Opinions of the Attorney General of Georgia

OPINIONS
of
THE ATTORNEY GENERAL OF GEORGIA
ELLIS G. ARNALL Attorney General
MARSHALL L. ALLISON, Compiler
Printed by
BOWEN PRESS DECATUR, GA.

ATTORNEYS GENERAL
Henry P. Farrer ........ : ............... 1868-1872
N. J. Hammond ..................... : .. 1872-1877
Robert N. Ely .......................... 1877-1880 Oifford L. Anderson . . . . . . . . . . . . . . . . . . . . 1880-1890 George N. Lester ....................... 1890-1891 W. A. Little ............................ 1891-1892 J. M. Terrell ........................... 1892-1902 Boykin Wright ......................... 1902-1902 John C. Hart ........................... 1902-1910 Hewlett A. Hall ........................ 1910-1911 Thomas S. Felder ....................... 1911-1914 Warren Grice .......................... 1914-1915 Clifford Walker ........................ 1915-1920 R. A. Denny ........................... 1920-1921 George M. Napier ...................... 1921-1932 Lawrence S. Camp ...................... 1932-1932
M. J. Yeomans ......................... 1933-1939
Ellis G. Arnall .......................... 1939-1943

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AGRICULTURE; COMMISSIONER OF-Duty to enforce
provisions of Code Section 42-508, relating to sanitary condi-
tions for handling milk, etc.
July 28, 1941.
Honorable C. G. Duncan, Director,
State Milk Control Board.
This will acknowledge receipt of your letter of July 22nd, in which you state that a question has arisen as to whether it is the duty of the Commissioner of Agriculture or of the State Milk Control Board to enforce the provisions of Section 42-508 of the Georgia Code of 1933. You request an opinion from me on this question and ask that I send a copy of the opinion to the Commissioner of Agriculture.
Section 42-508 of the Georgia Code of 1933 as amended by an Act approved February 1st, 1935, (Ga. Laws 1935, p. 167), provides as follows:
"It shall be unlawful: (1) To handle milk, cream, butter, ice cream or other dairy products in unclean or unsanitary places, or in an unsanitary manner, or to keep, store or prepare for market any milk, cream or other dairy products in the same building or enclosure with any hide or fur house, or any cow, horse, or hog barn or shed, or other places where live stock is kept. Cream-or milk-receiving and buying stations must have outside doors or adjustable outside windows; and if cream stations shall have connecting doors with any other part of the building in which said station may be located, there shall be installed at the connecting door a vestibule having solid doors provided with strong springs to keep them closed, and such vestibule shall meet the approval of the Commissioner of Agriculture. The cream room shall be used exclusively for the handling of dairy products. It shall have a concrete floor, with proper drainage and sewerage for the disposition of all waste water. It shall be equipped with running water, steam, and other equipment necessary for the thorough washing and sterilization of all cans, pails, separator parts, and anything that may come in direct contact with the milk or cream. The Commissioner of Agriculture and his deputies shall have the power, and they are hereby authorized, to forbid the handling of cream, milk, butter, ice cream or other dairy products in any place which in their

judgment is unsanitary and will affect the purity of the milk, cream, butter, ice cream, or other dairy products handled therein, or that will in any way injure the flavor or market value thereof. (2) To handle or ship milk, cream, or ice cream, or other dairy products., in unclean or unsanitary vessels, or to expose milk, cream, ice cream, or other dairy products to flies or other contaminating influence likely to convey pathogenic or other injurious bacteria to such milk, cream, ice cream or other dairy products. (3) for any common carrier to neglect or fail to remove or ship from its depot, on the day of its arrival there for shipment, any milk, cream, or other dairy products left at such depot for transportation. Railway and express companies must not allow 111erchandis.e of a contaminating nature to be stored on or with dairy products. (4) For railway and express companies to allow milk or cream cans or ice cream cans or ice .cream packers to remain at a railroad depot longer than one day from the date of their arrival. (5) To use any branded or registered cream can or milk can or ice cream packer or container for any purpose other than the handling, storing, or shipping of milk, cream, or ice cream. No person other than the rightful owner thereof shall use any can, bottle, or other receptacle if such receptacle shall be marked with the brand or trade-mark of the owner. (6) For any person, firm, or corporation, purchasing ice cream in cans, shipping bags or tubs which are to be returned to the manufacturer not to cause such cans to be washed and cleaned as soon as emptied and with the bags and tubs stored in a dry place. (7) To sell or offer for sale milk, cream, butter, cheese, ice cream, or other dairy products that are not pure and fresh and handled with clean utensils.. (8) To sell or offer for sale milk or. cream from diseased or unhealthy animals or handled by any person suffering from or coming in contact with persons afflicted with any contagious disease. (9) To sell or offer for sale any milk or cream which shall have been exposed to contamination or into which shall have fallen any unsanitary articles or any foreign substance which would render the milk or cream or the product manufactured therefrom unfit for human consumption. (10) To sell or expose for sale milk, cream, butter, cheese, ice cream, or other dairy products containing any preservatives of any kind whatsoever, except common salt or sugar, or that shall not comply with the standards promulgated by the Commissioner of Agriculture."
Section 42-9913 of the Code as amended provides:
"Any person, firm or corporation, and any officer, agent, representative, servant or employee of such person, firm or

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corporation who shall violate any of the provisions of Chapter. 42-5, regulating dairies and dairy products, shall be guilty of a misdemeanor, and his or their permit or license shall be subject to suspension or cancellation by the Commissioner of Agriculture. Upon conviction the offender shall be punished by a fine of not less than $25.00 nor more than $500.00 for each offense."
You will notice that Sections 42.:.508 and 429913 specifically impose certain duties relating to the enforcement of those provisions upon the Commissioner of Agriculture and his deputies. The foregoing sections are clearly sanitary laws regulating the sanitary production and distribution of milk or milk products.
The Act creating the Milk Control Board was an Act approved March 30th, 1937, (Ga. Laws 1937, pp. 247-264). That Act does not specifically repeal or amend Sections 42-508 and 42~9913 of the Code. There remains to be considered then the question of whether the Act creating the Milk Control Board. by implication repealed those provisions of Sections 42-508 and 42-9913 imposing the duty of enforcing those provisions. upon the Commissioner of Agriculture. While repeals by implication may be accomplished they are not favored and the legislative intent to accomplish that result must be clear.
McGinty vs. Gormley, 181 Ga. 644.
Every effort must be made to make all acts stand and the latter Act will not operate as a repeal of the earlier one if by any reasonable construCtion they can be reconciled.
Gray vs. McLendon, 134 Ga. 224, 230.
An examination of the provis.ions of the Act of 1937 creating the Milk Control Board make it clear that that Act was not intended to conflict with or repeal any provisions of existing laws regulating the sanitary production and distribution of milk. Section 18 (A) of the Act of 1937 provides:
"The license required by this Act shall be in addition to any and/or 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.

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"The provisions of this Act are solely intended to. facili-

tate the orderly marketing of milk * * *"



It will also be observed that Section 5 of the Act after pro-

viding for the holding of an election to determine whether or not

the provisions of the Act shall be made applicable to the milk

shed in which the election is held provides:

"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."

It is not reasonable to attribute to the General Assembly an intention of imposing upon the Milk Control Board the duty of enforcing sanitary regulation only within the milk sheds to which the 1937 Act is. applicable when the Act creating and providing for such sanitary regulations operates throughout the entire State and designates the State officer upon whom the duty of enforcing it is imposed.

