were made legal by this Act where such liquors or alcoholic beverages were sold contrary to law. I am of the very definite opinion that any alcoholic beverages sold in a dry county, even though they should bear the proper revenue stamps, are nevertheless subject to be seized as contraband and immediately delivered to the State Revenue Commissioner or persons designated by him to receive same. E-7 INTOXICATING LIQUORS; REGULATION AND TAX-Liquor license may be granted or refused within the reasonable discretion of the Commissioner. ' January 11, 1940 Hon. T. Grady Head State Revenue Commissioner I wish to acknowledge receipt of a copy of the petition filed by Mr. Norman H. Thacker with you as Revenue Commissioner, also letter of Hon. J. H. Ennis in connection with said matter, together with a copy of your reply, all of which I am returning to you for your file. Our courts have held that the provisions of the law with reference to the granting of retail liquor licenses are valid and constitutional. The granting of a license is a matter which addresses itself to your discretion. Should you desire to entertain petitions for or against the granting of a license you have that right. However, under the law known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors you are not required to hold hearings with reference to the granting of licenses, but the provisions of the law are very broad in their scope in that under Subsection (h) of Section 8 of the Act (Ga. L. Ex. Sess. 1937-38, page 109) you are given the authority to adopt, promulgate, repeal and amend rules, regulations and standards with reference to the enforcement of the Act in question. Subsection (h) of section 8 is as follows: " (h) To adopt and promulgate, repeal and amend such rules, regulations, standards, requirements and orders not inconsistent with this Act or any law of this State or of the United States as he may deem necessary to control the manufacture, sale, distribution, storage, or transportation of distilled spirits and alcohol in accordance with the provisions of this Act, and the conditions under which same may be withdrawn from said warehouses and distributed. " There are numerous decisions of our United States Supreme Court on the question of state regulation, all of which uphold the provisions of the TwentyFirst Amendment to the United States Constitution, which amendment gives each state of the Union absolute authority in determining whether or not liquor shall be sold or possessed within the state. I do not think that the question of the constitutionality of your action in granting a hearing on this application as suggested in your letter to Captain Ennis on January 8th enters into the issuance of this license for the reasons herein stated. PUBLIC REVENUE; PERSONS AND PROPERTY SUBJECT TO TAX-Ad valorem tax against life tenant. June 14, 1940 Hon. T. Grady Head State Revenue Commissioner I acknowledge receipt of your letter enclosing a letter from Mr. Henry H. Furlow, Member, Morgan County Board of Tax Assessors of Madison, Georgia. You request an opinion on the questions propounded in the letter from Mr. Furlow. The first question propounded in Mr. Furlow's letter is: "How should land left as a life estate be returned or assessed by our Board, so that the County may foreclose and acquire a title in fee in case the taxes are not paid?" E-8 Code Section 92-110 provides the following: "Taxes charged against whom. -Taxes shall be charged against the owner of property if known and against the specific property if the owner is not known. Life tenants, and those who own and enjoy the property, shall be chargeable with the taxes thereon. Hence, while the public may treat property as belonging either to the maker or the holder of a bond for title when the latter is in possession, yet as between the parties the one receiving the rents or enjoying the use shall be liable for the taxes." The Supreme Court of our State in the case of Gross, et al., v. Taylor, 81 Ga. 86, held: "All property must pay taxes and parties interested must see that they are paid in order to protect such reversionary or other interest as they may have therein. Where there is a general assessment of taxes against all the property of a person and the execution therefor is levied on a particular lot of land which was included in the general return of his property, the purchaser at the tax sale got no better title than the defendant in execution himself had. Had the taxes been assessed against a particular lot of land and execution issued therefor, the purchaser at a sale thereunder would have gotten a good title as against the world. " As I understand Mr. Furlow's letter, he states in the particular case he has in mind the execution was issued and levied against a life tenant. The property of the life tenant was sold. The sale only conveying the life estate. It was proper to sell the life estate in accordance with the Code Section I have quoted above. It is unfortunate for the county if the life estate is worthless. PUBLIC REVENUE-EXCISE TAXE8-Motor fuels tax collectible from motor fuels used by schools or colleges. August 19, 1940 Honorable R. H. Black, Registrar North Georgia College Dahlonegar, Georgia During the absence of Mr. Arnall from the office on official business your letter was brought to my attention because of the fact that I am the Assistant Attorney General assigned to the Department of Revenue. There is no provision under the Gasoline Tax Act which exempts schools and colleges of this state from the payment of the excise tax imposed thereunder. This office does not deal with the collection of federal taxes and an inquiry as to the federal taxes which might be due should properly be addressed to the federal agency charged with the collection thereof. The constitution of the State of Georgia, Paragraph 2 of Article 7, contains the following provision: "The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all buildings erected for and used as a college, incorporated academy, or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; and provided, further, that said exemption shall only apply to such colleges, incorporated academies or other seminaries of learning as are open to the general public; provided, further that all endowments to institutions established for white people shall be limited to white people, and all endow- E-9 ments to institutions established for colored people shall be limited to colored people; the real and personal estate of any public library, and that of any other literary association, used by or connected with such library; all books and philosophical apparatus; and all paintings and statuary of any company or association, kept in a public hall, and not held as merchandise or for purpose of sale or gain; provided, the property so exempted be not used for purposes of private or corporate profit and income. The General Assembly shall further have power to exempt from taxation, farm products, including baled cotton, grown in this State and remaining in the hands of the producer, but not longer than for the year next after their production." In pursuance of this constitutional provision the Legislature of our State enacted into law Code Section 92-201 of the 1933 Code which is as follows: "92-201. Property exempt from taxation. -The following described property shall be exempt from taxation, to wit: All public property, places of religious worship, and places of burial; all institutions of purely public charity; all buildings erected for and used as a college, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies, or seminaries of learning: Provided, the same is not invested in real estate: and Provided further, that said exemption shall apply only to such colleges, incorporated academies, or other seminaries of learning as are open to the general public: Provided further, that all endowments to institutions established for white people shall be limited to white people, and all endowments to institutions established for colored people shall be limited to colored people; the real and personal estate of any public library, and that of any other literary association used by or connected with such library; all books, philosophical apparatus, paintings and statuary of any company or association, kept in a public hall, and not held as merchandise or for purposes of sale or gain: Provided, the above-described property so exempted is not used for purposes of private or corporate profit or income; all farm products, including baled cotton, grown in this State and remaining in the hands of the producer shall be exempt from taxation for the year next after their production.'' PUBLIC REVENUE; EXCISE TAXEs-Motor fuels not sold in this State not taxable. June 19, 1939 Hon. T. Grady Head State Revenue Commissioner Your letter of May 25th requesting an opinion as to the construction of Section 92-1407 of the Motor Fuel Tax Law (Acts 1937, p. 167-186) permitting an allowance of 1% to bonded distributors to cover losses and expenses in the collection of the tax imposed by the Act, has been referred by Mr. Arnall to me for reply as I am the Assistant Attorney General assigned to the Department of Revenue. Code Section 92-1407 provides the following: "92-1407. Tax reports. Computation and payment of tax.- (A) For the purpose of determining the amount of the tax herein imposed, each distributor shall, not later than the 20th day of each calendar month, file with the Comptroller General, on forms prescribed by said Comptroller General, monthly reports sworn to by the distributor which shall include the following: E-10 " (1) An itemized statement of the number of gallons of all motor fuel and/or kerosene received during the next preceding calendar month by such distributor, which has been (a) produced, (b) refined, (c) prepared, (d) distilled, (e) manufactured, or (f) compounded by such distributor in the State of Georgia. " (2) An itemized statement of the number of gallons of all motor fuel and/or kerosene received by such distributor in the State of Georgia, from any source whatsoever, during the next preceding calendar month as shown by the shipper's invoices thereof (other than motor fuel and/or kerosene falling within the provisions of (1) above), together with a statement showing (a) the date of receipt of each shipment of such motor fuel and/or kerosene; (b) the name of the person from whom purchased and/or received; (c) the point of origin and the point of destination of each shipment; (d) the quantity of each of said purchases or shipments; (e) the name of the carrier; (f) the initials and number of each tank car, and the number of gallons contained therein, if shipped by rail, and (g) the license number of each transport tank truck, or other truck, and the number of gallons contained therein if transported by motor truck, and (h) the name and owner of the boat, ship, barge, or vessel, and the number of gallons contained therein, if shipped by water, and (i) the manner, if delivered by other means, in which such delivery is made. " Subsection (3) through subsection (16) of the section deal in the main with motor fuel and/or kerosene which are. not taxed under the Act. Subsection (C) of Code Section 92-1407 contains the following provision: " (C) At the time of rendering such report, the distributor shall pay to the Comptroller General the tax or taxes imposed by this Chapter on all motor fuel and/or kerosene sold or used in this State during the next preceding calendar month less an allowance of one per cent. to cover losses and expenses incurred in collecting the tax for the State: Provided, this allowance shall not be deductible unless payment of tax is made on or before the 20th day of the month as herein required. " Since the tax is determined by the amount of the motor fuel and/or kerosene received by the distributor it is proper in rendering this opinion to consider the definition of received as set out in the Act in question. Code Section 92-1402, subsection (Nl defines received as follows: "(N) 'Received': (1) Motor fuel and/or kerosene produced, refined, prepared, distilled, manufactured, blended or compounded at any refinery or other place in the State of Georgia by any person, shall be deemed to be 'received' by such person thereat when the same shall have been (a) loaded at such refinery or other place into tank cars; transport tank trucks, ships or barges, or (b) placed in any tank at such refinery (or other place), (b-1) from which any withdrawals are made direct into tank trucks, tank wagons or other types of transportation equipment, containers, or facilities (other than tank cars, transport tank trucks, ships or barges) , or (b-2) from which any sales or deliveries not involving transportation are made directly, but not before. " Construing the entire Act levying the tax on motor fuels and/or kerosene, I have reached the conclusion that it was the intent of the Legislature and the Legislature did in the passage of the Act in question limit the amount which any oil company could deduct to 1% to cover losses and expenses incurred in the collection of the tax to the extent that the 1% shall be based upon the motor E-ll fuel and/or kerosene received by the distributor for sale, use or consumption in this State as is provided in the Act. I am further of the opinion that the Commissioner of Revenue is authorized under the Act to collect from the distributors the tax on the motor fuel and/or kerosene sold or used in this State and that if the Commissioner is furnished evidence satisfactory to him that the motor fuel in question, although received by the distributor, was not actually sold or used in this State he would be authorized to give credit or make allowance for such motor fuel which was not sold or used in this State. PUBLIC REVENUE; EXCISE TAXES-Motor fuels wholesaler having retail stations not entitled to shrinkage accruing subsequent to delivery to pumps. July 27, 1940 Hon. T. Grady Head State Revenue Commissioner I have your letter of July 24th together with a communication from Mr. V. M. Womack of the Motor Fuel Tax Unit in which he states the following: "A registered, bonded distributor of motor fuels and kerosene in Georgia is incorporated under the laws of the state. There are several other small corporations, the capital stock of which is owned by the same interest as the bonded company, that operates service stations, or are retailers of motor fuels and kerosene. Purchases of motor fuels and kerosene are made by the bonded company from marine terminals and other wholesale points and delivered direct to these other corporations or retail outlets. The bonded distributor pays the state motor fuel and kerosene tax, but not until areport is received from the respective retail service stations, which always shows losses from shrinkage and evaporation, and these losses are passed on to the state as a reduction from gross purchases. " Mr. Womack is requesting an opinion as to whether the bonded distributor is entitled to deduct from its gross purchases the losses from shrinkage and evaporation that are sustained by the several retail corporations to which it sells gasoline and kerosene. Section 92-1403 of the Code reads in part as follows: "An excise tax is hereby imposed on all distributors of motor fuel and/or kerosene: "(a) Upon the sale or use of motor fuel by them within this state, at the rate of six cents per gallon." Section 92-1402 defines the word "sale" as follows: "(i) 'Sale' shall mean and include any exchange, gift, or other disposition, and 'purchase' shall include any acquisition of ownership." (Emphasis supplied.) It is clear from a reading of the above provisions of law that the tax in question is laid upon the sale or use of motor fuel. When the bonded distributor disposes of motor fuel to the several small corporations which act as retail outlets I am of the opinion that this transaction constitutes a sale within the purview of the Motor Fuel Tax Act. It should especially be noted that the word "purchase" as used in the Act includes any acquisition of ownership. It does not alter or change the situation because the corporation which acts as the bonded distributor of said motor fuels owns all the capital stock and interest of the several retail corporations. It is an elementary principle of law that E-12 a corporation is a legal entity. That is, in contemplation of law, each of these corporations is a complete and separate being. The rule is very well stated in the case of McDermott v. A. B. C. Oil Corporation, 266 Ill. App. 115, as follows: "A corporation is an entity separate and distinct from its stockholders and from other corporations with which it may be connected; the fact that the stockholders of two corporations are identical, that one owns shares in the other, and that they have mutual dealings, will not, as a general rule, merge them into one corporation. " Then, again, the case of National Oil Works v. Korn, 114 Sou. 659, the court said: "The corporation remained a legal entity, though another corporation acquired all of its capital stock. There are numerous other cases but it would be useless to cite them to illustrate this well recognized principle of law. When the retail corporations acquired ownership of the motor fuel in question I am of the opinion that a sale took place at that time within the contemplation of the Motor Fuel Tax Act and that the distributor corporation would not be entitled to take any deductions or losses that might occur subsequent to this sale. PUBLIC REVENUE; HOMESTEAD EXEMPTION-May be claimed on homestead lying in two or more counties. May 21, 1940 Mr. Alvin B. Crews Temple, Georgia Your letter of May 16 to Honorable Ellis Arnall, Attorney General, has been referred to me for reply because of the fact that I am the Assistant Attorney General assigned to the Department of Revenue. The Homestead Exemption Law makes no definite provisions as to the manner in which exemption can be claimed in cases where the tract of land lies in two counties. However, the only practice which can be followed is for the exemption to be claimed in both counties and let the exemption apply proportionally according to the value of the property located in each county. The fact that a county line divides a farm should not defeat the right of homestead exemption on the part of the home owner. A farm is considered in one tract if all parts of it join. You understand that under the constitution and laws of our state the Attorney General is not permitted to render official opinions to anyone except the Governor and heads of the departments of state. Therefore, this letter is not to be considered as an opinion. The General Assembly of our state placed the administration of the Homestead Exemption Law in the hands of the authorities of the several counties of our state and, after all, it is a problem which must necessarily be dealt with by each county. Neither the Attorney General nor the Revenue Department has any authority to tell any county officers what they shall or shall not do with reference to the granting of an exemption in any case. E-13 PUBLIC REVENUE; HOMESTEAD EXEMPTION-Executor entitled to file claim for exemption, when. June 9, 1939 Hon. T. Grady Head State Revenue Commissioner You have requested an opinion as to whether or not Hon. John L. Tye, as executor of the estate of Robert L. Tye, deceased, is entitled to file a claim for homestead exemption under the Homestead Exemption Act. The facts in the case are that Robert L. Tye owned and occupied the property sought to be exempt as his home on January 1st. He died on January 8th. The deceased was entitled to the exemption for the year 1939 because the property sought to be exempt was ow11ed and occupied by him on January 1st as his home, provided he filed an application as is required by law. The law makes no special provision as to the filing of this application by an executor of the deceased. However, construing the Homestead Exemption Act together with the general law of our State with reference to the administration of estates, I am of the opinion that the executor would be entitled to file an application for homestead exemption to obtain the exemption to which the deceased was entitled under the law and that the statute as to the date of filing would not bar the application provided the executor qualified as such within a reasonable time and under the facts in the present case I think it would be legal and proper for the aiJplication to be filed and the exemption allowed. PUBLIC REVENUE; HOMESTEAD EXEMPTION-Land not adjoining homestead residence not exempt. June 8, 1940 Hon. T. Grady Head State Revenue Commissioner I wish to acknowledge receipt of your letter enclosing a letter from the Clerk of the Board of County Tax Assessors of Crawford County, in which letter the following question is asked: "In instances where the house in which one lives is disconnected from the tract, in many instances a very small tract, in which the house or residence of land owner lives, but the separate tract is a part of home farm, and the total value of whole is less or not more than exemption allows, can the two tracts, where both constitute one farm, be exempted. " Section 7 of the Homestead Exemption Act (Georgia Laws of 1937-38, page 147) answers the question propounded by the Board of Tax Assessors of Crawford County. This Section is as follows: "As used in this Act homestead means real property owned by the applicant and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership. " Applicant would not be entitled to claim as part of his exemption land which does not join the place of his residence. The Department of Law has held consistently since the passage of this Act that this is the proper construction of the Act. E-14 PUBLIC REVENUE; HOMESTEAD EXEMPTION-Claims for exemption must be filed on or before April 1st. April 22, 1940 Hon. George S. Cargill Attorney at Law Savannah, Georgia Your letter of April 13th in reference to the Homestead Exemption laws addressed to Governor Rivers has been referred to me as I am the Assistant Attorney General assigned to the Department of Revenue. Under the law I am not permitted to render official opinions to anyone other than the Governor and department heads of the State when so requested and anything that I might say in this letter is only a matter of information and is not binding upon you, the tax collector, oranyone else. I note from your letter that on April 1st of this year you were confined at your home because of illness and could not apply for the homestead exemption and that because you failed to apply for the exemption at the proper time the tax receiver has refused you the exemption. Section 2 of the Homestead Exemption Act reads as follows: "The person seel<"jng said exemption shall, on or before April 1st of the year in which exemption from taxation is sought, file a written application and schedule with the county tax receiver or tax commissioner charged with the duty of receiving returns of property for taxation. The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing to make said application for exemption for said year." (Acts 1937-38, page 145.) As you can readily understand from the above provision of law it requires the person seeking an exemption of his homestead to apply on or before April 1st for each year that he desires to be exempted. The question of extending the time for filing the application for homestead exemption is not one that addresses itself to the sound discretion of the local authorities charged with the responsibility of collecting taxes. This is a matter over which the State is without authority to interfere with the local taxing authorities. PUBLIC REVENUE; HOMESTEAD EXEMPTION-County Commissioners or other county officers unauthorized to grant exemption to owner failing to claim by April 1st. December 29, 1939 Honorable W. Enoch West Tax Collector, Catoosa County Ringgold, Georgia Honorable Ellis .Arnall, Attorney General, has handed me your letter of December 26 in which you inquire if the Board of Commissioners of Roads and Revenues of your county has the authority to relieve persons of the ad valorem tax on their property, where such persons applied for the Homestead Exemption in 1938 and still lived on the property in 1939, but failed to apply for the Homestead Exemption or to make a tax return. Your attention is called to Section 2 of the Homestead Exemption Act (Acts of 1937-38, pages 145-150) which provides as follows: "Section 2. The person seeking said exemption shall, on or before April 1st of the year in which exemption from taxation is sought, file a written E-15 application and schedule with the County Tax Receiver or Tax Commissioner charged with the duty of receiving returns of property for taxation. The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing t? make said application for exemption for said year. " Section 2 of the Act would appear to be so clear as to require no construction. I do not find any provision of the act authorizing any State or county officer to relieve a tax payer from the provisions of Section 2 hereinabove quoted. PUBLIC REVENUE; HOMESTEAD EXEMPTION-Personalty exempted is not subject to tax for future bond issues. August 17, 1940 Mr. E. H. Furcron Secretary &Treasurer City of Crawford Crawford, Georgia I am taking the liberty of replying to your letter of August 9th addressed to Mr. Ellis Arnall, Attorney General, because of the fact that he is out of the city and I am the Assistant Attorney General assigned to the Department of Revenue. In your letter you ask whether or not you are entitled to assess and collect taxes on personal property for the retirement of bon.ds and the payment of interest. The case of Campbell v. Redbud School District, 186 Ga. 541, seems to throw some light upon your question. While it is true that the Supreme Court only dealt with real property in this case, nevertheless, the court strongly intimates that its decision would be the same should the question of personal property be presented. On page 547 of the decision the court, in speaking of the exemption of personal property from taxation, said: "Consequently the amendment is to be construed as exempting the personal property as therein provided from taxation for all purposes, from and after January 1, 1938. This would include exemption from ad valorem taxation for payment of principal and interest on a proposed bonded indebtedness of a consolidated school district (a political division of the state) incurred for the purpose of building a schoolhouse. No question is involved as to the effect of the declared exemption as relates to bonded indebtedness incurred before January 1, 1938, or whether it shall be construed as affecting a prior bonded indebtedness, in view of section 10 of article 1 of the federal constitution (Code Section 1-134) inhibiting passage of laws impairing the obligation of contracts. " Under the law the Attorney General and Assistant Attorney Generals are not permitted to render official opinions to anyone other than the Governor and heads of the departments of state and this letter is to be treated only as a matter of information and is not binding upon you or anyone else. We are always glad to be of any assistance that we can to the local officials and taxpayers of the state. E-16 PUBLIC REVENUE; HOMESTEAD EXEMPTION-Joint owners must all reside on the property to claim exemption. February 29, 1940 Han. T. Grady Head State Revenue Commissioner I have a letter dated February 27th from Mr. B. E. Thrasher, Chief Clerk of the Property & License Tax Unit of the Department of Revenue, with a letter attached from Mr. H. W. Elkins, in which he requests information as to the right of joint owners to claim the exemption contained in the Homestead Exemption Act when one of the joint owners does not reside on the property. I call yo:ur attention to Section 7 of the Homestead Exemption Act, Georgia Laws of 1939, page 99, which reads as follows: "As used in this Act homestead means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides . . . " (Emphasis supplied.) I also call your attention to Section 2-1 of the same Act which reads as follows: "Where the property is owned and occupied jointly by two or more persons all of whom occupy the property as a home and if otherwise entitled to a homestead such homestead may be claimed in the names of such joint owners residing in said home. " (Emphasis supplied.) It is clear from the above provisions of law that where the property is owned jointly all of the owners must reside on the property in order to be entitled to the benefits of the Home;tead Exemption Act. PUBLIC REVENUE; INCOME TAXES-Husband divorced from wife does not come within definition of "widower" for exemption. May 8, 1939 Han. Ellis Arnall Attorney General You request that I look into the matter of the claim of Han. W. G. Murrah at the request of your friend Han. J. Arch Avary. In complying with this request I have made some study of the question. I find that it has been the consistent policy of the Income Tax Unit to disallow claims for exemption in cases where the husband and wife were divorced. I presume that the Income Tax Unit arrived at-their conclusion from the following definitions. The term "widower" is defined in Webster's New International Dictionary, Second Edition; Bouvier's La Dictionary, Vol. 3, page 3454; also"Black's Law Dictionary, page 1227, as follows: "A man who has lost his wife by death, and has not married again. " The case of Wait v. Wait, 4 N. Y. 192, gives the following definition: "A widower is a man who has lost his wife by death. " In 68 Corpus Juris, at page 264, we have the following definition: "While in a broad sense the term may include a married man who has lost his wife either by death or judicial decree, strictly speaking, 'widower' being a correlative of the word 'widow' means a man who has lost his wife by death and has not remarried again. " The definition of "Widower" is the same as that of "widow". In the case of Solon v. Holway, 157 Atl. 236, a widow is defined as follows: " 'Widow' as used in a statute allowing tax exemption to widow of Civil War veteran, means a woman whose husband is dead and who has not remarried." E-17 In the case of In Re: McArthur's Estate, 292 Pac.,469, at page 471, we have practically the same definition, to-wit: "Ordinarily the term 'widow' means a woman whose husband is dead and who has not married again. " From all of the above definitions, I am convinced that "the general meaning of the word "widower" is a man who has lost his wife by death, and has not married again. PUBLIC REVENUE; INCOME TAXES-Exemption for "other dependents" allowable for physically disabled sister. March 20, 1940 Hon. T. Grady Head State Revenue Commissioner I am pleased to acknowledge receipt of your letter of March 15th to which letter is attached a letter addressed to you by Judge W. M. Harper which letter is as follows: "For several years I have supported a widowed sister, who is now about 75 years old and for several years has been physically unable to do any kind of work, practically an invalid. In making my income tax return, I overlooked this item of exemption. Is there anything that could be done about it now?" You request my opinion as to whether or not an exemption can be allowed Judge Harper upon the facts set forth in his letter. I am of the opinion that the exemption can be allowed in this case for the following reason: Section 92-3106, subsection (d) which deals with exemptions which may be allowed resident individuals provides as follows: "Four Hundred Dollars for each individual (other than husband and wife) dependent upon and receiving his chief support from the taxpayer, if such dependent individual is under eighteen years of age, or is incapable of self-support because mentally or physically defective. " (Emphasis ours.) The exemption claimed by Judge Harper is for a dependent member of his family. I think an aged sister without means of support would certainly be considered a member of the family of the taxpayer and dependent upon the taxpayer in this case. This construction should not be confused as being contrary to the provision of the income tax law which prohibits gifts to individuals, Section 92-3110, in enumerating items not deductible in subsection (f) provides the following: "Gifts or contributions to individuals. " The status in Judge Harper's case does not conflict with this provision of the law in my opinion. This provision means gifts to individuals other than those who are dependent upon the taxpayer because of family relationship, in my opinion. PUBLIC REVENUE; INCOME TAXES-Deductions for federal net income taxes paid. January 30, 1940 Hon. T. Grady Head State Revenue Commissioner In Re: Mrs. Julia G. Murphy, Income Tax. I have a letter from Mr. S. 0. Gillespie, Director of the Income Tax Unit, dated January 22nd in which he requests information as to the amount or pro- E-18 portion of federal net income taxes that may be deductible from the net income taxable by the State of Georgia when the entire income of the taxpayer is not taxable by this state. I call your attention to Section 7C of the 1937-38 Extra Session Laws, page 155, which reads in part as follows: "Provided, further, that where the entire net income of the taxpayer is not taxable by the State of Georgia, then the taxpayer may only deduct such federal net income taxes in the same proportion that the net income taxable by the State of Georgia bears to the entire net income taxable