I there be any further doubt about this question it need only be pointed out that the General Assembly in the Act of 1937 creating the Milk Control Board did not intend to deal with the entire subject matter of licensing and regulating the production and distribution of milk and milk products, since by an Act approved March 31, 1937, (the day after the approved of the Act creating the Milk Control Board), the General Assembly passed an Act imposing certain duties with reference to the licensing of dealers in milk and milk products upon the State Veterinarian, (Acts of 1937, pp. 725, 727).

I have not overlooked that portion of Section 6 of the Act
creating the State Milk Control Board which provides:
"The Board, with the assistance of the Director or ~ts duly authorized agents, shall enforce the provisions of this Act and the Director, or any duly authorized agent of the Board, is hereby empowered with authority, subject to the provisions of this Act and the approval of the Board, to supervise and regulate the production, transportation, manu-
facture, storage, distribution, delivery, or sale of milk * * *"
The powers vested in the Board with the assistance of the
Director or its duly authorized agents by Section 6 are for the

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purposes of enforcing the provisions of the Act creating the Milk Control Board, but even if the broad general provisions of Section 6 could be said to conflict with the provisions of Sections 42-508 and 42-9913 of the Code imposing the duty of enforcing thos.e Sections upon the Commissioner of Agriculture, the latter statute being general in its terms and without negative words would not be construed to repeal by implication the particular provisions of the former statute which are special in their application to a particular case or class of cases.
Davis vs. Dougherty Co., 116 Ga. 491.
Nor have I overlooked that portion of Section 13 (H) of the 1937 Act which provides that after hearing.and it appearing:
"That the applicant or licensee has not complied with the health and sanitary requirements of any incorporated town or city in which he is selling milk or has not complied with any other health laws of the State of Georgia which may be applicable to him." the board has the authority to decline to grant or renew a license or may suspend or revoke a license already granted. While that provisions may be an additional means of compelling a person in a milk shed area to which the 1937 Act is applicable to comply with the provisions of Section 42-508 of the Act it would not relieve the Commissioner of Agriculture from performing the duties vested in him by the provisions of that Code Section.
It is my opinion, therefore, that the Act of 1937 creating the State Milk Control Board does not repeal or supersede those provisions of Sections 42-508 and 42-9913 of the Code imposing the duty of enforcing the provisions of those Code Sections upon the Commissioner of Agriculture.
AGRICULTURE; COMMISSIONER OF-Milk Powder Law.
March 7, 1941. Hon. Tom Linder, Commissioner of Agriculture.
I am pleased to acknowledge your request for an opinion as to whether the Commissioner of Agriculture has the right to enforce the Milk Powder Law against those who use powdered

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milk in making bread, cakes, etc., and whether it is an offense to advertise bread as "milk bread" when in truth and in fact powdered milk is used in its manufacture; and whether the sale of such bread so labelled would constitute misbranding under the law of this State:
For the purposes. of this opinion I think that all of the. questions can be dealt with together as they are inter-related. I might say, however, that the Milk Powder Law as codified in Chapter 42-6 of the Code does not embrace anyone ~except "manufacturers, dealers in, or distributors of milk made out of milk powder," and I am of the opinion that the sale of bread or cakes made with milk powder as one of their ingredients would not be a violation of said statute, unless the bread or cakes so s.old or offered for sale were misbranded or were manufactured or sold in violation of the Pure Food and Drug Act of this State. The Powdered Milk Law prohibits the manufacture, dealing in or distributing of "milk made out of milk powder" except under certain conditions, but does not prohibit or purport to prohibit the manufacture, dealing in or distribution of products such as bread or cakes other than "milk" made out of milk powder.
With reference to whether bread manufactured by or with the use of powdered milk and advertised and sold as "milk bread" constitutes a misbranding under the provisions of Section 42-110 of the Pure Food and Drug Laws of this State, I am of the opinion. that it does. This opinion is based upon the decision of the United States Supreme Court in the case of,
United States of America ~~s. Ninety-five Barrels (more
or less) Alleged Apple Cider Vinegar, Dottglas Packing Company, Claimant. 265 U. S. 438, 68 Law Edition 1094.
Said decision involved the construction of the Act of Congress known as the Food and Drug Act of June 30th, 1906 (Chapter 3915, 34 Stat. at L 768, Comp. Stat. Sections 8717, 3 Fed. Stat._ Anno. 2d ed. p. 358), and is directly analogous to the question tinder discussion for the reason that the Food and Drug Act ot this State approved August 21st, 1906 (Ga. Laws 1906, pp. 83, 95), which became effective Augus.t 1st, 1907, and is almost an

9
exact duplicate or replica of the Federal statute above cited, especially as relates to the definitions contained in said respective statutes of the term "misbranded" as applied to foods. It is also analogous for the further reason that the Supreme Court in said case was dealing with a product made from apples, which had been evaporated and we are dealing in this opinion with a product made from milk which has been evaporated.
The facts in said case were briefly this : That the Douglas Packing Company manufactured apple cider and vinegar; that during a part of the year they manufactured apple cider and vinegar from fresh or unevaporated apples, and during a part of the year they manufactured apple cider and apple cider vinegar from evaporated apples. The vinegar manufactured by said company from evaporated apples was labelled,
"Douglas Packing Company Excelsior Brand Apple Cider Vinegar
made from Selected Apples Reduced to 4 Percentum Rochester, N. Y."
The proceeding was brought to forfeit ninety-five barrels of said vinegar as thus manufactured and labelled on the ground, among other things, that it was misbranded. In the course of the opinion delivered by Mr. Justice Butler and after quoting the provisions of Section 6 and Section 8 of the Federal Act with reference to the definition of the terms "food" and "misbranded" it was said:
"The statute is plain and direct. Its comprehensive terms condemn every statement, design, and device which may mislead or deceive. Deception may result from the use of statements not technically false, or which may be literally true. The aim of the statute is to prevent that resulting from indirection and ambiguity, as well as from statements which are false. It is not difficult to choose statements, designs, and devices which will not deceive. Those which are ambiguous and liable to mislead should be read favorably to the accomplishment of the purpose of the Act. The statute applies to food and the ingredients and substances contained therein. It was enacted to enable purchasers to buy food for what it really is"'(citing several cases);

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In commenting upon the facts in the case Justice Butler ha
this to say:
"The vinegar made from dried apples was not the san as that which would have been produced from the appl<
without dehydration. * * * The substance removed was
part of their juice, from which cider and vinegar would ha' been made if the apples had been used in their natural stat
That element was not replaced. * * * While the vinegar i
question, made from dried apples, was like or similar to th: which would have been produced by the use of fresh apple it was not the identical product. The added water constitutin an element amounting to more than one-half of the total of a ingredients of the vinegar, never was a constituent element ( part of the apples. The use of dried apples necessarily n suits in a different product.
"If an article is not the identical thing that the bran
indicates it to be, it is misbranded. * * * The vinegar in que:
tion was not the same as if made from apples without d< hydration. The name, 'apple cider vinegar,' included in tl brand, did not represent the article to be what it really wa! and, in effect, did represent it to be what it was not,-vineg: made from fresh or unevaporated apples. The words, 'rna< from selected apples,' indicates that the apples used we1 chosen with special regard to their fitness for the purpose ( making apple cider vinegar. They give no hint that tl vinegar was made from dried apples, or that the larger pa of the moisture content of the apples was eliminated an water substituted therefor. As used on the label, they aid tl misrepresentation made by the words, 'apple cider vinegar.'
The court concluded its opinion by holding that "the lab was misleading as to the vinegar, its substance and ingredient The facts admitted sustained the charge of misbranding" and tl court reversed the judgment of the United States Circuit Cou of Appeals for the Sixth District reversing a judgment of tl
District Court for the Northern District of Ohio, Eastern D
vision, in favor of the United States of America.
A comparison of Sections 3 and 5 of the Pure Food and Dn1
Act of this State with the provisions of Sections 6 and 8 of tl
Federal statute, quoted in the opinion of the Supreme Cour reveals that the language of the two statutes is identical. Ot
statute, as well as the Federal statute says that in the case of foo
an article shall be deemed to be misbranded "if the package co1