by the federal government. " This section is clear and unambiguous and therefore requires no statutory interpretation. This provision of the section only applies in cases where the entire net income of the taxpayer is not taxable by the State of Georgia. If the entire income of the taxpayer is taxable by this state then of course this section would not be applicable. Where only a part of the entire income of the taxpayer is taxable by this state the taxpayer may only deduct such federal net income taxes in the same proportion that the net income taxable by the State of Georgia bears to the entire net income taxable by the federal government. In other words, if 50% of the net income is taxable by the State of Georgia and 100% is taxable by the federal government, the percentage ratio would be 50% of the total federal tax. I trust that the above information fully answers the question asked in Mr. Gillespie's letter. PUBLIC REVENUE; INCOME TAXES-Deductions for losses. September 18, 1939 Mr. H. C. Mitchell Agent in Charge Income Tax Unit I have your recent letter in which you request an opinion as to whether a loss sustained by a taxpayer on the sale of realty used as a residence by said taxpayer is a deductible expense from gross income. Your question is answered by Section 92-3109 of the Code of Georgia which reads as follows: "Deductions from gross income. In computing net income there shall be allowed as deductions: " (a) Expenses. All the ordinary and necessary expenses paid or incurred curing the taxable year in carrying on any trade or business, . . . " "(d) Losses. Losses sustained during the taxable year and not compensated for by insurance or otherwise: Provided such losses were "(1) Incurred in the taxpayer's regular trade or business; " (2) Incurred in transactions entered into for profit; . . . " Then we have Section 92-3110 which is as follows: "Items not deductible. In computing the net income no deductions shall in any case be allowed in respect of " (a) Personal, living, or friendly expenses. " In the case under consideration we must bear in mind that the taxpayer is seeking an exemption from the income tax laws of this state. As you know, there is a cardinal principle of law that lays down the rule that all exemptions are strictly construed against the taxpayer. In other words, it is incumbent upon the person seeking an exemption to bring himself clearly within the purview of the exempting statute. E-19 From a study of the above provisions of law I am of the opinion that the taxpayer, in order to be entitled to an exemption would have to suffer the loss in his regular trade or business or such loss would have to be incurred in a transaction entered into for profit. Neither of these exemptions applies to the present case because of the fact that the property in question was used as a residence by the taxpayer. PUBLIC REVENUE; LICENSE TAXES-Corporation taxes collectible from dormant corporation holding privilege to do business. August 2, 1940 Honorable T. Grady Head Commissioner of Revenue Re: CARTER FIRM Meigs, Georgia I have your letter of July 31st together with a communication from Honorable Roy Segler, Attorney at Law, Meigs, Georgia, in which you request an opinion as to the liability of a corporation for the payment of an annual occupation tax as set forth in Paragraph 43 of the General Tax Act when that corporation ceases to do business but fails to dissolve as a corporation. Paragraph 43 of the General Tax Act reads as follows: "All corporations incorporated under the laws of Georgia, except those that are not organized for pecuniary gain or profit and domesticated foreign corporations, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale: ... " It is clear from reading the above provision of law that the tax in question is laid upon the privilege of the taxpayer receiving the privileges of a corporation. It is not necessary that the taxpayer transact business or do anything else other than become incorporated in order to be liable for the payment of this tax. In the case of In Re: Commercial Safe Deposit Company of Buffalo, 266 N. Y. S. 626, the court said: "A corporation must pay franchise tax, though it does not exercise its franchise, so long as it retains the right to exercise it. " In Stagg v. Nissen, 180 S. E. 658, the court said: "Corporation is liable for franchise tax so long as it enjoys privilege granted by state of being a corporation, and it is immaterial whether or not corporation exercises its privilege of doing or carrying on business authorized by its charter or certificates of incorporation. " In New York Telephone Company v. State Board of. Texas, 159 App. 810, the Supreme Court of New Jersey held: "Corporate franchise tax is imposed for privilege of existing in corporate form. " There are many other cases that could be cited to illustrate this general provision of law. In my opinion it does not make any difference that the Carter Firm did not exercise any of the privileges of the corporation. In contemplation of law it was a corporation and the tax in question is laid solely upon this privilege. The nonuser of its corporate powers could not be used as a substitute for dissolution according to law. I also call your attention to an opinion rendered by the late Honorable M. J. Yeomans, Attorney General, on December 11, 1935, dealing with this same question, in which he stated the following: E-20 "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. " I also note from Mr. Segler's letter that the tax in question has already been paid and that he is seeking a refund. There is no provision of law whereby you, as Commissioner of Revenue, would be authorized to make a refund of taxes paid voluntarily as in the present case since there was no erroneous or illegal collection of the tax. PUBLIC REVENUE; LICENSE TAXES-Corporation taxes collectible from holding company, when. May 24, 1939 Hon. T. Grady Head State Revenue Commissioner In Re: Exposition Cotton Mills Company. I have your request for an opinion as to the liability of the Exposition Cotton Mills Company under the Corporation Tax Act. From the facts before me, it appears that the Exposition Cotton Mills Company, formerly a Georgia holding company, was organized in September of 1920 for the purpose of holding the stock of the Exposition Cotton Mills. The Exposition Cotton Mills Company is not engaged in any business and never has been, but only acts as a holding company for the stock of the Exposition Cotton Mills. The Exposition Cotton Mills pays a license tax on all its stock including that which is owned by the Exposition Cotton Mills Company. The question is whether or not the Exposition Cotton Mills Company, which is the holding company, is subject to the provisions of the corporation license tax. Paragraph 44 of the General Tax Act of 1927, page 69, reads as follows: "Corporations, domestic. All corporations incorporated under the laws of Georgia shall, except those that are not organized for pecuniary gain or profit, and those that neither charge nor contemplate charging the public for services rendered, in addition to all other taxes now required of them by law, are hereby required to pay each year annual license or occupation tax as specified in the following scale. " It will be noted that this paragraph contains the words "and those that neither charge nor contemplate charging the public for services rendered." The Forsyth-Hunter Company case, 170 Ga. 641, was decided under this law. The court held in that case: "A corporation chartered by a Superior Court of this State for the purpose 'of pecuniary gain' which owns one piece of real estate, and which does nothing but collect and distribute among its shareholders the rent received for such property from another corporation is not 'doing business' within the meaning of Section 1 of the Act approved August 29, 1929 (Ga. L. 1929, p. 85) 0" The court held that they were not subject to a license tax under the provisions of the statute above mentioned. At the 1931 Special Session this paragraph was amended to read as follows: "Corporations, domestic. All corporations incorporated under the Laws of Georgia, except those that are not organized for pecuniary gain or profit, in addition to all other taxes now required of them by law, are here- E-21 by required to pay each year an annual license or occupation tax as specified in the following scale. " It will be noted that the above provision was omitted from the new Act. This section was again amended by the General Tax Act of 1935 to read as follows: "Section 92-2401. Dome.st).c and Domesticated Foreign Corporations.All corporations incorporated under the laws of Georgia, except those not organized for pecuniary gain or profit and domesticated foreign corporations, in addition to all other taxes now required of them by law are hereby required to pay each year an annual license or occupation tax as specified in the following scale. " It seems to be clear that the Legislature has placed a license tax on all domestic corporations, except those that are not organized for pecuniary gain or profit and domesticated foreign corporations. Certainly the Exposition Cotton Mills Company was organized for pecuniary gain. It pays dividends to its stockholders every time the Exposition Cotton Mills pays money to it. In my opinion it does not make any difference that this corporation does not engage in any other business. The tax imposed upon domestic corporations is not a tax directly upon its capital stock, but rather a tax or fee for the privilege of being a corporation, and for the privilege of using certain powers and receiving certain immunities not granted to an individual. This is a privilege fee or license tax measured by the amount of capital stock. It cannot be said to be a tax upon the business of such corporation as corporations may do a large or small amount of business \vithout the privilege tax being affected. In the case of Richardson v. Citizens Trust Company, 176 Ga. 553, where the State was attempting to collect this tax from a banking corporation the court in permitting the collection of such tax said: "It is not imposed upon banking corporations especially, but upon all corporations chartered by the laws of Georgia, and as such subject to regulation and afforded protection by its laws. It is a license fee for the privilege of engaging in business as a domestic corporation. The law requires domestic banking corporations, in common with all other domestic corporations chartered by the State, no matter what may be the principal object and purpose for which the corporation was created, to contribute this corporation license tax to the support of the State government, in the exercise of the police power of the State. " (Emphasis supplied:) This case clearly holds that the tax in question is a license fee for the privilege of engaging in business as a domestic corporation. From the above facts and from a preliminary investigation of the matter, I am of the opinion that the Exposition Cotton Mills Company is subject to the tax. PUBLIC REVENUE; LICENSE TAXES-Motor vehicle license taxes collectible from trackless trolleys. .June 19, 1939 Hon. T. Grady Head State Revenue Commissioner The following request for information by you as Commissioner to Hon. Ellis Arnall was referred by Mr. Arnall to me because of the fact that I am the Assistant Attorney General assigned to the Department of Revenue: "Recently it was brought to my attention that the Motor Vehicle Unit of the Department of Revenue had not sold tags to the Georgia Power Com- E-22 pany to be used on trackless trolleys. These vehicles are propelled by means of electricity and are so constructed that they may run from one side of the street to the other, but they do operate over given routes. The Georgia Power Company takes the position that they are not required to purchase tags under our Motor Vehicle Registration Law for the operation of these vehicles. "Please give me an official opinion as to whether or not these vehicles come within the law requiring the registration of motor vehicles. "Your usual prompt reply will be deeply appreciated." After a study of this question, I have reached the conclusion and I am of the opinion that under our law trackless trolleys are subject to the maintenance tag tax. I base my opinion on this question upon the following law which is applicable to this question. Code Section 68-101 defines a motor vehicle as follows: "Any vehicle except tractors, propelled by power other than muscular power, not operated exclusively upon tracks. " Code Section 92-1402 which deals with the taxation of motor fuels and kerosene gives the following definition of motor vehicle: " 'Motor vehicles' shall mean and include all vehicles, engines, machines or mechanical contrivances which are propelled by internal combustion engines or motors. " On page 262 of the Acts of the General Assembly of 1937-38, section 3, subsection (a) we find the following definition: "Motor bus. Any passenger carrying motor vehicle having passenger seating capacity of eight or more persons. " I have also found in my study of this question two cases which are in my opinion applicable to the point in question. Our Court of Appeals in the case of Carter v. The State, 12 Ga. App. 430 (4) says the following: "The term 'automobile' has a definite popular significance and is understood to refer to a wheeled vehicle propelled by gasoline, steam or electricity, and used for the transportation of persons or merchandise. " The Court of Appeals in the case of Bonds v. The State, 16 Ga. App.401, states as follows: "The Act of 1910 amended in 1913 regulating the running of automobiles, locomobiles and other vehicles and like conveyances of like character propelled by steam, gas, gasoline, electricity, or any power other than muscular power, upon the public and private roads of the State of Georgia, and providing for the registration and numbering of the same, the use of lights thereon and regulating the running and speed thereof, includes motorcycles propelled by gasoline. " From the cases herein cited and the Code Sections quoted together with the most recent legislation on the subject defining motor bus, I have reached the conclusion above stated-that is, that trackless trolleys propelled by motors should be registered and a license tag purchased for them the same as if they were propelled by gasoline motors. I am submitting this opinion to Hon. Ellis Arnall, Attorney General. who will transmit it to you if it meets with his approval. E-23 PUBLIC REVENUE; LICENSE TAXES-Motor vehicles, definition. January 10, 1939 Hon. T. Grady Head State Revenue Commissioner In reply to your inquiry as to what would constitute a trailer as provided in section 3 (C) of the Motor Vehicle Act. The definition given in the Act is as follows: "Any vehicle without motive power, designed for carrying persons or property either partially or wholly on its own structure and for being drawn by a self-propelled vehicle and operated over the public roads of this State." The question propounded arises as to the classification of the machine which is mounted on wheels and pulled by a truck. The machine in question is used by the Georgia Power Company in repairing their tracks. I presume there are similar machines used for other purposes. The definition above given states that the trailer must be designed for carrying persons or property. The vehicle inquestion is not designed to carry anything except a machine which might be considered a part of the vehicle. I am of the opinion that the property referred to in the above quoted section is property which can be loaded and unloaded and that a vehicle designed and used to transport a particular machine attached thereto and no other property could not be classed as a trailer under the above definition. PUBLIC REVENUE; LICENSE TAXES-Motor vehicles on Jekyll Island subject to license taxes. February 10, 1939 Hon. T. Grady Head State Revenue Commissioner In reply to your letter requesting an opinion as to whether or not motor vehicles owned and operated by residents of Jekyll Island on Jekyll Island exclusively are subject to be registered and tags purchased for the same in accordance with the 1937-38 Act relating to the purchase of automobile license plates. I am of the opinion that residents of Jekyll Island should register and purchase license plates as required under the 1937-38 Act the same as other residents of the State of Georgia. Jekyll Island, althougll owned by a private corporation, is a part of the State of Georgia. Nonresidents of the state who temporarily reside on Jekyll Island would be entitled to operate their automobiles without the payment of any license fee for a period of thirty days provided the vehicle is licensed in the state of their residence. In other words, vehicles operated on Jekyll Island are not excepted from the general law on the subject merely because Jekyll Island is a privately owned property and there are no public highways maintained by the state on said island. Code Section 92-2902 provides the following: "The annual fees for the licensing of vehicles shall be as follows for each vehicle registered: "1. Passenger cars. For each passenger motor vehicle not operated as a common or contract carrier for hire, " etc. It is thus seen that motor vehicles are required to be registered whether they are used upon the public highways of this state or not. if they are used and operated within the state. E-24 PUBLIC REVENUE; LICENSE TAXES-Motor vehicles subject to half-rate license only when under jurisdiction of Public Servic.e Commission. January 19, 1939 Mr. W. H. Wright, Secretary Georgia Power Company Electric Building Atlanta, Georgia Your letter of December 29th to Hon. T. Grady Head, State Revenue Commissioner, requesting refund on certain license tags purchased by your company as shown in itemized statement attached to your letter has been referred to me for reply. You base your claim for a refund under section 8B of the Motor Vehicle Tag Tax Act which is as follows: "If the vehicle described herein is operated under the jurisdiction of the Georgia Public Service Commission as a carrier of passengers, the rate shall be one-half of the amount herein mentioned where the vehicle is operated over a route of fifty miles or less. " The question arises as to whether or not the buses in question are vehicles operated under the jurisdiction of the Georgia Public Service Commission. Subsection B of Section 31 of the Motor Carrier Act is as follows: "(b) Taxicabs, drays, trucks, busses and other motor vehicles, which generally operate exclusively within the incorporate limits or police limits of cities and towns and are subject to regulation by the governing authorities of such cities and towns or by the Commission; and this exception shall apply even though such vehicles may in the prosecution of their regular business occasionally go beyond the incorporate limits of such towns or cities provided they do not operate to or from fixed termini outside of said limits." I am of the opinion that subsection B of section 31 above quoted expressly provides that the vehicles in question are not under the jurisdiction of the Public Service Commission. I discussed this question with Mr. McWhorter, a member of the Public Service Commission, and he stated to me that the Commission had never determined the question as to whether or not the vehicles in question were under the Public Service Commission. I am of the opinion that they are not and for that reason you are not entitled to the refund requested. PUBLIC REVENUE; LICENSE TAXES-Title Insurance Companies, when subject to tax. November 27, 1939 Hon. T. Grady Head State Revenue Commissioner I have your letter of November 22nd in which you request an opinion as to whether the Atlanta Title & Trust Company is subject to payment of the title insurance tax for the year 1940 in view of the fact that said company paid a $300. 00 capital stock tax for the year 1939. Section 9 of the Title Insurance Act (Acts 1939, pages 376 through 381) reads as follows: "Beginning March 1, 1940, and annually thereafter on or before March 1st of each year each corporation engaged in the business of title insurance in this state shall pay to the Revenue Commissioner as an annual license E-25 tax and fee the same percentage of its gross receipts for title insurance premiums on policies covering properties in this State as are levied upon the gross premium receipts of other insurance comp"anies. Such annual license tax and fee shall be paid on gross premiums received by such companies during the preceding calendar year and shall be in lieu of all other licenses, taxes and fees, state, county or municipal, except ad valorem taxes on real and personal property and business licenses to municipalities. " This provision of law reqUires that the title insurance company pay a tax on its gross premium receipts received by such company during the preceding calendar year. However, this is a license to do business during the year 1940 which is based on the gross premiums received during the prior year. This is not a tax or license for the privilege of doing business during the year 1939, the year in which the $300. 00 capital stock tax was paid, but on the contrary, is a license to do business for the year 1940. In my opinion the Atlanta Title & Trust Company is subject to pay the title insurance license for the year 1940 since this is clearly a license tax to permit said company to do business during the year 1940 measured by the gross premiums collected during the preceding year but in no way is this a tax for the year 1939. Therefore, the company in question is also subject to the capital stock tax for the year 1939 since the Title Insurance Act will not become effective until the year 1940. Of course, in the year 1940 the license tax paid on gross premiums would be in lieu of all other taxes for the year 1940, but this does not relieve the Atlanta Title & Trust Company from the payment of its taxes for the year 1939. PUBLIC REVENUE; OCCUPATION TAXES-Carbonic Acid gas used in drinks bottled in Georgia, but sold in Alabama, is taxable. February 7, 1940 Hon. T. Grady Head State Revenue Commissioner I have your letter of February 2nd along with the attached communication from Mr. Mayer of the firm of Lovejoy and Mayor of LaGrange, Georgia, in which you request an opinion as to whether the State is entitled to collect the tax on carbonic gas used in the manufacture of drinks in Georgia when these drinks are sold in Alabama or elsewhere outside the State of Georgia. I note that the taxpayer desires to pay the tax only on the drinks that are sold within this state and to be exempted from the tax on the carbonic gas used in drinks that are sold and consumed without the state. I call your attention to Section 92-805 of the Code of Georgia which reads as follows: "Each person, firm, or corporation engaged in the business of manufacturing or vending soft drinks made of or containing carbonic acid gas or any substitute therefor shall pay, as a privilege license to carry on such business, four cents on each pound of carbonic acid gas or any substitute therefor so used: ... " (Emphasis supplied.) It can readily be seen from a reading of the above provision of law that the tax in question is not a tax on the property itself but is a license tax on the privilege of carrYing on the manufacturing or vending of soft drinks which contain carbonic acid gas or any substitute therefor. Since this is a license tax based on the privilege of manufacturing or vending soft drinks it would make no difference where these drinks might later be sold or consumed in regard to the levy of this tax. This tax is clearly laid on the privilege of engaging in such business E-26 even though it is measured by the number of pounds of carbonic acid gas or substitute therefor actually used. Since this is a license tax, measured by the number of pounds of carbonic gas or any substitute so used, I am of the opinion that the license tax is laid on the privilege of engaging in the business of manufacturing or vending soft drinks containing this product and that a taxpayer engaged in the manufacture of drinks containing carbonic acid gas or any substitute therefor would be subject to the provisions of the above law regardless of where these drinks were sold or consumed. PUBLIC REVENUE; OCCUPATION TAXES-Oars operated for hire (taxicabs) taxable according to schedule. March 6, 1939 Hon. T. Grady Head State Revenue Commissioner Several months ago you referred to me the delinquent taxes due by the Black & White Cab Company of Atlanta, Georgia, under section 34 of the General Tax Act of 1927 which is as follows: "Paragraph 34. Oars Operated for Hire. Upon each person, firm, or corporation operating or keeping automobiles for hire, whether in connection with a garage or not, a tax according to the following scale,. whether in or outside of the corporate limits of any city or town, for each automobile so operated in or near cities or town with less than 1, 000 inhabitants, $5. 00; in or near cities with 1, 000 to 5, 000 inhabitants, $10. 00; in or near cities with 5, 000 to 15,000 inhabitants, $15. 00; in or near cities with 15, 000 to 30,000 inhabitants, $20. 00; in or near cities with 30, 000 to 50,000 inhabitants, $25. 00; in or near cities with more than 50, 000 inhabitants, $40. 00. " My construction of this section is that Black and White Cab Company which operates in Atlanta, a city of more than 50, 000 inhabitants, is due the State an occupational tax to be determined by the number of cabs operated by said company during the taxable year at the rate of $40.00 per cab. The proper method to compute the amount of tax due is to multiply the average number of cabs operated. during the taxable year by $40. 00. This method would carry out the legislative intent in fixing the tax in question. The Act does not read "on total number of cabs registered" but "operated. "It necessarily follows that replacements of registered cabs should not be taxed when the original cab has already been taken into consideration. The average total number of cabs operated during the taxable year is the legal and proper tax to be collected from the taxpayer. I have, after several conferences with the taxpayer, collected the amount of taxes due the State, arriving at the amount due on the basis outlined in this letter, and I am remitting the amount collected which closes the file in this matter. I have discussed this matter with Hon. Ellis Arnall, Attorney General, and he agrees with my construction of this section of the General Tax Act. PUBLIC REVENUE; OCCUPATION TAXES-Chain stores; business operated in the lobby of a hotel is a "store". August 24, 1940 Honorable T. Grady Head Commissioner of Revenue Section 3 of the Chain Store Tax Act (Ga. L. 1937, pp. 75-83) reads as follows: E-27 "The term 'store' as used in this Act shall be construed to mean and in- clude any store or mercantile establishment, whether stationary or travel- ing by motor, either of domestic or foreign ownership, in which any goods, wares or merchandise of any kind are sold either at wholesale or retail, or distributed; Provided, nevertheless, that the word 'store' shall not be held to include: " (a) Manufacturers' plants, or manufacturers' trucks, distributing products of their own manufacture at wholesale only, or vehicles of manu- facturers selling and distributing to wholesalers or retailers products of their own manufacture or processing exclusively. "(b) Factories, depots, warehouses, stores, or other places where only fertilizer and/or cottonseed products or other exclusive agriculture products are sold in bulk only; or where meat or meat products are sold by the per- sons, firms, or corporations slaughtering the animals from which said meat or meat products are obtained and prepared for sale and selling, at least 90% of volume at wholesale. "(c) Depots, warehouses, or platforms where ice is manufactured, stored or sold, nor vehicles used for the delivery or sale of ice. "(d) Depots, dairies, and vehicles used only in the delivery or sale of milk or butter, cheese, ice cream, or other dairy products or malt bever- ap& . "(e) Depots and warehouses and other places where only soft drinks are manufactured, bottled, stored, or sold, including vehicles used in the de- livery or sale of such soft drinks. "(f) Vehicles used only in the delivery or sale of bread and other bakery products, salted nuts, potato chips, sandwiches, and candy. " (g) Stores, yards, warehouses, plants or vehicles used for the purpose of storing, manufacturing, selling, or delivering only building materials, and/or coal, charcoal, wood or coke. "(h) Nor any railroad or similar freight depot which is designed solely for receipt and delivery of freight. "(i) Nor cotton ginneries where only bagging and ties are sold." It should be noted that the above definition of the word "store" is very broad. In fact, it is so broad that it includes any store or mercantile establish- ment. The only limitation placed upon this definition is found within the pro- visions Sections 3 and 4. In other words the Legislature has said that the term "store" includes any' store or mercantile establishment except those places particularly enumerated within the Act itself. The object of incorporating these particular exceptions into the law was for the express purpose of excluding all other exceptions. The word "store" is defined in the case of Pitts v. City of Vicksburg, 72 Miss. 181, as follows: " 'Store' means generally a place where goods are kept and deposited, especially in large quantities; a warehouse; also a place where goods are kept for sale in large or small quantities. It is a generic term, embracing any species of store dealing in any variety of property; so that, under a statute providing for a privilege tax on each store, a junl' shop, the stock in trade of which consists of old chain, rope, iron, copper, parts of machinery and other refuse, is taxable. " In the case of Alcorn v. State, 15 S. 37, the court said: " 'Store' as used in a statute levying a privilege tax upon the keepers of stores, inc:udes a plantation store kept by the planter to furnish his tenants with necessary supplies, as required by his contracts with them. " E-28 After considering the above question I am of the opinion that a business operated in the lobby of a hotel as above described should be classified as a "store" within the definition laid down in Section 3 of the Act and the same is therefore subject to the provisions of the Chain Store Tax Act. :PUBLIC REVENUE; OCCUPATION TAXES-Chain stores; mail order business not dependent on volume in determining tax. March 22, 1939 Mr. J. J. Jones Manchester, Georgia Your letter of March 20th to Hon. Ellis Arnall, Attorney General, has been referred to me for reply. The Chain Store Tax Act, Georgia Laws, 1937, page 77, Section 1A, provides the following: "Section 1-A. That because of the manifest advantages accruing from the operation of mail order stores collateral to, and in conjunction with, the operation of a mail order or catalogue sales type of business, and because of the basic differences inherent in the operation of such a mail order or catalogue sales business there be and is hereby levied an annual license tax upon each mail order store engaged in the sale of goods, wares or merchandise within tbe State of Georgia, where such store is owned, operated, managed or controlled, directly or indirectly, by any person, firm, partnership, corporation or association of persons engaged in the business of selling by mail or in the distribution of catalogues within this State and the filling of orders at retail for merchandise displayed therein as follows: " (1) Upon one store, the annual license fee shall be two thousand ($2, 000. 00) dollars. " (2) For a chain of two stores, the annual license fee shall be four thousand ($4, 000. 00) dollars per store. "(3) For a chain of three stores the annual license fee shall be six thousand ($6, 000. 00) dollars per store. "(4) For a chain of four stores the annual license fee shall be eight thousand ($8, 000. 