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taining it or its label shall bear any statement, design, or device regarding the ingredients of the substances contained therein, which statement, design, or device, shall be false or misleading in any particular." So although the product dealt with in the Federal case is not identical with the product dealt with in this opinion, nevertheless the facts with reference to the manufacture of said respective products (vinegar and bread) are so similar and analogous that it may be safely said that the decision of the Supreme Court in the above cited case is controlling of the question.
Certainly when a manufacturer of bread or cakes., made by the use of powdered milk as an ingredient, brands or labels such bread or cakes as "milk bread" or "milk cakes" the public is thereby led to believe that such products were manufactured by the use of milk in the form that said word usually conveys to the average mind. That is to say, the ordinary signification of the word "milk" is that it is the liquid substance extracted from the mammary gland of female animals; and is generally used with reference to such substance obtained from the cow "without adulteration or change in its condition," Fuqua v. Birmingham 17 Ala., 142, 82 S. 626.
The word "milk" does not ordinarily convey to the mind or mean a "powdered substance, or any other substance not in liquid form, or a substance from which there has been removed or added any ingredient." Therefore, when bread is labelled "milk bread" the public has a right to expect or believe that said bread was. made with milk of a kind which the word implies, and not from "powdered milk" or "milk powder" or milk which has been dehydrated, adulterated or diluted.
Accordingly I am of the opinion that bread or cakes manufactured as aforesaid, the labels of which bear the term "milk bread" or "milk cakes" are misbranded within the purview and prohibition of our statutes. Sections 42-114 and 42-9901 provide the procedure and remedies which may be pursued against persons misbranding any food as defined in the Pure Food and Drug Laws..
I trust that you will excuse the delay in answering your

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inquiry, which was occasioned by the fact that this office has been literally swamped with work in drawing bills and resolutions for the General Assembly and in trying to carry on the other duties and functions of the Department.
AGRICULTURE; COMMISSIONER OF; DIRECTOR OF MARKETS-Power to establish grades and classes. of fruit and vegetables.
April 15, 1941.
Hon. Max L. McRae, Director, Bureau of Markets, Department of Agriculture.
I am pleased to acknowledge yours of the 11th instant requesting advice as to whether the Commissioner of Agriculture has the power under existing laws to set up a system of grades. and quality covering fruits and vegetables moving out of Georgia by trucks, or moving into the State by trucks.
Our statutes deal with the subject of formulating and regulating standards, grades and classes of agricultural products in two different instances. In 1917 the General Assembly enacted a statute (Ga. Laws 1917, p. 77), which is now codified as Sections 5-201 to 5-207 of the Code of Georgia of 1933 creating a Bureau of Markets and providing for the appointment by the Commissioner of Agriculture of a Director of Markets. In prescribing the powers and duties of the Bureau of Markets, Section 5-205 provides:
"The Director shall likewise formulate and announce proper and fair standards, grades and class.es, for and among agricultural products of all kinds, and may modify or supplement the same from time to time, and shall recommend the same cooperative and other like associations of producers, distributors and vendors thereof as the standards, grades., or classes to be adopted in marketing the same." It will be observed that this statute merely provides for the formulation of such standards, grades and classes. and their recommendation to producers, distributors and vendors. No penalty is provided in the statute for the failure of any producer, distributor or vendor of agricultural products to observe the standads, grades

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or classes promulgated by the Director in selling or offering for ' sale agicultural products. In other words, after the Director has
promulgated and recommended such standards, grades or classes of agricultural products to producers, distributors and vendors his authority has been exhausted, and he has no power to enforce compliance with such standards, grades and classes.
In the Act of 1935 (Ga. Laws 1935, p. 369),authorizing the Commissioner of Agriculture to establish farmer's markets in this State, which Act is now codified as Sections 5-208 to 5-223 of the Georgia Code Annotated the General Assembly in Section 7 of said Act vested the Commissioner of Agriculture with the au-: thority,
"not only to establish and promulgate necessary grades and -classes of vegetables, fruits and truck crops, but to enforce them in all of the markets of the State. established under the provisions of this Act, not to exceed 8 in number,"
and the Commissioner of Agriculture was given,
"power to designate places on any market where fruits, vegetables and truck crops of the different classes and crops shall be handled and kept separate." (Italics supplied.)
Thus we find that in this Act the Commissioner of Agriculture can prescribe grades and classes of vegetables, fruits and truck crops and enforce a compliance with such standards, grades and classes, so established. However, the power of the Commissioner of Agriculture to enforce such grades and classes is limited to their enforcement in the "markets of the State, established under the provisions of this Act," and this means that the Commissioner of Agriculture would not have the authority to enforce observance or compliance with such grades or classes by producers, distributors or vendors of vegetables, fruits and truck crops sold or offered for sale in any place in this State outside of the limts of a State farmer's market.
These two statutes seem to exhaust the subject under inquiry. It wQuld probably be in the interest of agriculture in this State if the General Assembly had vested broader powers in the Commissioner of Agriculture with respect to establishing grades and classes of vegetables, fruits and truck crops and had given the Commissioner power to enforce compliance with such grades,

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classes and standards anywhere in the State where such fruits, vegetables or truck crops were sold or offered for sale. It does not seem, however, that the General Assembly has yet gone so far, and until the powers of the Commissioner of Agriculture with respect to the things mentioned are broadened by legislation, he is now limited in his power to enforce standards, grades and classes to the State farmer's markets which are under his jurisdiction, control and supervision.
BANKS AND BANKING-Legal holidays, effect of.
October 6, 1942.
Hon. J. C. Beasley,
Superintendent of Banks, State Department of Banking.
This will acknowledge yours of the 1st instant pointing out that .the Federal Reserve Bank does not recognize certain legal holidays in Georgia, although the same are made holidays by the statute. You request my opinion as to whether, if the banks of Georgia should elect to disregard all the proposed legal holidays other than those observed by the Federal Reserve Bank, business transacted on those days would be legal; and, if not, would it be necessary to repeal the statute before the banks could refuse to observe those days as legal holidays for the duration.
Code Section 14-1808 enumerates the business holidays which are observed in Georgia, and concludes with this declaration:
"and any other day declared by the law to be a public holiday, shall be treated and considered for all purposes of this Title as the firs.t day of the week, commonly called Sunday, and as public holidays." This Code Section should be construed in connection with Section 14-105 which reads:
"Where the day, or the last day, for doing any act in this Title required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding s.ecular or business day."
and in connection with Code Section 14-716 which provides:
"Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon

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Sunday or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due or becoming payable on Saturday are to be presented for payment on the next succeeding business day, except that instrument payable on demand may, at the option of the holder, be presented for payment before 12 o'clock noon on Saturday when that entire day is not a holiday."
It should also be considered in the light of what was said by the Court of Appeals in the case of Freeman vs. Beneficial Loan
Society of Macon, 42 Ga. App. 294, to wit:
"While November 11th of each year, commonly called Armistice Day, is, by the act approved August 19th, 1929, declared a public and legal holiday, it is not by law declared to be dies non juridicus, and there is nothing to invalidate the exercise of judicial functions on that date. Consequently, in computing the thirty days within which a petition for certiorari must be presented, the 11th of November, although a legal holiday and the last day, must be included."
When so construed, I think that the language of Code Section 14-1808 merely means that the public holidays enumerated in said Section are not dies non juridicus and business may be legally transacted on these days by banks. or other business houses or individuals. Where any negotiable instrument falls due on a holiday, the force and effect of the statute is to allow the debtor until the next succeeding business day upon which to pay the same, before it may be considered in default.
In Georgia the only day which falls under the category of dies non juridicus is the Sabbath day. Neither Code Section 14-1808, nor any other statute of which I am aware makes any transaction or contract entered into upon a business holiday illegal, void or voidable.
BANKS AND BANKING-Period of charter of merged banks. March 20, 1942.
Hon. John B. Wilson, Secretary of State.
This will acknowledge yours of the lOth instant requesting my construction of Code Section 13-1403, Paragraph 5, dealing with the consolidation or 'merger of banks, with reference to the

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particular question as to whether the charter of the merged or consolidated banks should read for a period of thirty years from the date of the certificate of the Secretary of State authorizing the merger or consolidation, where the original charters of the merged banks are of different dates.
Your letter quotes the pertinent provisions of the Act, and the same will not be repeated here. Chapter 13-14 of the Code deals fully with the procedure to be followed in the merger or consolidation of banks, and throughout this Chapter the terms "merger" and "consolidation" are used interchangeably. That is to say, these terms seem to be used in the Act as synonymous, and no distinction is made between the legal effects of a merger as distinguished from a consolidation. In fact, the procedure to be followed is the same whether the banks in question desire to be merged or consolidated.
After the preliminary procedure has been complied with, including the approval of the consolidation or merger by the superintendent of banks, and said superintendent has filed his certificate of approval with the Secretary of State the law provides that:
"The Secretary of State shall issue to the consolidated bank a certificate under the seal of the State, certifying that the contracting banks have been merged or consolidated under the name adopted and with the capital stock in said application set forth, which certificate shall be the charter of the consolidated or merged bank, etc." (Italics supplied).
Accordingly it will be seen that when a bank is either merged or consolidated the certificate issued by the Secretary of State becomes the charter of the bank. The effect of this certificate is obviously to create a new legal entity, and the term of its legal existence should, of course, be specified. Chapter 13-14 does not specify for what term the certificate shall operate as a charter of the consolidated or merged banks. It is necessary, therefore, to determine whether other applicable statutes make provision for such matters.
Article III, Section VII, Paragraph XVIII of the Constitution provides in part :
"All corporate powers and privileges to banking * * *
companies shall be issued and granted by the Secretary of State in such manner as shall be prescribed by law."

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Code Section 22-702 provides in part:
"Should any charter granted to a private corporation be silent as to its continuance, such charter shall expire at the end of thirty years from the date of its grant in the cases of corporations whose charters are granted by the Secretary of State, etc."
In this connection there is a note in the Annotated Code that this Section is "superseded by the Corporation Act .of 1938, Acts 1937-1938, Ex. Sess. p. 214; See Section 22-1827 (a)." But as the Act referred to does not, by its express terms, apply to banking companies, this note is obviously erroneous insofar as it applies to banking companies. See Section 22-1801, Georgia Code Annotated, Pocket Supplement.
Moreover, Section 2266 of the Code of 1910, in describing the powers of banks chartered by the Secretary of State provided in part that such corporations, when organized, had the power "to have continual succession for the term of thirty years with the right of renewal for a like term with all corporate powers and privileges herein granted."
There is nothing in the Banking Act of 1919 which is in conflict with this statute, and since the Act of 1919 contains only a general repealing clause, repealing all laws in conflict with it, I am of the opinion that the statute last quoted is still in force and effect, and consequently it is the duty of the Secretary of State, in granting a certificate where two or more banks are merged or consolidated to provide that such certificate shall remain in force and effect as the charter of said corporation for a period of thirty years from the date of said certificate.

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BOUNDARIES AND JURISDICTION OF THE STATE-
Boundary line between Georgia and Tennessee.
February 7, 1942.
Honorable DuPree Hunnicut, Jr., Secretary, Joint Committee Of House and Senate, Athens, Georgia.
In Re: Boundary Line Between Georgia and Tennessee.
This will acknowledge receipt of your letter of January 19th informing me of the request of your Committee for an opinion and recommendations as to the proper legal procedure to adopt for the purpose of establishing the true boundary line between Georgia and Tennessee.
A brief historical survey will show that the original northern boundary of the State between Georgia and Tennessee was the true line of the 35th degree parallel of north latitude.
It is pointed out in the history of the establishment of the State line between Georgia and Tennessee furnished with your letter that the original authority for the establishment of a State line between Georgia and Tennessee may be found in an Act passed by the Legislature of North Carolina on December 2, 1789, ceding to the United States. the western lands, now constituting the State of Tennessee and that the revised statutes of -North Carolina definitely fixed the boundary between North Carolina and Georgia as the 35th degree parallel.
The northern boundary of the State of Georgia was described in the Constitution of Georgia of 1798 as follows:
"The limits, boundaries, jurisdictions, and authority of the State of Georgia do, and did, and of right ought to, extend from the sea or mouth of the River Savannah, along the northern branch or stream thereof, to the fork or confluence of the rivers now called Tugalo and Keower, and from thence along the most northern branch or s.tream of the said River Tugalo, till it intersect the northern boundary line of South Carolina, if the said branch or stream of Tugalo extends so far north, reserving all the islands in the said Rivers Savannah and Tugalo to Georgia; but, if the head spring or source of any branch or stream of the said

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River Tugalo does not extend to the north boundary line of

South Carolina, then a west line to the Mississippi, to be

drawn from the head spring or source of the said branch or

* * *" stream of Tugalo River, which extends to the highest north-

ern latitude;

(Constitution of 1798, Article 1, Sec-

tion 23).

The Georgia Code of 1863, Part I, Title I, Chapter I, Sec-

tion 19, described the boundary line between Georgia and Ten-

nessee as follows:



"The boundary between Georgia and North Carolina, and Georgia and Tennessee, shall be the line described as the 35th degree parallel of north latitude, from the point of its intersection by the River Chattooga, west to the place called Nickajack."

The same provision has been brought forward in all of the Codes subsequent to that of 1863 and may be now found as Section 15-103 of the Georgia Code of 1933.

In view of the fact that the statute law of this State still describes the 35th parallel of north latitude as the boundary between Georgia and Tennessee, it becomes important to determine whether that boundary is the one which is now marked and commonly recognized as. the boundary between the two States.

The map prepared by the State Highway' Department and inclosed with your letter shows the present Georgia-Tennessee boundary line to be some distance south of the true 35th degree parallel of latitude, the distance being approximately 1.06 miles at the Georgia-Alabama line, and gradually lessening towards the east until it is .80 miles below the 35th degree parallel where that parallel crosses the Tennessee-North Carolina boundary.

By a Resolution approved December 20, 1817, the Governor of Georgia was authorized to appoint a mathematician, commissioner and surveyor to act for the State and to proceed in conjunction with those appointed by Tennessee, under an Act of that State, to ascertain, run, and cause to be marked, plainly and distinctly, the boundary line between the two States. By a Resolution approved December 18, 1819, the Governor of Georgia was authorized and requested to have recorded in the Surveyor General's office of this State, the maps. of the lines as run, dividing this

20
State and the States of Tennessee and North Carolina, with the certificates thereunto annexed.
The boundary which was run under that authorization was described as follows :
"Beginning at a point in the true parallel of the 35th degree of north latitude, as found by James Camak, mathematician on the part of the State of Georgia, and James S. Gaines, mathematician on the part of the State of Tennessee, on a rock about two feet high, four inches thick, and fifteen inches. broad, engraved on the north side thus: 'June 1st,
1818; var. 6-% east,' and on the south side thus: 'Geo. 1st,
35 north; J. Camak', which rock stands one mile and twentyeight poles from the south bank of the Tennessee River, due south from near the center of the Old Indian town of Nickajack, and near the top of the Nickajack Mountain, at the supposed corner of the States of Georgia and Alabama; thence running due east, leaving old D. Ross two miles and eighteen yards. in the State of Tennessee and leaving the house of John Ross about two hundred yards in the State of Georgia, and the house of David McNair one mile and one-fourth of a mile in the State of Tennessee with blazed and mile-marked trees, lessening the variation of the compass by degrees, closing it at the termination of the line on the top of the Unicoi Mountain at five and one-half degrees."
Apparently this line was temporarily acquiesced in by both States. Undoubtedly however, its. authenticity was soon questioned, as another line, based on new observations, was run by this same James Camak in 1826. This second line was some 2,500 feet north of and parallel to that run in 1818. Again in 1887, the Georgia General Assembly, expressing uncertainty as to the location of a part of the boundary line, authorized the running of a boundary between the two States. (Ga. Laws. 1887, page 105.)
Although as indicated above, the Georgia General Assembly has expressed doubts as to the exact location of the boundary line between Georgia and Tennessee, and has persistently defined the boundary as being the 35th parallel of north latitude, it must be conceded that the line run by James Camak under the authority of the Georgia General Assembly is. the line which is now used as the boundary between Georgia and Tennessee and which has been so used for a period of more than 122 years. During this period

21
the State of Georgia has not sought to build its highway beyond this line: Maps prepared by the State Highway Department have shown the boundary now used as the northern extremity of the State of Georgia where it adjoins the State of Tennessee. Signs have been erected marking this boundary line. The persons residing between this line and the 35th parallel have paid their taxes to the State of Tennessee, have been reco~ized as Tennessee citizens, and have been subject to the jurisdiction of that State. The State of Georgia has apparently acquiesced in the exercise by the State of Tennessee, or dominion and jurisdiction over that territory. Certainly Georgia has never asserted a claim to the territory in question by legal proceedings and has never sought to assume actual physical dominion over that area.
You inquire as to the proper legal procedure to adopt in order to determine the true boundary line between Georgia and Tennessee. Article 3, Section 2, of the Constitution of the United States provides in part:
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a State may be a party, the Supreme Court shall have original jurisdiction." -
In pursuance of that provision of the Constitution of the United States, the Supreme Court in the case of
Virginia vs. West Virginia, 11 Wall 39, 20 L. Ed. 67, held that the Supreme Court had original jurisdiction of questions of boundary between two states of the Union. In that case the court, after citing the earlier cases in which the jurisdictional question had been raised and discussed, said :
"We consider, therefore, the established doctrine of this Court to be, that it has jurisdiction of questions of boundary between two states of this Union, and that this. jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties. to the proceedings."
See also, Rhode Island vs. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233.

22
In the case of
Missouri vs. Iowa, 7 How. 660, 12 L. Ed. 861,
it appeared that the State of Missouri filed an original bill in equity in the United States Supreme Court against the State of Iowa alleging that a part of the State of Missouri was obtruded on and claimed by the defendant, and that the complainant was wrongfully ousted of her jurisdiction over that territory and obstructed from governing therein and that the defendant had actual possession of the same, claiming it to be within her limits, and exercised jurisdiction over it contrary to the rights of the complainant and in defiance of her authority. Iowa answered the complaint and filed a cross-bill which was answered by Missouri. Replications were filed to both answers. The Supreme Court in discussing the procedural question, said :
"And we take occasion here to say, on a matter of practice, that bill and cross-bill is deemed the most appropriate mode of proceeding applicable to cases like the present, as it always offers an opportunity to the court of making an affirmative decree for the one side or the other, and of establishing by its authority the disputed line, and of having it permanently marked by commissioners. of its own appointment, if that be necessary, as in this case it is."
See also,
United States vs. Te:ras, 143 U.S. 621, 36 L. Ed. 285.
It is clear therefore, that a suit in equity instituted by the State of Georgia, as complainant, against the State of Tennessee, as defendant, in the Supreme Court of the United States., would be the proper and most feasible method of having adjudicated and determined the true location of the boundary line between the two States. I feel it my duty to advise you, however, that if this issue is presented to the Supreme Court of the United States it will probably result in an adjudication against the contentions of the State of Georgia. In the case of
Indiana vs. Kentucky, 136 U. S. 497, 34 L. Ed. 329,
the issue before the court was a dispute as. to the boundary line between Indiana and Kentucky. The court pointed out that it was over 70 years after Indiana became a State before the suit was commenced and during that period she had never asserted any

23
claim by legal proceedings to the tract in question. During that
period Indiana never exercised or attempted to exercise a single
right of sovereignty or ownership over the disputed island and it
was not shown that an officer of hers executed any process, civil
or criminal within it, or that a citizen residing upon it was a voter
at the Indiana polls, or a juror in her courts, or a deed to any
of its lands was to be found on her records, or that any taxes were
collected from residents upon it for her revenues. The court said:
"This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollections of all the witnesses produced on either side. Such acquiescence in the assertion of authority by the State of Kentucky, such omission to take any steps to assert her present claim by the State of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome except by the clearest and most unquestioned proof. It is a principle of public law universally recognized, that long acquiescence in the possession of territory and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority."
And again,
"The long acquiescence of Indiana in the claim of Kentucky, the rights of property of private parties which have grown up under grants from that State, the general understanding of the people of both States in the neighborhood, forbid at this day, after a lapse of nearly a hundred years since the admission of Kentucky into the Union, any disturbance of that State in her possession of the isl~nd and jurisdiction over it."
In
Virginia vs. Tennessee, 148 U. S. 503, 37 L. E. 537,
the court said :
"Independently of any effect due to the compact as such, a boundary line between states or provinces, as between private persons, which has been run out, located, and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even, if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary."

24
See also,
Missouri vs. West Virginia, 217 U.S. 1, 54 L. Ed. 645, New Mexico vs. Colorado, 267 U.S. 30, 69 L. Ed. 499; Michigan vs. Wisconsin, 270 U. S. 295, 70 L. Ed. 595, Oklahoma vs. Texas, 272 U.S. 21, 71 L. Ed. 145.
In
New Mexico vs. Colorado, supra, it was held:
"The boundary between two territories, run on the ground and recognized by the United States Government and the States formed from the territories for more than one-half a century, is the established boundary between the States, regardless of whether or not it was accurately run along the true meridian line."
Under the doctrine announced in the foregoing cases. it is my opinion that the long acquiescence by the State of Georgia in exercise of dominion and sovereignty by the State of Tennessee over the territory between the present State line and the 35th degree parallel, under a claim of right, would be held to be conclusive of the rightful authority of Georgia over that territory. I do not believe that the statutory definition of the boundary by this State as. the 35th degree parallel, or the intimations of doubt by the General Assembly as to the true location of the line, would be sufficient to explain why the State of Georgia has acquiesced in the exercise of jurisdiction over that territory by Tennessee for more than 122 years without taking any legal steps to assert her claim; especially when Georgia herself has adopted the present line as. the boundary between the States through the acts of her public officials, and the present line has been recognized as the boundary for so many years by the people living in the vicinity.
While it is my opinion therefore, that the proper method of having the issue adjudicated would be by the institution of an original bill in equity by the State of Georgia against the State of Tennessee in the Supreme Court of the United States, I cannot recommend that this action be taken or offer any hope of the successful conclusion of such litigation in favor of the State of Georgia if such action is instituted.