00) dollars per store. " (5) Upon each store in excess of four stores the annual license fee shall be ten thousand ($10, 000. OO) dollars for each additional store. "Provided, however, that all retail stores operating subservient to such mail order houses and under the same name, shall be exempt from the tax set forth above, except as set forth in Section 1 of this Act. "Provided, further that the tax imposed in this section shall not apply to and shall not be levied upon any store whose catalogue or order list covers only: Seeds, trees, flowers, bulbs, roots, shrubbery, horticultural or agricultural products, fertilizer, tombstones, or other marble products of any of them." As I gather from the contents of your letter you would be operating a small mail order business. The law does not differentiate between a small business and a large business. E-29 PUBLIC REVENUE; OCCUPATION TAXES-Chain stores; tax payable on or before December 31st for following year. . February 1, 1939 Mr. R. B. Jackson, Treasurer Southern Grocery Stores, Inc. Atlanta, Georgia Your letter of January 20th addressed to the Department of Revenue requesting a refund on license No. 33516 issued to Rogers Store, 13 N. Bradford Street, Gainesville, Georgia, has been referred to me for a reply. I have held this letter on my desk several days hoping that I could find some way under the law to make a refund in this case. However, Section 2 of the Chain Store Tax Act is the law in this matter. Section 2 is as follows: "Section 2. Be it further enacted by the authority aforesaid, That the taxes required by this Act shall be paid to the State Revenue Commission on or before the 31st day of December of each year for the following calendar year. At the time of paying such tax, the taxpayer shall file with the Commission on a form to be prescribed by and furnished by the Commission on the application of the taxpayer, stating the name of the applicant, the name and the specific location of each store, operated in this State, and such other facts as the Commission may require. Provided, nevertheless, that the first occupational tax required by this Act shall be due and payable on the 30th day of June, 1937, and shall be for the remainder of the calendar year 1937, for those who on June 30, 1937, are operating a store or a chain of stores as defined in this Act; and provided further that the occupational tax contemplated by this Act for any person first engaging in the store or chain store business after January 1st in any year, including the year 1937, shall be diminished by one-twelfth of the tax required by this Act for every full month already expired in the year in which such new business is commenced." You will note that the tax in question became due and payable December 31st and since the sale was not consummated until after January 1st there is no provision in the law for a refund of this tax. You are in exactly the same position that the owner of real estate is in when he sells his property on January 2nd. Under the law as it now stands, the Department of Revenue has no authority to make the refund requested. PUBLIC REVENUE; OCCUPATION TAXES-Automobile financing tax; Building and Loan Associations subject. August 10, 1940 Honorable T. Grady Head State Revenue Commissioner I have your letter of August 7th together with a communication from Mr. I. L. Mundy in which you request an opinion as to the liability of a corporation incorporated under the Building and Loan Act for a tax on business it transacts as a result of automobile financing. I note that Mr. Mundy takes the position that since the corporation has paid all taxes required of it under the Building and Loan Act it should not be subjected to the further tax imposed upon every firm, person or corporation engaged in the business of automobile financing. This section is codified as Section 92-1512 of the Code of 1933. E-30 I call your attention to the case of Richardson v. Citizens Trust Company, 176 Ga. 553, where the Supreme Court of our State in dealing with a question very similar to the one before us said: "Nothing in the provisions of these sections (sections on banking taxation) either expressly or impliedly excludes any banking association organized under the authority of this state or of the United States from the payment of an occupation or license tax to which all domestic corporations chartered by the State of Georgia are subject." From a study of the above case together with the Code sections involved I am of the opinion that a building and loan association that engages in the financing of automobiles is subject to the payment of the tax as provided for in Code Section 92-1512. The fact that it has paid all taxes required of a building and loan association does not in my opinion exclude it from the further payment of the automobile financing tax as this is a special tax laid on the particular privilege of dealing in this type of financing. PUBLIC REVENUE; OCCUPATION TAXES-Dance hall tax is subject to veteran's exemption certificate. September 29, 1939 Hon. T. Grady Head State Revenue Commissioner I am pleased to acknowledge receipt of your letter of September 26th enclosing a letter which you received from Dr. Sam M. Easley of Dalton, Georgia, in which letter Dr. Easley asks whether or not his veteran's license certificate exempts him from the payment of any state or county occupational tax to operate a dance hall. It is my opinion that the tax levied by the Code, Section 92-2004, is an occupational tax and further that a veteran's certificate of exemption would properly exempt the veteran from the payment of such tax provided, however, that the person operating said dance hall has complied with all the police regulations which are applicable to the operation of such a place of business. A veteran would be in no better position than any other person in reference to the police regulations placed on dance halls. These regulations are set forth on page 361 of the Acts of 1935, page 624 of the Acts of 1937, and page 353 of the Extra Session Acts of 1937-38. It is my opinion that after the veteran has complied with the aforementioned police regulations a proper veteran's certificate would exempt him from the payment of the $100.00 occupational tax. PUBLIC REVENUE; OCCUPATION TAXES-Dance halls, who subject to tax. June 21, 1940 Hon. T. Grady Head State Revenue Commissioner Your letter of recent date enclosing a letter from Hon. Ernest J. Haar who is attorney for the Tybee Amusement Company requests an opinion as to whether or not the Tybee Amusement Company is due to pay a tax upon one dance hall or three dance halls. Paragraph 46 of the General Tax Act of 1935 is as follows: E-31 "Dance Halls and dancing instructors. Upon each person or persons operating public dance halls where dancing is permitted or taught for hire, $100. 00 for each place of business. " (Emphasis supplied.) It, therefore, appears from this provision of the genera( tax act that the Tybee Amusement Company is due to pay the tax prescribed in said Act upon each place of business operated as a dance hall. It is a question of fact as to whether or not this company is operating three places of business or one. I can not possibly determine this fact but if they are separate buildings and an admission charge is charged in each of the places it would seem to me that they would be treated as separate places of business. However if the three join and are operated as one business then of course only one tax would be due. PUBLIC REVENUE; OCCUPATION TAXES-Packing houses, how taxed when operating two places of business. March 20, 1940 Han. T. Grady Head State Revenue Commissioner I am in receipt of correspondence from the Delinquj:mt Tax Unit in regard to the tax liability of Meddin Brothers, wholesale meat dealers of Savannah, Georgia. From the facts before me it appears that Meddin Brothers operate a packing house known as "The Savannah Abattoir" which is located on the Louisville road and the taxpayer maintains a second place of business under the name of Meddin Brothers which is located in the city market of Savannah. The question to be determined is whether the taxpayer is subject to a tax under Section 92-1004 of the Code for the second place of business located in the city market. Section 92-1004 of the Code reads as follows: "Packing houses, etc. Every packing house, butcher plant, or broker, and every person, firm, or corporation acting as agent for any packing house or corporation dealing in packing house products or goods, doing business in this state, shall pay, for each place of business in each county having a city situated therein with a population of 30,000 or more, $300. 00; . . . " I also note in a letter of Febuary 21, 1940, addressed to Mr. J. B. Butler, from Mr. Alex Meddin, who signs his name as a member of the firm of Meddin Brothers, the following facts: "We maintain space in the city market only to take care of boarding houses, restaurants, hospitals, and institutions who can not go to the plant which is located some three miles out and who demand prompt deliveries. Over fifty per cent of this business are called customers who pay cash and carry out their own purchases. We intend to convert this space within the next month or so into a strict cash and carry business to enable us to compete with chain stores and super markets. " I also note from the stationery on which this letter is written that the taxpayer is an agent for Harmel Food Products which is itself in the meat packing business. I further note that in the Savannah telephone directory the taxpayer is listed under the heading "Abattoirs" and that the place located in the city market is listed under the heading "Meat Packers. " From all of the above facts taken into consideration with the provisions of Code Section 92-1004, I am of the opinion that the place located in the city market is only an agency of the packing house proper which is located on the Louis- E-32 ville Road and that the taxpayer is liable for a tax of $300 for this second place of business located in the city market.. It further appears that Meddin Brothers is not only an agent for the Savannah abattoir but that it also acts as an agency for Hormel Food Products. I believe that these facts are sufficient in law to make the taxpayer subject to the provisions of Section 92-1004 of the Code of Georgia. PUBLIC REVENUE; OCCUPATION TAXES-Packing houses subject to tax according to county population except in counties having cities of 30,000 or more population. July 27, 1940 Hon. T. Grady Head State Revenue Commissioner I have your letter of July 23rd together with a communication addressed to Mr. J. G. Rockmore, of the Delinquent Tax Unit, in which he requests an opinion as to the construction of Paragraph 81 of the General Tax Act of 1935 which levies a special tax on packing houses, brokers and butcher plants. The letter states the following facts: "We have been collecting a tax of $55.00 from the West Packing Company at Cairo, Georgia. They owe their 1939 and 1940 tax and they refuse to pay the tax, claiming that under the last census the population of the city of Cairo is less than 5000 and that consequently they only owe $25. 00. If the statute means what it says, it would appear that in place of only $25. 00 they would owe $150. 00. " Paragraph 81 of the General Tax Act reads as follows: "Upon every packing house, butcher plant, broker or brokers and upon every person, persons, firm or corporation acting as agent for any packing house or corporation dealing in packing house products or goods, doing business in this state, for each place of business in a county having a city situated therein with a population of 30, 000 or more, $300. 00, for each place of business in each county with a population of from 15, 000 to 30, 000, $150. 00, for each place of business in each county with a population of from 5, 000 to 15, 000, $50. 00, for each place of business in each county with a population of less than 5, 000, $25. 00. " The question presented by Mr. Rockmore is whether the word "population" as used in the Act refers to the city or county. It should be noted that the tax is laid on each place of business in each individual county. The only mention made of the word "city" is with reference to a population of 30, 000 or more. The other three divisions of population defined in the paragraph refer to the population of the counties. I note from the attached letter that the place of business of West Packing Company is located in a county with a population of from 5, 000 to 15, 000. Clearly this division of Paragraph 81 is based upon the population of the county and not of the city. Therefore I am of the opinion that the taxpayer in question is subject to the tax based upon the population of the county rather than that of the city. It should be noted that the last three divisions of Paragraph 81 are based upon the population of the county wherein the business is located. For instance a business located (a) in each county with a population between 15, 000 and 30,000 would pay a tax of $150.00, (b) in each county with a population of 5, 000 to 15,000, $50.00, and (c) in each county of 5, 000 or less, $25.00. The only division E-33 of this paragraph that is based upon the population of a city is where the county has a city situated therein with a population of 30, 000 or more. In those counties having a city situated therein with a population of 30,000 or more the tax is $300. 00. If there is no city with a population of 30, 000 or more Within the county then the tax is based upon the population of the county. PUBLIC REVENUE; OCCUPATION TAXES-Professional taxes payable in the county of the tax payer's residence. April 10, 1939 Hon. T. Grady Head State Revenue Commissioner Attention: Mr. B. E. Thrasher In reply to a request for an opinion in accordance with a letter of Mr. G. T. Brock, Tax Collector, Habersham County, to Mr. B. E. Thrasher, dated April 6th, copy of which is hereto attached, I am of the opinion that the proper place for Dr. H. E. Crow and Dr. Welchel to return and pay their professional taxes is the county of their residence. Dr. Crow and Dr. Welchel, as I understand it, have no place of business. They are employed by the State as physicians at the sanitorium at Alto which is in Habersham County. The Attorney General and all Assistant Attorney Generals, although they have an office in Atlanta at the State Capitol, pay their professional taxes in the counties of their respective residences. The letter of Mr. Brock asked the further question as to where Dr. Crow and Dr. Welchel should pay their poll taxes and vote. The answer to this question is in the county of their residence. This is fixed by the Constitution of our State which provides the following: "2-603. Par. III. Who entitled to register and vote. To entitle a person to register and vote at any election by the people, he shall have resided in the State on 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." PUBLIC REVENUE; OCCUPATION TAXES-Typewriter dealer or agent for salvage subject. May 24, 1939 Mr. I. T. Cohen Attorney at Law First National Bank Bldg. Atlanta, Georgia I have your request for an opinion as to whether or not a company is subject to certain provisions of the General Tax Act. From the facts before me it appears that the company is engaged in a general salvage business and that in the general course of this business it buys and sells adding machines, cash registers, typewriters, weighing machines, safes and vaults. It does not carry a regular stock of these items, neither does it guarantee the quality of them, nor maintain a service department. The company merely purchases these stocks, mostly in E-34 bulk, and disposes of the same in any manner that it can. Of course it goes without saying that the company always attempts to make a profit on each individual item. Paragraph 92 of the General Tax Act is as follows: "Safes and vaults. Upon each person, firm or corporation or agents thereof, selling safes or vaults, or vault doors or other vault fixtures, $50.00 for each place of business. " Paragraph 70 of the General Tax Act is as follows: "Machines, typewriters. Upon every manufacturer of, or wholesale or retail dealer in, or agent for the sale of any typewriter or typewriting machine, $25.00 for each place of business in counties of 30, 000 population or under ... " Paragraph 68 of the General Tax Act is as follows: "Machines, weighing or calculating. Upon each manufacturer or wholesale or retail dealer in, or agent for the manufacture of any weighing scale or scales for calculating weight or prices of commodities, $25. 00 for each place of business in this state ... " Paragraph 67 of the General Tax Act is as follows: "Machines, store cash registers. Upon each manufacturer or wholesale or retail dealer in, or agent for the sale of any cash or account register, $100. 00 for each place of business in this State . . . " Paragraph 69 of the General Tax Act is as follows: "Adding machines. Upon every manufacturer of, or wholesale or retail dealer in, or agent for the sale of any adding or calculating machine, check protector, and retailing for more than $10. 00, $25. 