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COURTS; JUSTICES OF THE PEACE-Are not county officers, but are officers of the State.
January 2, 1941. Hon. I. N. Daniell, Ordinary, Haralson County, Buchanan, Georgia.
I am pleased to acknowledge yours of the 31st ultimo, requesting me to give you my unofficial opinion as to whether a Justice of the Peace is a county officer.
In the case of Long vs. State, 127 Ga. 285, 286, our Supreme Court held:
"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." In the case of Overton vs. Gandy, 170 Ga. 562, the Supreme Court quoted with approval the above language and followed the Long case, supra.
COURTS; JUSTICES OF THE PEACE-Justice Court is not a court of record.
June 25, 1941. Hon. Allan Arnold, Justice of the Peace, Lexington, Georgia.
This will acknowledge yours of the 19th instant requesting advice as to whether a justice of the peace is a judge of a "court of record."
It so happens that your que~tion has been specifically answered by the Supreme Court of this State. In the case of,
Davis vs. Wilson, 61 Ga. Reports 388, in an opinion by Justice Bleckley which held:

26
"Jus.tice courts are not courts of record; their proceedings are summary and simple; professional skill is not required to conduct them; full and regular pleadings in them are impracticable, and not to be demanded." See also Georgia Decisions, p. SO.

COURTS; ORDINARIES-Court of Ordinary is a court of record.

Hon. Marion Toms, Ordinary, Quitman County, Georgetown, Georgia.

April 12, 1941.

.I am pleased to acknowledge receipt of your communication of April 9, 1941, requesting my opinion as to whether or not the Ordinary is a judge of a court of record.

Under the law the Attorney General can officially advise only the Governor and State officials. However, in a desire to be helpful, I am glad to give you my unofficial opinion.

r~Japter 24-21 of the Georgia Code of 1933 relates. to ordinaries' courts and proceedings therein.

Section 24-2109 of the. Georgia Code of 1933 provides as follows:

"The proceedings shall always be kept of file, and whenever the order is granted the proceedings shall be recorded in a book to be kept for that purpose, for which the ordinary shall receive the same fees as are allowed clerks of the superior courts for similar services."
Section 24-2110 provides:
"The ordinary shall keep a regular book of minutes of the proceedings of his court, on which he shall enter all the applications refused as well as those granted."
Section 24-2111 provides :
"He shall keep a docket of all applications and causes pending in his court, which shall be regularly continued from term to term until the final disposition thereof."
Section 24-2112 provides:
"He shall also keep a docket of all the executors, administrators, guardians, and trustees, who are liable to make

LAW Ll t3f~ARY

tSN!VERSITY OF GEORGit\

r::

I

27
returns in his court, with regular entries of their returns, and of such as have failed to make returns as required by law and the order of the court."
Under the Georgia law, the ordinary serves as judge of probate matters and the ordinary's court is, in effect, a probate court.
Probate courts are "courts of record" and have original jurisdiction in all matters of probates, and judgment of such courts cannot be collaterally attacked.
Short vs. Thompson, 55 Pa. 2nd.163, 166,56 Idaho, 361; Reitz vs. Smith, 56 Ohio, A. B. B. 72.
In the case of
Commonwealth ex. rei. Margiotti vs. Stetton, 327 Pa. 377, it was said:
"A court of record is a court that is bound to keep a record of its proceedings and that may fine or imprison; a court whose proceedings are enrolled for perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called in question; a judicial, organized tribunal having attributes and exercising functions independently of the person of the magistrate designed generally to hold it, and proceeding according to the course of the common law; and a court having a seal."
It has been said by competent judicial authority that a court of record is one the history of whose proceedings is perpetuated and in writing.
In view of the provisions of Georgia law relating to the powers, duties and authority of courts of ordinary in our State, and judicial decisions appertaining thereto, I am of the opinion that the ordinary of a county is the judge of a court of record.

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COURTS; ORDINARIES-Power of Ordinary and Clerk of Court of Ordinary distinguished.
January 21, 1942.
Ron. James J. Daniell, Judge, Court of Ordinary, Cobb County, Marietta, Georgia.
This will acknowledge yours of the 17th instant calling my attention to the decision of the Supreme Court in the case of Head vs. Waldrup, 17 S. E. Reporter (2), 586 and requesting my opinion as to whether an ordinary may continue to render all of the duties. as ordinary even when he has a duly qualified clerk of his court, or whether Code Section 24-1804 means that the clerk only, when he has a clerk, perform the duties there listed.
Your letter raises a very nice question and one which might be very close. While I am not authorized to render you an official opinion upon this subject, I am glad to give you my own personal views with reference to the construction which I think should be placed upon Code Section 24-1804 in view of what was said in the decision referred to above.
In the case of Weeks vs. Hosch Lumber Company, 133 Ga. 472, the Supreme Court, in a well considered opinion, dealing with the power of the ordinary when acting as clerk had this to say:
"The requirement of the law is that when the ordinary and the clerk are the same person, it shall be so stated in the certificate. It is not also required that there shall be a direct additional statement that the ordinary has no clerk. In the present case the ordinary described himself in the certificate as ordinary and ex-officio clerk of the court of ordinary, and likewise signed the certificate as ordinary and ex-officio clerk. It would have been useless to add to the description of his official position as ordinary that he was also ex-officio clerk, except for the purpose of indicating that the ordinary and clerk were the same person; and, fairly construed, such is the meaning which should be given to the certificate."
I am of the opinion that the proper construction to be placed on Code Section 24-1804 is. that when the ordinary is acting with reference to a ministerial or clerical matter, and he has never appointed a clerk, he should indicate as much in his official attesta-

29
tion or signature upon the particular matter in question. The fact that the ordinary has appointed another clerk would not divest the ordinary himself from continuing to act as a clerk of his court also with reference to ministerial matters, so long as the ordinary reveals that his action on a matter was being taken as ex-officio clerk of his court. Thus, the ordinary after appointing a clerk could continue to perform ministerial duties as ex-officio clerk of his court, and at the same time any other clerk or clerks appointed by the ordinary could also perform such ministerial duties. The appointment of a clerk by the ordinary, however, would not divest the ordinary of his statutory right to continue to act as ex-officio clerk of his court, so long as in each instance he exercised this authority as clerk he indicated that such was the capacity in which he was acting.
COURTS; SUPERIOR COURTS-Judges entitled to reimbursement from contingent expense court fund of county for stamps used on official business.
October 9, 1942.
Hon. Eugene Talmadge, Governor, State of Georgia.
This will acknowledge yours. of the 5th instant directing my attention to Code Section 24-3005 which deals with the contingent expenses of Superior Courts and their payment. You request my opinion as to whether, under the authority of this Section, postage stamps used by the Judge of the Superior Court in connection with the business of his court would be a legitimate expense and be paid out of the county treasury.
As you know this Code Section reads as follows: "Any contingent expenses incurred in holding any ses-
sion of the superior court, including lights, fuel, stationery, rent, publication of grand jury presentments when ordered published, and similar items, such as taking down testimony in cases of felony, etc., s.hall be paid out of the county treasury of such county, upon the certificate of the judge of the superior court, and without further order." The language "and similar items" following an enumeration of such specific expenses as those incurred for lights, fuel and sta-

ao
tionery, etc., gives room for the application of the ejusdem generis rule. In this connection, I find that the Supreme Court of Arkansas in the case of Cole vs. White County, 32 Ark. 45, held that postage stamps "may properly be considered as stationery," and that a County Clerk was entitled to reimbursement for stamps which he had bought and used in the official business of his office. Therefore, I am of the opinion that, properly construed, the aforesaid Code Section authorizes the payment out of the county treasury of stamps used by the Judges of the Superior Courts of this State in transacting the official business of their courts, that is to say, stamps used by these Judges in the official discharge of any duty which requires the use of the mails.
I find that there is a decision (Columbia County vs. Rowe, 163 Southwestern 519) in which it was held that the County Tax Assessor was not entitled to reimbursement for stamps since they were not "stationery" within the purview of a special law and since there was a general law which provided that the county court was prohibited "from auditing and allowing to any officer any fee or allowance not specifically allowed to such officer by law" (italics supplied). This decision, however, seems to tum on the ground that the special law did not specifically authorize the county Judges to furnish salaried officers of Columbia County with stamps.
COURTS; SHERIFFS-Not embraced in exemptions from selective service Act of Congress.
April 22, 1941. Hon. Britt Gary, Sheriff Quitman County, Georgetown, Georgia.
I am pleased to acknowledge yours of the 17th instant in which you state that you were elected sheriff in the March primary and took office on January 1, 1941; that you are unmarried and without dependents and subject to draft under selective service. You request me to give you the law on county officials being deferred under the Selective Service System.
The Selective Training and Service Act of 1940 is codified

31
in the United States Code Annotated under Title SO as Sections 301 et seq. Section 305 of this Act as codified provides the various exceptions, exemptions or deferments from training and service a-nd subsection (c) ( 1) reads as follows:
"The Vice-President of the United States, the Governors of the several States and Territories, members of the legislative bodies of the United States and of the several States and Territories, judges of the courts pf record of the United States and of the several States and Territories and the District of Columbia, shall, while holding such offices, be deferred from training and service under this Act in the land and naval forces of the United States." (Italics supplied.)
This exemption is the only one exempting any State officers from the operation of the Act, and it will be noted that the statute does not embrace any exemption in favor of county officers other than those who may be judges of a court of record in this State, such as an ordinary.
EDUCATION-Obligation to furnish schools and text books for immigrants into defense work areas in this state, discussed.
April 24, 1942.
Hon. M. D. Collins, State Superintendent of Schools.
This will acknowledge yours of the 20th instant stating the problem with which you are confronted due to the influx into this State of children of defense workers whose parents have moved from other parts of the State into defense areas, and from other States into such areas.
You request my opinion upon the following questions:
( 1) Is Georgia obligated to furnish teachers to these school systems because of this increased number of children who have come into the defense areas because of defense projects?
(2) Is Georgia obligated to furnish free text books and library books to these defense connected children?
(3) In school houses where they are built on land deeded to the Federal Government is Georgia obligated to furnish teachers and other school costs?
Article 8, Section 1, Paragraph 1 of the Constitution imposes

32
upon the General Assembly of this State the duty to establish a thorough system of common schools for the education of children as nearly uniform as practicable, and provides that the expenses for such a system shall be met "by taxation or otherwise" and then declares that "the schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races." To the same effect is Code Section 32-937 which reiterates the requirement of the Constitution that all common schools shall be gratuitous to all children between the ages of 6 and 18 years "residing in the sub-districts in which the schools are located." In obedience to the constitutional provision above referred to, the General Assembly has created a system of common schools, and, generally speaking, has provided for the expenses thereof by the levying of certain taxes upon the persons and property of the residents of this State whose children enjoy the previleges and benefits of said system. Thus, the scheme of our Constitution and laws relating to free education in this State is that the privileges and benefits afforded by the common school system as a result of taxation shaH be free only to the "children of the State." That is to say, to the children of parents who are residents of this State and who contribute to the support of such schools by the payment of the taxes imposed by our statutes.
On the question of residence or domicile our statutes. provide that "the domicile of a person sui juris may be changed by an actual change of a 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." Section 79-406 of the Code. Also that "the domicile of every minor shall be that of his father, if alive, unless such father shaH have voluntarily relinquished his. parental authority to some other person, etc." Code Section 79-404. Accordingly, it is my opinion that children of parents who have not established a domicile in this State, and who do not contribute by the payment of taxes to this State for the support of the common schools, are not entitled to the benefits and privileges of the schools, gratuitously. There can be no obligation upon the part of the State of Georgia to furnish free schools to the children of parents who come into this State from some other State and

33
remain here with no intention of making Georgia their permanent home. As to such children the local units of administration have the alternative of either denying them access to the schools at all, or of changing such a rate of tuition for their admission into the schools as will make the burden of supporting said schools fall upon their parents in an amount equal to that borne by the taxpaying residents of the school districts in quest.ion.
"No terms can be fixed which will make the expense to nonresidents less per scholar than the expense per scholar to the taxpayers of the town for supporting the school. In other words., nonresidents are at least to pay for their own tuition, and the people of the town are not to be burdened as taxpayers with any part of the same. The Board can put terms upon nonresidents which will make their tuition a source of revenue to the school, but cannot allow terms which will make it an expense upon the inhabitants of the town."
See,
Irvin vs. Gregory, 66 Ga. 605, 612.
See also,
Jolly vs. Catoosa County Board of Education, 191 Ga. 193.
By the same token, I am of the opinion that the State of Georgia is not obligated to furnish free textbooks and library books to children of nonresidents who reside in Georgia only temporarily, and have no intention of remaining here and making this State their home.
The situation is slightly different with respect to children of parents who are legal residents of Georgia, but who move from one county and school district into another county and school district with no intention of changing their residence to the county into which they have moved. As to these children, the State of Georgia does owe a slightly different obligation, for. the reason that the property of their parents, being located in Georgia, is taxable. These parents, therefore, contribute their share to the building and maintenance of a public school system. Their children are entitled to attend, free of charge, the public schools of the district of their residence; and there is no obligation on the part of any other school district to admit such nonresident chi!-

84
dren to the schools of the district wherein their parents are temporarily residing. The school officials of such schools, if they see fit, may require such children to pay matriculation or tuition fees, unless the school district trustees or county board of education of their residence enters into a contract with the school district trustees or county board of education of the county where the parents of such children are temporarily residing whereby the former agrees, out of the tax monies received by it from the property of the parents, to take care of the expense of educating said children in the latter district schools. See,
Taylor vs. Matthews, 10 Ga. App. 852, 860; Article 8, Section 4, Paragraph 1 of the Constitution.
Answering your third question, I am of the opinion that the school authorities of this State have no jurisdiction or control over school houses which are built on land to which the Federal Government holds title. Under our system of public schools, the title to all school property is vested by law in the various county boards of education. Code Section 32-909. School property owned by the Federal Government could not be under the jurisdiction of the county boards of education of the counties in which such property is located. Said county boards could therefore have no jurisdiction or control over it. The Georgia General Assembly would have no legislative authority ~ith respect to such property, as this authority is vested in Congress. Our school laws do not contemplate a dual system of property ownership of public school facilities, embracing, on the one hand, properties owned by the subdistricts, the title, care and custody of which is vested in the county boards of education; and property owned by the Federal Government, on the other hand, over which the State and county school authorities have no jurisdiction, control or supervision.
In conclusion, therefore, I am of the opinion that the State of Georgia is not obligated to furnish teachers to local units of administration for the teaching of children of parents who are nonresidents of this State; that there is no obligation on the State to furnish free textbooks and library books to such children; that there is an obligation on the State to furnish free textbooks and library books to school children whose parents are residents of