00 for each place of business ... " We are confronted with the question of whether the company in question should be classified as a dealer of the above mentioned machines. Webster's New International Dictionary gives the following definition of a dealer: "A person who makes a business of buying and selling goods, as distinguished from a manufacturer, without altering their condition." "A dealer is one who buys to sell to others at a profit." In Re: Delaware & H. Canal Co., 8 Pac. 496. "Dealer is a term of trade, having a distinct and well known signification, as that of merchant, mariner or broker. It means one whose business it is to buy and sell; the middle man who stands between the producer and consumer; one who derives his profit from his skill in knowing when to buy and how to sell the products of others. "Barton v. Morris, 1 Pac. 360. In 17 Corpus Juris, p. 1155, we have the following definition: "A dealer, in the common acceptation, and, therefore in the legal meaning of the word, is not one who buys to keep or makes to sell, but one who buys to sell again. " Another definition given in Corpus Juris is: "A person who buys and sells for the purpose of gain and profit, one who buys to sell to another at a profit. " In the case of Fichtenberg v. City of Atlanta, 126 Ga. 62, Justice Lumpkin gives the following definition: "The word 'dealer' generally applies to one who buys and sells,- a trader." From the above definitions, I am of the opinion that the company in question should be classified as a dealer in the machines above mentioned, and is therefore subject to the tax. In my opinion it does not make any difference that the company buys all the machines in bulk and disposes of them separately for E-35 the fact remains that the company is dealing in these machines and is engaged in the business in contemplation of earning a profit. The mere fact that it buys various types of machines would not make it any less amenable to the tax. From the facts before me it also appears that these machines are hot sold as junk, but rather as useable merchandise. The company would not be relieved from liability as a dealer under the terms of this Act simply because it did not guarantee its merchandise, or have a department to keep the same in repair. The only other fact that I can conceive of that would keep this company from being a retail dealer and subject to the tax would be that it only deals in these machines rarely, that is, that each transaction would be such that it would have to be classified as an isolated proposition. From the facts in this letter it is made to appear that the company deals rather continuously in this business. PUBLIC REVENUE; OCCUPATION TAXES-Royalties tax collectible only in the county where office is maintained in this State. March 7, 1940 Honorable Creek L. Rice Attorney General The State of Mississippi Jackson, Mississippi I am writing you this letter at the request of Mr. I. T. Cohen, Southeastern Counsel for the American Society of Composers, Authors and Publishers, with headquarters in Atlanta, Georgia. Mr. Cohen informs me there is in the State of Mississippi a similar law to the one enacted by our General Assembly in 1935 (Acts 1935, p. 83) , which is as follows: "92-512. COPYRIGHTED MUSIC AND RADIO PROGRAMS. -Each person, as agent for another, or as a representative of another in any capacity, collecting, or attempting to collect, or receiving money or other valuable consideration, for rights, royalty, rents or fees on copyrighted music, recorded music for mechanical reproduction, or radio programs, shall be required to pay the sum of $1, 000 to the county tax collector, or tax commissioner, in each county of this State where such collection or attempt to collect is made. " I wish to advise that this offiC(l has ruled that the American Society of Composers, Authors & Publishers is subject to the payment of this tax ONLY in the county in which it maintains an office in the State, and it is not construed by me to be an attempt to collect this tax in all other counties of the State in which the ASCAP field representatives travel for the purpose of contacting musicusers and explaining the provisions of the United States Copyright law, as well as the aims and purposes of the Society, to the music-users. It is the duty of the field representatives of the Society to prepare license agreements for the musicusers and forward them by mail to the Society's office in the county in which it maintains its office; the Society's representatives may also accept checks in payment of license fees as the agent of the music-user, such checks to be forwarded by the representative to the Society at the Society's office in the State; said license agreements and checks being subject to the approval of the person in charge of the District Office of the Society. I am of the definite conclusion that to enforce this tax in EVERY county of the State of Georgia would not only work a hardship on the Society but would also work a hardship on the music-users of the State, and might be construed E-36 by the courts to levy an unreasonable tax which would prohibit a legitimate business, because the Society informs me that it would not comply with this interpretation of the law, and its only redress would be to institute suits for statutory damages under the provisions of the United States Copyright law, which states that a copyright owner is entitled to recover not less than $250 nor more than $5, 000 in EACH case of infringement. Therefore, it would be less expensive for the music-users in the State if the Society were not forced to seek redress under the provisions of the United States Copyright law. I am further of the opinion that if our State were to insist upon enforcement of the above interpretation of the statute and tax the Society out of business it would automatically deprive its citizenship of the use of copyrighted music for public performance. I might further state that the Society has complied with our interpretation of the law and paid the $1, 000 tax. Mr. Cohen, representing the American Society of Composers, Authors & Publishers, has cooperated with the State in the collection of the tax in question and has convinced me that the organization serves a useful purpose to the music-users as well as adding to the cultural life of the State. PUBLIC REVENUE; STATE DEPARTMENT OF REVENUE-Commissioner authorized to pay membership fees in North American Tax Conference. February 6, 1939 Hon. T. Grady Head State Revenue Commissioner In reply to your letter of January 13th and also your letter of February 3rd with reference to the same subject matter, I am of the opinion that you have authority to pay from your appropriation the bill for your membership dues in the Conference of State Liquor Administrators and also the bill for your membership in the North American Tax Conference. Your letters recite facts which show that because of your membership in these two organizations you have been able to study the tax laws of other states and to secure the cooperation of other states in the administration of our state tax laws. Your letters also state that the information and cooperation received from other states because of your membership in these two organizations has been of great benefit to the state. The Act creating your office, Section 5, 'page 81, Georgia Laws 1937-38, in subsection (b), outlining the duties of your office makes the follo.}ving provision: "(d) Make a thorough study of taxation in Georgia and elsewhere with a view to the improvement of administration and legislation affecting the people of Georgia. " It is your duty to make a thorough study of taxation in Georgia and elsewhere. Elsewhere necessarily refers to other states. Your study is not to be confined to the State of Georgia. It necessarily follows that if, in your opinion, a membership by you as State Revenue Commissioner of the State of Georgia in the North American Gasoline Tax Conference and in the National Conference of State Liquor Administrators will enable you to make a study of the administration of tax laws of other states with a view of assisting you in the administration of the tax laws of Georgia and that such membership will furnish you with information as to the legislation and procedure in other states so that you can make an annual report to the Governor of Georgia and a biennial report E-37 to each regular session of the General Assembly as required by law, the object of said report being the improving of our tax system. The payment of the dues in question is in my opinion expressly authorized under the Act creating your Department. I have discussed this matter with the Attorney General and he is of the same opinion. PUBLIC REVENUE; STATE DEPARTMENT OF REVENUE-Commissioner may employ personnel to collect hunting and fishing licenses. October 28, 1939 Hon. T. Grady Head State Revenue Commissioner The Auditor has in his reply suggested to you that under the Act known as "The Administration of Taxing Laws Act" (Acts 1937-38, pp. 77 to 103) the authority to collect hunting and fishing licenses is delegated to you as State Revenue Commissioner. There is no special provision in this Act authorizing you to delegate the authority vested in you to collect these licenses. However, under Section 11 of the Act you are authorized to employ personnel to assist you in the performance of your duties, said section being as follows: "Section 11. Authority to Employ and Discharge Personnel. -The State Revenue Commissioner is hereby authorized to employ and discharge and fix the compensation of such personnel for office and field staff within the limitations of the appropriation as he may deem proper. The Commissioner is hereby authorized to organize his Department, assign his employees, and discharge the responsibilities incident to administration of the State Tax System in such manner as he may deem proper. Provided, however, all employees engaged directly or indirectly in the assessment, investigation or collection of tax under this Act shall be employed upon a fixed salary basis and not upon a commission or contingent fee basis. Provided, however, any salary in excess of $300.00 per month, shall be subject to the approval of the Governor." In determining the question propounded, I have studied the Game and Fish Law with reference to the sale of licenses. Section 45-218 is particularly applicable to your inquiry and is as follows: "45-218. Sale of hunting, fishing, and trappers' licenses; bond of seller; records. -The Commissioner of Game and Fish shall place for issuance and sale, with the ordinary of each county, hunting, fishing, and trappers' licenses that may be required by law, and it shall be the duty of said ordinary to place such licenses on sale and remit the proceeds therefrom to the Commissioner of Game and Fish as hereinafter required: Provided, however, the Commissioner of Game and Fish may also, within his discretion, place licenses on sale with any reputable individual or corporation, who shall be required to give a special bond in the sum of not less than $1, 000, in some solvent surety company to be approved by the Commissioner, conditioned for the proper accounting for all licenses so received and sold, and such person or corporation selling licenses shall be required to remit for licenses sold in the same manner as herein required of ordinaries. Each person who shall sell licenses shall be required to keep a record book, open to the public inspection, in which he shall list all licenses sold by him, such book to be prepared and furnished by the Commissioner of Game and Fish along with E-38 necessary forms for making monthly reports or such other reports as may be required by the Commissioner. " Construing the Act creating your office together with the Game and Fish Law I am of the opinion that it is within your discretion to employ personnel and that thepersonnel so employed shall be bonded as provided by law. I wish to call your attention to the portion of Section 11 which does not authorize you to fix the salary of any employee on contingent or commission basis. For that reason, in case you should see fit to work out some plan to more efficiently and economically sell hunting and fishing licenses in the State it would be necessary for you to place such employee upon a salary. I also wish to call your attention to the fact that the Act herein referred to creating your office was passed subsequent to the Game and Fish Laws of this State and would repeal any conflicting statutes. PUBLIC REVENUE; STATE DEPARTMENT OF REVENUE-Refunds of malt beverage taxes. February 19, 1940 Hon. T. Grady Head State Revenue Commissioner In response to your request for an opinion as to whether or not you will be authorized under the law to make refunds to distributors of malt beverages for the tax paid by them on malt beverages sold to army canteens, etc., located on government reservations. Subsection B of section 34 of Georgia Laws of 1937-38, pages 77-103, inclusive, provides as follows: "In any case in which it shall be determined that an erroneous or illegal collection of any tax or license has been made by the Commissioner, the tax- payer from whom such tax or license was collected may file a claim for re- fund with said Commissioner in writing and in such form and contain such information as the Commissioner may require, to include a summary state- ment of the grounds upon which the taxpayer relies. In the event the tax- payer desires a conference or hearing before the Commissioner in connec- tion with any claim for refund he shall so specify in writing in the claim, and if the claim conforms to requirements of this section said Commissioner shall grant such a conference at a time he shall specify. The Commissioner shall consider information contained in the taxpayer's claim for refund and such other information as may be available, shall approve or disapprove the taxpayer's claim and notify the taxpayer of his action. In the event any claim for refund is approved the Commissioner shall forthwith proceed 11-nder subsection A of this section to give effect to the terms thereof. Pro- vided, further, that the taxpayer whose claim for refund is denied by the Commissioner under the terms of this Act shall have the right to sue in the Superior Court of the county in which said taxpayer shall have the right to appeal from a judgment by the Board of Tax Appeals as provided in this I Act." Subsection A is as follows: "There is hereby appropriated from the proceeds of every tax and license f imposed by law a sum sufficient to refund taxpayers any and all such taxes l which may be determined to have been erroneously or illegally assessed and collected from such taxpayers under the laws of Georgia whether paid voluntarily or involuntarily. Such refunds shall be drawn from the treasury I I E-39 on warrants of the Governor issued upon itemized requisitions showing in each instance the person to whom the refund is to be made and the amount thereof and the reason therefor. " The particular petition presented to me is the petition of R.' H. Hogg & Company. This petition alleges: A. That said company is engaged in the business of wholesaling malt beverages in the State of Georgia and is duly licensed by the State of Georgia, County of Fulton, and City of Atlanta. B. That in the conduct of their business they sold malt beverages to canteens, etc., located on government reservations within the State of Georgia. C. That they have been engaged in the business approximately five years. D. That they are not liable for any tax on beer sold to said canteens, etc., which are controlled by the United States Government and located on government reservations over which the lJnited States Government has jurisdiction. E. That the officials of the State of Georgia in charge of the administration of the Malt Beverage Act and the collection of the tax imposed therein have always made refunds on tax-paid crowns which were placed upon beer and sold on government reservations and that it has been the consistent policy and rule of the Department of the State of Georgia charged with the administration of the Malt Beverage Act and the collection of this tax to make said refunds. F. That a tax of $464. 01 was erroneously or illegally paid by petitioner. G. That they have filed with the Commissioner of Revenue statements showing that said malt beverages were actually delivered to the canteens, etc., on government reservations and evidence of delivery is on file in the office of the Commissioner of Revenue. You ask the question as to whether or not this claim and similar claims may be legally paid by you under the facts set forth in the petition of R. H. Hogg & Company. I am of the opinion that you have authority under the law to make the refund prayed for in the petition for the following reasons: 1. There is a very serious doubt in my mind as to whether or not you have authority under the law to collect taxes on property sold within the confines of a government reservation which is owned and controlled by the United States Government. This particular problem arose on the sale of gasoline and the United States Congress passed a special Act giving state officials the right to collect gasoline tax. However, there is no federal statute with reference to malt beverages. 2. I am of the very definite opinion that it is legal to make this refund because of the administrative policy coupled with subsequent Acts of the Legislature which to my mind clearly settle the question without going into detail as to the first premise laid down in this opinion. Throughout the administration of the Malt Beverage Act in the State of Georgia it has been the consistent policy and rule of the department collecting the tax imposed under this Act to make the refunds in question. The Malt Beverage Act has been amended from time to time and the General Assembly had actual or constructive knowledge of the practice being followed. The last Act of the General Assembly amending the Malt Beverage Act was approved March 24, 1939, and is found in Georgia Laws of 1939, pages 101-103, inclusive. Section 5 of this Act recognizes and enacts into law the practice which had heretofore been followed by the Revenue Department in the following language: E-40 "Provided there shall be no excise tax on the sale of malt beverages sold to persons outside this state for resale or consumption outside of this state, nor upon sales of malt beverages sold to stores or canteens located on United States Army Posts or Reservations. " This opinion is supported by numerous decisions of the United States Courts. The latest case on this particu1ar point is the case of Guy T. Helvering, Collector of Internal Revenue v. R. J. Reynolds Tobacco Company, 306 U. S. 101-107, in which case the Supreme Court of the United States, in headnote 3, states the following: "The reenactment of a statute without change gives an established ad- ministrative construction the force of law." It will be noted that in this particular case the law was only amended and made no reference to the rule and did not deal with the rule or administrative practice. In other words, there was no statute to either affirm or disaffirm the rule. The mere fact that the rule existed and the law was amended during the existence of the rule or administrative practice was sufficient. However in this particular case the legislature has by an affirmative Act confirmed the ad- ministrative practice of the Department of Revenue by expressly providing that the tax should not be collected on government reservations in the language hereinbefore quoted. This was also held to be the law by the United States Circuit Court of Appeals in the case of Stutz Motor Car Company of America v. United States, SO Fed. Reporter, 2nd Series, page 623, in which case the Court in headnote 8 stated the following: "Congress by re-enacting the provisions of the Revenue Act under which regulations were promulgated held to have approved such regula- tions." Also in the case of C. V. Starr Company, Federal Incorporated, U. S. A. v. Commissioner of Internal Revenue, 101 Fed. Reporter, 2nd Series, page 611, the United States Circuit Court of Appeals, in headnote 3, held: "Regulations promulgated by administrative officers without authority of Congress, carrying into effect provisions of a federal statute have force and effect of law if consistent with statute." Also in the case of Northwestern Utilities Securities Corp. v. Helvering, Commissioner of Internal Revenue, 67 Fed. Reporter, 2nd Series, page 619, the United States Circuit Court of Appeals, in headnote 1, held: "Internal revenue regulations reasonably adapted to carry out legis- lative intent and adhered to for considerable period during which Congress repeatedly reenacted without change statute to which regulations apply should not be disturbed unless plainly wrong. " Also in the case of Curtis v. Commissioner of Internal Revenue, 157 Fed. Reporter, 2nd Series, page 847, the United States Circuit Court of Appeals, in headnote 1, held: "Treasury regulation, constituting contemporary administrative con- struction of tax statute should not be overruled except for weighty reasons." E-41 The decisions along this line are consistent with this principle of law and are of such great number that I hesitate to quote any further. If you determine that the facts and things set forth in the petition of R. H. Hogg & Company are true it is my opinion that you are authorized to make the refund as prayed in his petition. PUBLIC REVENUE; ASSESSMENTS-Unreturned property, how assessed for ad valorem taxes. September 14, 1939 Hon. W. W. Armistead Attorney at Law Crawford, Georgia I have made a preliminary study of your question concerning the collection of certain back taxes and the method of issuing executions for said taxes. I believe you will agree with me that Code Section 92-6702 is controlling. That section reads as follows: "When such property is of that class which should be returned to the tax receiver of the county, the said tax receiver shall notify in writing such delinquent, or, if dead, his personal representative or representatives of such delinquency, requiring that a return shall be made thereof within twenty days. " The authorities seem to be uniform on the proposition that where fi. fas. are issued against "the estate said fi. fas. are without legal effect." It seems reasonable to assume that if a fi. fa. issued in the name of an estate is void, likewise a return made by the wrong party or in the wrong name would be of no effect. I am of the opinion that, if the returns in this case were not made by the proper parties, you will have to disregard the fi. fas. already issued and start anew under Section 92-6702 as above set out. If there is any doubt in your mind as to whether or not these returns were made by the proper parties, it seems to me that it would be much better to start over again and not take any chances. On the other hand, if your records show that the proper party made the returns in question, then, of course, this would be sufficient notice and you could proceed with your present executions. I am sure that you will agree with me in saying that Sections 92-6701 through 92-6703 are controlling in this case and that it is a matter for you to decide after examining the returns made for the previous years as to whether or not these returns were made by the proper parties so as to constitute notice to them. Again, may I state in closing that if you have any doubt as to this question, I would proceed under Section 92-6702 of the Code in order to avoid the possibility of pursuing the wrong procedure. If I can be of any further assistance to you in this matter, please feel free to call upon me. PUBLIC REVENUE; COMPENSATION OF COLLECTORS AND RECEIVERS-Tax receiver is not entitled to commissions on returns for local school taxes. Hon. J. Hines Sellers August 26, 1939 Tax Receiver Appling County Baxley, Georgia Your recent letter to Hon. Ellis Arnall was referred to me for reply upon receipt thereof by him because of the fact that I am the Assistant Attorney General assigned to the Department of Revenue. E-42 The question propounded in your letter as to whether or not tax receivers are entitled to commissions on local school taxes is answered in the case of Hurst, tax receiver, v. Board of Commissioners of Burke County, 157 Ga. 648, said decision being as follows: "1. The tax-receiver was not entitled to the commission on the countywide school tax which was computed and levied from digests prepared by him. "2. 'The provision for paying commissions to the county tax-collector and receiver for services rendered in connection with State and county tax, as provided in sections 1234 and 1202 of the Civil Code, that the tax-receiver shall receive the same compensation as the tax-collector for such services, does not embrace a provision for paying the receiver commissions for any services in connection with the levy of the county-wide tax for school purposes, raised under the provisions of our code of school laws. ' Board of Education of Decatur County v. Drake, 157 Ga. 8 (121 S. E. 645). In the case just quoted from, mandamus was directed against the Board of Education of Decatur County. In the present case it is brought against the Board of Commissioners of Roads and Revenues of Burke County. The ruling in the above-cited case is applicable to the facts of the instant case; and regardless of whether the suit should have been brought against the Board of Education of Burke County as insisted, or the Board of Commissioners of Roads and Revenues, the plaintiff was not entitled to a mandamus at all; and the court did not err in dismissing the petition on motion. " PUBLIC REVENUE; DORMANCY OF TAX EXECUTIONS-Limitations for for assessment and execution. July 30, 1940 Honorable T. Grady Head State Revenue Commissioner I am pleased to acknowledge receipt of your letter of July 23rd, together with the communication from Mr. H. S. Willingham of the Intangible Tax Unit, in which an opinion is requested as to whether there is a statute of limitations on franchise taxes due by foreign corporations domesticated under the laws of this State. Chapter 92-24 of the Code of Georgia contains the scale of taxes for both domestic and domesticated corporations but does not have any provision of limi- tation whatsoever. The same thing applies to Chapter 22-16 of the Code which applies to the domestication of foreign corporations. Neither of these chapters refers to any period of limitation upon the assessment of franchise taxes against corporations. The case of State Revenue Commission v. Edgar Brothers, 185 Ga. 269, is a case dealing with a situation similar to the one now under consideration. The Court held in that case that since the Income Tax Act of 1929 did not contain a period of limitation an assessment could be made at any time. By the same reasoning I am of the opinion that an assessment for franchise taxes due the State of Georgia could be made at any time since the above mentioned Acts do not contain periods of limitation. Section 92-7701 of the Code places a limitation upon tax executions and provides that: j l "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 ! E-43 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 in books in which said entries are required to be made in cases of entries on executions issued on judgments." This section applies only to executions and limits their life to a period of seven years. However, there is no limit placed upon the time an assessment can be made prior to the issuance of an execution and I am of the opinion that since an execution has not been issued in the particular case stated in Mr. Willingham's letter it would be proper at this time to issue an execution against the corporation in question for franchise taxes due the State of Georgia from the year 1929 mentioned in his letter down to the present date. PUBLIC REVENUE; REDEMPTION OF PROPERTY SOLD FOR TAXES-How county may re-sell. May 22, 1939 Committee on Economy & Efficiency The General Assembly by an Act approved March 31, 1937, Acts of 1937, pp. 491-496, inclusive, and in section 2 of said Act provided the following: "Section 2. Be it further enacted by the authority aforesaid, that when- ever any real property shall be sold under or in obedience to any execution issued for the collection of State, county, city, municipal or school taxes, or special assessments, the defendant in fi. fa., or any person having any right, title or interest in or lien upon said property, may redeem said property from said sale at any time within twelve months from the date of said sale, and at any time thereafter until the right to redeem shall be foreclosed by the giving of the notice hereinafter provided for, by the payment of the redemption price, or amount required for redemption, as hereinafter fixed and provided. "After twelve months from the date of such sale, the purchaser at such sale, or his heirs, successors or assigns, may terminate, foreclose, divest and forever bar the right to redeem said property from said sale by causing a notice, or notices, of such foreclosure to be served, as is hereinafter more fully provided, upon the defendant in the execution under, or in obedience to which said sale was held, and upon the occupant, if any, of said property, and upon all persons or corporations having, of record in the county in which said land is located, any right, title, or interest in or lien upon said property, provided that nothing herein shall be construed to require that any notice shall be given to any person whose right, title or interest in, or lien upon said property does not appear of record in the county in which said land is located. Provided that heirs of any deceased owner of any such land shall be served by the sheriff or notified as provided herein. " It will be noted that this provision of law provides for a notice in addition to the statutory period heretofore provided by law. When the statutory period and notice have been given in accordance with the provisions of this Act the taxpayer has no further interest in the property, assuming that the sale is legal in all other respects. In answer to the question as to whether or not there is any statute which provides any form of sale or advertisement in cases where a county has acquired legal title to property at a tax sale, the answer is, "No." The practice followed in the absence of local laws on the sale of county property is for the county authorities having charge of the fiscal affairs of the county to pass a resolution and enter the same on their minutes authorizing the sale of the property. E-44 Some counties post a notice or run an advertisement but this is purely a matter of discretion with the county authorities, there being no general state law on the question requiring any specified kind of advertisement or specified manner of sale. PUBLIC REVENUE; SALE, POSSESSION OR USE TAXES-Cigar and cigarette stamps must be affixed when given away. April 22, 1940 Hon. T. Grady Head State Revenue Commissioner I have your letter of March 26th together with the letter from Liggett & Myers Tobacco Company with reference to their proposal to give away unstamped cigarettes as a promotion project in this State. There seem to be two questions asked in your letter. The first, with reference to giving away unstamped cigarettes, and the second, the giving away of an unstamped package of cigarettes upon the sale of a regular package which bears the State revenue stamp. Section 1 of the Cigar and Cigarette Tax Act (Acts of 1937-38, page 130) reads in part as follows: "... Every person, firm, corporation, club, or association within the State of Georgia who sells and/or stores and/or receives for the purpose of distribution to any person, firm, corporation, club, or association within the State of Georgia ... shall pay to the State of Georgia for state purposes only a license or privilege tax which shall be measured by and graduated in accordance with the volume of sales of such person, firm, corporation, club or association in Georgia, in cases where sales are made ... " Section 17 of the same Act reads in part as follows: "Each and every person, firm, corporation or association of persons not engaged in the business of selling or offering for sale any of the tobacco products taxable under the provisions of this Act as wholesaler, retailer, jobber, or otherwise and not engaged in receiving any of the products taxable under the provisions of this Act for distribution to any person or persons, firm, corporation, club or association of persons within the State of Georgia as a part of a pooling agreement or otherwise but who is engaged in the business of transporting and/or distributing in any manner whatsoever within the State of Georgia any of the taxable products enumerated and defined in this Act to any person or persons for his own personal use or for the use of himself or his family or to any dealer or persons receiving taxable products as defined by this Act for distribution to any person, firm, corporation, club or association as a part of a pooling agreement or otherwise or who shall give away as samples, trade premiums, or for any other purpose products taxed by this Act shall before transporting and/or distributing and/or giving away any such tobacco products as enumerated and defined herein secure a permit so to do from the State Revenue Commissioner ... Each such person, firm, corporation or association of persons securing a permit as herein provided shall be allowed for each such permit so secured one vehicle for the purpose of transporting and/or distributing and/or giving away such tobacco products." (Emphasis supplied.) From the above provisions of our Cigar and Cigarette Tax Act together with other provisions of the Act, I am of the opinion that it would be legal for the manufacturers or distributors of tobacco and cigarettes to give away an unstamped package or packages of cigarettes under such rules and regulations as you may prescribe. E-45 INDEX TO OPINIONS OF BROADUS B. ZELLARS, ASSISTANT ATTORNEY GENERAL Page ELECTIONS (Code Title 34) Qualifications of voters ___________ ------------------------------------- E-3 INDUSTRIAL RELATIONS (Code Title 54) Unemployment compensation; State-Federal cooperation_____________ E-3 INTOXICATING LIQUORS (Code Title 58) Malt beverage excise tax; whether collectible on sales on government reservations___________________________________________________________ E-4 Seizure of contraband liquor in dry counties___________________________ EState Revenue Commissioner may grant or refuse liquor license________ E-7 PUBLIC REVENUE (Code Title 92) Ad valorem taxation against realty belonging to life tenant____________ E-7 Excise taxes on motor fuels collectible from schools and colleges________ E-8 Excise taxes on motor fuels not collectible on fuels not sold in the State_ E-9 Excise taxes on motor fuels not subject to shrinkage allowance, when__ E-ll Homestead exemption can be claimed on homestead lying in two or more counties_________________________________________________________ E-12 Homestead exemption claim may be filed by Executor, when__________ E-13 Homestead exemption disallowed on land not adjoining residence_____ E-13 Homestead exemption application must be filed by Aprillst___________ E-14 Homestead exemption cannot be allowed by County Commissioners or other county officers to owners who fail to claim by April 1st_______ E-14 Homestead personalty is not subject to tax for future bond issues._____ E-15 Homestead exemption cannot be allowed to joint owners unless all re- side on the homestead property_______________________________________ E-16 Income taxes; husband divorced from wife cannot claim widower's exemption_____________________________________________________________ E-16 Income taxes; exemption for dependent who is physically incapacitated E-17 Income taxes; deductions for federal income taxes paid_______________ E-17 Income taxes; deductions for losses____________________________________ E-18 License taxes on corporations collectible from dormant corporation____ E-19 License taxes on corporations collectible from holding company, when_ E-20 License taxes on motor vehicles collectible from trackless trolleys___ -___ E-21 License taxes on motor vehicles-definition of motor vehicles__________ E-23 License taxes on motor vehicles collectible on Jekyll Island_______ ____ E-23 License taxes on motor vehicles subject to half rate when vehicles are under the jurisdiction of Public Service Commission_________________ E-24 License taxes on Title Insurance Companies____________________________ E-24 Occupation taxes; carbonic acid gas used in bottled drinks made in Georgia, but sold in Alabama, is taxable_____________________________ E-25 Occupation taxes; cars operated for hire (taxicabs) taxable under schedule_______________________________________________________________ E-26 Occupation taxes; chain stores; business operated in lobby of hoteL___ E-26 Occupation taxes; chain stores; mail order business _______ ~----------- E-28 Occupation taxes; chain stores; tax payable on or before December 31st E-29 Occupation taxes; financing automobiles-Building and Loan Associa- tions subject__________________________________________________________ E-29 Occupation taxes; dance hall tax is subject to veteran's certificate______ E-30 Occupation taxes; dance halls, who subject to tax_____________________ E-30 E-46 Page PUBLIC REVENUE (Code Title 92) continued Occupation taxes; packing houses, how taxed when two places of business____________________________________________________________________ E-31 Occupation taxes; packing houses, subject to tax according to population__________________________________________________________________ E-32 Occupation taxes; professional taxes payable in county of tax payer's residence______________________________________________________________ E-33 Occupation taxes; typewriter dealer or agent for salvage taxable________ E-33 Occupation taxes; royalty tax collectible only in county where office islocated______________________________________________________________ E-35 State Department of Revenue; Commissioner authorized to pay mem- bership fees in North American Tax conference______________________ E-36 State Department of Revenue; Commissioner may employ personnel to collect hunting and fishing licenses________________________________ E-37 State Department of Revenue; Refunds of malt beverage taxes_______ E-38 Tax Assessments; how made for unreturned property_________________ E-41 Tax Collectors and Receivers; no commission of local school district returns by Tax Receiver_______________________________________________ E-41 Tax Executions; limitations for assessment and levy___________________ E-42 Tax Sales; how county may re-sell property bought for taxes__________ E-43 Use Tax; cigar and cigarette stamps must be affixed when given away___ E-44 PART VII LIST OF APPELLATE COURT CASES F-3 LIST OF STATE APPELLATE COURT CASES DECIDED IN 1939-41 IN WHICH THE STATE LAW DEPARTMENT OF THE STATE OF GEORGIA APPEARED AS COUNSEL Adams v. State _________________________________________ 188 Ga. 668, 4 S. E. 2d 663 Adkins v. State _________________________________________ 187 Ga. 519, 1 S. E. 2d 420 Anderson v. State ______________________________________ 190 Ga. 455, 9 S. E. 2d 642 Aycock v. State_________________________________________ 188 Ga. 550, 4 S. E. 2d 221 Barker v. State __________________________________________ 188 Ga. 332, 4 S. E. 2d 31 Barkley v. State ________________________________________ 190 Ga. 641, 10 S. E. 2d 32 Barwick v. Roberts, Commissioner of Agriculture ____ 187 Ga. 691, 1 S. E. 2d 713 Barwick v. Roberts, Commissioner of Agriculture_____ 188 Ga. 655, 4 S. E. 2d 664 Board of Education and Orphanage for Bibb County v. State Board of Education ______________________ 190 Ga. 581, 10 S. E. 2d 365 Bowen v. State __________________________________________ 188 Ga. 28, 2 S. E. 2d 637 Bramley v. State _______________________________________ 187 Ga. 826, 2 S. E. 2d 647 Brannon v. State ________________________________________ 188 Ga. 15, 2 S. E. 2d 654 Brannon v. State _______________________________________ 190 Ga. 203, 9 S. E. 2d 152 Brooks County v. ElwelL ______________________________ 63 App. 308, 11 S. E. 2d 82 Brown v. State _________________________________________ 190 Ga. 169, 8 S. E. 2d 652 Bruno v. State___________________________________________ 189 Ga. 74, 5 S. E. 2d 376 Burns v. State___________________________________________ 188 Ga. 22, 2 S. E. 2d 627 Cannady v. State _______________________________________ 190 Ga. 227, 9 S. E. 2d 241 Carter v. Moyd et. al. ----------------------------------188 Ga. 753, 4 S. E. 2d 837 Carter v. State _________________________________________ 190 Ga. 534, 9 S. E. 2d 747 Castlin v. State__________________________________________ 187 Ga. 454, 1 S. E. 2d 30 Castlin v. State__________________________________________ 187 Ga. 457, 1 S. E. 2d 31 Claybourn v. State _____________________________________ 190 Ga. 861, 11 S. E. 2d 23 Clifton v. State _________________________________________ 187 Ga. 502, 2 S. E. 2d 102 Cooper Co. of Gainesville v. State _____________________ 187 Ga. 497, 1 S. E. 2d 436 Crump v. State Highway Department et. al. ______________________ 12 S. E. 2d 310 Daniel v. State___________________________________________ 187 Ga. 411, 1 S. E. 2d 6 Davis v. State __________________________________________ 190 Ga. 100, 8 S. E. 2d 394 Dobbs, et. al. v. Federal Deposit Ins. Corp. et. al. ____ 187 Ga. 569, 1 S. E. 2d 672 Dobbs, et. al. v. Federal Deposit Ins. Corp. et. al. ___ 61 App. 502, 6 S. E. 2d 375 DuBose et. al. v. Gormley, Supt. of Banks ___________ 189 Ga. 321, 5 S. E. 2d 909 Elliott v. State ________________________________________ 190 Ga. 803, 10 S. E. 2d 843 Fields v. State __________________________________________ 190 Ga. 642, 10 S. E. 2d 33 Fluker v. State __________________________________________ 187 Ga. 418, 1 S. E. 2d 29 Fowler v. State __________________________________________ 187 Ga. 406, 1 S. E. 2d 18 Freeman v. State _______________________________________ 190 Ga. 335, 9 S. E. 2d 236 Fudge v. State __________________________________________ 190 Ga. 340, 9 S. E. 2d 259 Gibbs v. State __________________________________________ 190 Ga. 207, 9 S. E. 2d 248 Glenn et. al. v. State Revenue Commission _______________________ 12 S. E. 2d 107 Goodman v. Fayette County___________________________ 61 App. 741, 7 S. E. 2d 327 Gormley, Superintendent of Banks v. Eison et. al. ____ 189 Ga. 259, 5 S. E. 2d 643 Green & Milam v. State Revenue Commission _________ 188 Ga. 442, 4 S. E. 2d 144 Gullatt et. al., Tax Assessors v. Slaton et. al. _________ 189 Ga. 758, 8 S. E. 2d 47 Harris v. State _________________________________________ 188 Ga. 745, 4 S. E. 2d 651 Harris v. State _________________________________________ 190 Ga. 258, 9 S. E. 2d 183 Harris v. State ________________________________________ 190 Ga. 773, 10 S. E. 2d 752 F-4 Harris v. State_______________________________________________________ 12 S. E. 2d 64 Harrison, Ins. Com'r. v. Tanner-Poindexter Co., Inc. _187 Ga. 678, 1 S. E. 2d 646 Head et. al. v. Yeomans, State Entomologist__________ 189 Ga. 335, 6 S. E. 2d 704 Head, Commissioner v. McKenney_____________________ 61 App. 552, 6 S. E. 2d 405 Head, Revenue Commissioner v. Edgar Bros. Co. ______ 187 Ga. 409, 200 S. E. 792 Head, Revenue Commissioner v. MaxwelL _____________ 60 App. 488, 4 S. E. 2d 45 Head, Revenue Commissioner v. Cigarette Sales Co. __ 188 Ga. 452, 4 S. E. 2d 203 Head, Revenue Commissioner v. Rich ________________ 190 Ga. 680, 10 S. E. 2d 183 Head, Revenue Commissioner v. Trustees Jesse Parker Williams Hospital et. al. ____________________ 190 Ga. 360, 9 S. E. 2d 171 Head, State Revenue Commissioner v. Edgar Bros. Co. _60 App. 482, 4 S. E. 2d 71 Head, State Revenue Commissioner v. Rich____________ 61 App. 293, 6 S. E. 2d 73 Hoch v. Candler County Commissioners et. al. ________ 190 Ga. 390, 9 S. E. 2d 622 Holcombe et. al. v. Georgia Milk Producers Association _________________________________________ 188 Ga. 358, 3 S. E. 2d 705 Hopkins v. State________________________________________ 190 Ga. 180, 8 S. E. 2d 633 Hunter v. State_________________________________________ 188 Ga. 215, 3 S. E. 2d 729 Jasper School District v. Pickens County Bank et. al. ---------------------------------------------187 Ga. 433, 200 S. E. 2d 779 Jenkins v. State_________________________________________ 190 Ga. 556, 9 S. E. 2d 909 Johnson v. State __ . ____________________________________ 188 Ga. 771, 4 S. E. 2d 639 Johnson v. State _______________________________________ 188 Ga. 662, 4 S. E. 2d 813 Jones v. Richmond County ____________________________ 61 App. 857, 7 S. E. 2d 754 Kell v. State ____________________________________________ 188 Ga. 670, 4 S. E. 2d 596 Kendrick v. State Highway Board______________________ 62 App. 570, 8 S. E. 2d 793 Kennedy v. State___________________________________________________ ll S. E. 2d 179 Laminack v. State_______________________________________ 187 Ga. 648, 2 S. E. 2d 99 Lanier v. State__________________________________________ 187 Ga. 534, 1 S. E. 2d 405 Latimer v. State________________________________________ 188 Ga. 775, 4 S. E. 2d 631 Leary v. State ___________________________________________ 187 Ga. 445, 200 S. E. 779 Lowe v. City of Atlanta et. al. -------------------------------------11 S. E. 2d 891 Lowe v. Head, State Revenue Commissioner et. al. _______________ ll S. E. 2d 891 MacDougald Construction Co. v. State Highway Dept. 59 App. 708, 2 S. E. 2d 197 McKibben v. State _____________________________________ 187 Ga. 651, 2 S. E. 2d 101 Massey v. State ____________________________________________________ ll S. E. 2d 186 Merritt v. State _________________________________________ 190 Ga. 81, 8 S. E. 2d 386 Mills v. State ___________________________________________ 188 Ga. 616, 4 S. E. 2d 453 Mimbs v. State________________________________________ .189 Ga. 189, 5 S. E. 2d 770 Mims v. State: __________________________________________ 188 Ga. 702, 4 s. E. 2d 831 Mitchell v. State________________________________________ 190 Ga. 571, 9 S. E. 2d 892 Morton v. State _______________________________________ 190 Ga. 792, 10 S. E. 2d 836 Mosley v. State ___________________________________________ 189 Ga. 71, 5 S. E. 2d 47 Nelson v. State _________________________________________ 187 Ga. 576, 1 S. E. 2d 641 Nesbit v. Gormley, Superintendent of Banks__________ 189 Ga. 275, 5 S. E. 2d 747 Overman v. State________________________________________ 187 Ga. 396, 1 S. E. 2d 20 Phillips v. State ________________________________________ 190 Ga. 226, 9 S. E. 2d 274 Pickens County Bank et. al. v. Jasper School District_ __ 187 Ga. 433, 200 S. E. 780 Purser v. Dodge County ________________________________ 188 Ga. 250, 3 S. E. 2d 574 Richardson v. State ____________________________________ 189 Ga. 448, 5 S. E. 2d 891 Roberson v. State _____________________________________ 190 Ga. 661, 10 S. E. 2d 173 Roberson v. State _____________________________________ 190 Ga. 664, 10 S. E. 2d 403 Roberts v. State _________________________________________ 189 Ga. 36, 5 S. E. 2d 340 F-5 Roberts, Commissioner of Agriculture v. Barwick et. al. _____________________________________ 187 Ga. 691, 1 S. E. 2d 713 Seay v. State ___________________________________________ 63 App. 286, 11 S. E. 2d 54 Screws v. State_________________________________________ 188 Ga. 678, 4 S. E. 2d 601 Sheffield v. State_________________________________________ 188 Ga: 1, 2 S. E. 2d 657 Smith v. State __________________________________________ 189 Ga. 169, 5 S. E. 2d 762 Southern Railway Co. v. State _________________________ 188 Ga. 569, 4 S. E. 2d 233 Southwell v. State_______________________________________ 188 Ga. 310, 4 S. E. 2d 26 State v. Camp et. al. ___________________________________ 189 Ga. 209, 6 S. E. 2d 299 State ex. rel. Boykin, Solicitor General v. Ball Inv. Company et. aL _____________________________________ 12 S. E. 2d 574 State Board of Education et. al. v. County Board of Education for Richmond Co. ___ 190 Ga. 588, 10 S. E. 2d 369 State Board of Education et. al. v. Board of Public Education for Savannah and Chatham County __ 190 Ga. 597, 10 S. E. 2d 374 State Board of Penal Corrections v. Johnson, SherifL_190 Ga. 246, 9 S. E. 2d 251 State Highway Board of Georgia v. City of Baxley_____ 190 Ga. 292, 9 S. E. 2d 266 State Highway Department v. MacDougald Const. Co..189 Ga. 490, 6 S. E. 2d 570 State Revenue Commission v. Glenn___________________ 61 App. 567, 6 S. E. 2d 384 State Revenue Commission v. Carson Naval Stores___ 63 App. 540, 11 S. E. 2d 678 Sunshine Health Center v. State Department of Public Welfare _________________ 187 Ga. 486, 1 S. E. 2d 8 Thomas v. State________________________________________ 188 Ga. 649, 4 S. E. 2d 635 Thompson v. State _________________________________________________ 11 S. E. 2d 795 Thornton v. State _____________________________________ 190 Ga. 783, 10 S. E. 2d 746 Turner v. State_________________________________________ 190 Ga. 316, 9 S. E. 2d 270 Walton v. State________________________________________ 190 Ga. 746, 10 S. E. 2d 755 Warren v. Suttles, Tax Collector_ ______________________ 190 Ga. 311, 9 S. E. 2d 172 Weaver v. State_________________________________________ 189 Ga. 339, 5 S. E. 2d 872 Welch v. State __________________________________________ 190 Ga. 161, 8 S. E. 2d 645 Wheat v. State____________________________________________ 187 Ga. 480, 1 S. E. 2d 1 Whitley v. State ________________________________________ l88 Ga. 177, 3 S. E. 2d 588 Wicker et. al. v. Fidelity & Guaranty Co. of N. Y. ____ 59 App. 521, 1 S. E. 2d 464 Wilson v. State ________________________________________ 190 Ga. 824, 10 S. E. 2d 861 Williams v. State_________________________________________ 187 Ga. 415, 1 S. E. 2d 27 Williamson v. Wilson, Secretary of State_______________ 189 Ga. 652, 7 S. E. 2d 241 LIST OF CASES IN THE SUPREME COURT OF THE UNITED STATES Connor (K. L. ) v. E. D. Rivers, Governor, State of Georgia __________ 305 U. S. 76, 59 S. Ct. 359, 83 L. ed. 363 Dixie-Ohio Express v. State Revenue Commission __________________________ 306U. S. 72, 59S. Ct. 435, 83L. ed. 495 Edgar Bros. Co. v. T. Grady Head, Revenue Commissioner______________ 309 U. S. 672, 60S. Ct. 617, 84 L. ed. 989 State of Georgia v. Tennessee Copper Co.. 305 U.S. 565, 59 S. Ct. 98, 83 L. ed. 356 LIST OF CASES IN THE CIRCUIT COURT OF APPEALS OF THE UNITED STATES Rivers, Governor of Georgia et. al. v. Miller _____________________ .112 Fed. 2d 439 F-6 LIST OF CASES BEFORE THE INTERSTATE COMMERCE COMMISSION Dixie Freight Lines, Inc. v. R. E. Lewis _________________________________ MC-6554 Southern Railway Company, Abandonment, etc. _______________________ FD-12616 Wrightsville & Tennille R. R. Co., Abandonment, etc. _________________FD-12617 LIST OF CASES IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS Ex. parte Richard G. Gallogly____________________________ 138 Tex. Crim. Rep. 115 Ex. parte Richard G. Gallogly _____ -------------- ________ 138 Tex. Crim. Rep. 585