35
the State of Georgia, but there is no obligation on the various. school districts in which the parents of such children of residents of Georgia are temporarily residing to admit their children to the schools of said districts without the payment of any matriculation fees or tuition; and the State of Georgia is not obligated and has no authority to furnish teachers and pay other school costs for the operation of school houses on property own~d by the Federal Government. Under the free textbook law the State Board of Education is authorized and directed to inaugurate and administer a system of free textbooks for the public schools of the State of Georgia, and said Board has the authority "to promulgate and enforce such rules and regulations as may be necessary for that purpose." It is obvious from a casual reading of this Section that the State Board has no authority to furnish free textbooks except to children in "the public schools of the State" and schools located on Federal property would not fall under this category. Code Section 32-710. (Of course, the provisions. of said Act may be extended to other State institutions as provided in Section 32-716 of the Georgia Code Annotated, Pocket Supplement. In this opinion it is not necessary to deal with these institutions.) While I am not familiar with the rules and regulations promulgated by the State Board with reference to the furnishing of free textbooks, I am of the opinion that as to children of resident Georgians (but who are nonresidents. of the particular school district in a given defense area where they are temporarily residing) some rule or regulation should be provided whereby duplications in the furnishing of books would not occur. It may be that the rules of the Board already take care of such a situation.
EDUCATION-Whether public schools can be denied to married persons within school age, discussed.
September 30, 1941. Hon. M. D. Collins, State Superintendent of Schools.
This will acknowledge yours of September 24th, 1941, forwarding letter of Hon. James W. Martin, Secretary and Treasurer of the Milner School Board addressed to you under date of September 22nd, 1941, together with letter addressed to me under the

same date, requesting an opinion as to the authority of either the Milner School Board or the County Board of Education to deny admission to the public schools to several girls of school age who are married.
Under Article 8, Section 1, Paragraph 1 of the Constitution, it is provided that "there shall be a thorough system of common schools for the education of children as nearly uniform as practical, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white a~d colored races."
Under Code Section 32-909 the powers and duties of county boards of education are defined and said boards are vested with the authority to "make all arrangements necessary to the efficient operation of the schools." This power would include the authority to make any reasonable rule and regulation for the operation of the schools under their jurisdiction. The statute would not authorize any county board to make any rule or regulation which is unreasonable, arbitrary or capricious, and which would deny to any child of school age free access, as guaranteed by the constitutional provision above quoted, to the public schools of his district.
Although neither of our appellate courts has had occasion to determine the reasonableness or unreasonableness. of a rule or regulation prohibiting any child of school age who is married from attending the public schools of his district, I do find that the Suppreme Court of Mississippi in the case of,
McLeod vs. Miles, 122 Southern 737 63 A.L.R. 1161,
has held that ordinances adopted by a board of school trustees barring married persons, otherwise eligible, from public schools, are arbitrary and unreasonable and an abuse of discretion of the board, and therefore void.
In the opinion in said case Mr. Justice Anderson quoted the provisions of the Constitution of Mississippi which provided for a "uniform system of free public schools, by taxation or otherwise, . for all children between the ages of 5 and 21 years." The court also referred to the compulsory school attendance law of the

37
State which made it the duty of the parent or guardian of any child or children between the ages of 7 and 16 to send such child
or children to public day school, etc. The statutes of Mississippi
also authorized school boards to prescribe and enforce rules not
inconsistent with the law or those prescribed by the State board
of education for the government of the school, and the statute
also gave such board the power to suspend or dismiss pupils when in the best interest of the schools it was necessary." In commenting
upon the ordinance prohibiting married pupils from attending
schools the court said :
"The ordinance is based alone upon the ground that the admission of married children as pupils. in the public schools of Moss Point would be detrimental to the good government and usefulness of the schools. It is argued that marriage emancipates a child from all parental control of its conduct, as well as such control by the school authorities; and that the marriage relation brings about views of life which should not be known to unmarried children ; that a married child in the public schools will make known to its associates in schools such views, which will therefore be detrimental to the welfare of the school. We fail to appreciate the force of the argument. Marriage is a domestic relation highly favored by the law. When the relation is entered into with correct motives, the effect on the husband and wife is refining and elevating, rather than demoralizing. Pupils associating in school with a child occupying such a relation, it seems, would be benefited instead of harmed. And, furthermore, it is commendable in married persons of school age to desire to further pursue their education, and thereby become better fitted for the duties of life. And they are as much subject to the rules of the school as unmarried pupils, and punishable to the same extent for a breach of such rules."
I am of the opinion that although this Mississippi case is not
controlling upon the Georgia courts, nevertheless if the same question were raised before our courts this decision would be considered as highly persuasive of the law, and it is. most likely that the conclusion reached therein would be adopted by our courts. Any rule or regulation making marriage alone the only ground for not permitting a child of school age to attend the
public schools of his or her residence would be unreasonable and
void.

38

EDUCATION-Military service entitles teacher to reemployment.

Hon. M. D. Collins, State Superintendent of Schools.

April 30, 1941.

This will acknowledge yours of the 24th instant to which you attached the letter of Hon. Earnest B. Mingledorff, county superintendent of schools of Effingham County under date of the 21st instant.

Mr. Mingledorff's letter states that Superintendent R. E. Eleazer was employed for the 1940-1941 school year at Springfield and was ordered into military service on September 15th, 1940, and is still in service, and that while the school authorities would be pleased for Mr. Eleazer to return in 1941-1942, they are afraid to await the possibility of his. being able to return. Mr. Mingledorff requests you to obtain the opinion of the Attorney General as to whether the county board of education is in any way bound to give Mr. Eleazer employment after he finishes his period of military service.

The Selective Training and Service Act of 1940 is codified

in the U. S. Code Annotated under Title 50, Sections 301 and

318. Section 308 (a) provides for the physical examination of

each person who is inducted into the land or naval forces under

said Act, and it is required that all physical defects. be noted upon

such examination, and also at the completion of his period of

training and service each such person is given another physical

examination and a medical statement showing any injuries, ill-

nesses or disabilities suffered by him during s.uch period of train-

ing and service. Then follows Section 308 (b) which provides:

1 '

(b)

In

the

case

of

any such

person

who,

in

order

to

perform such training and service, has left or leaves a posi-

tion, other than a temporary position, in the employ of any

employer and who ( 1) receives such certificates., (2) is still

qualified to perform the duties of such position, and (3)

makes application for reemployment within forty days after

he is relieved from such training and service-

"(A) if such position was in the employ of the United States Government, its Territories or possessions., or the Dis-

39
trict of Columbia, such person shall be restored to such position or to a position of like seniority, status, and pay;
"(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so ;
"(C) if such position was in the employ of any State or political subdivision thereof, it is hereby declared to be the sense of the Congress that such person should be restored to such position or to a position of like seniority, status, and pay." I direct your particular attention to subsection (C) of the section quoted above which, of course, is applicable to school districts since they are political subdivisions of the State, and the contracts of employment with teachers in the public schools of the county are with the county board education. See Code Section 32-913 of the Georgia Code Annotated.
I am enclosing a copy of this letter herewith for your convenience in sending the same to Superintendent Mingledorff in the event that you desire to do so.
EDUCATION-State or its political subdivisions not subject to Federal Social Security Act, hence, school teachers not required to register thereunder.
-June 12, 1941.
Hon. M. D. Collins, State Superintendent of Schools.
This will acknowledge yours of the 7th instant enclosing letter of Hon. W. S. Stone, County School Superintendent of Wilcox County, Pitts, Georgia, under date of June 5th, 1941, in which he states that one of the teachers in the schools of his county has been assigned an account number by the Social Security Board, and that it has been his understanding that the county board of education did not have to comply with the Social Security Act on account of the fact that they are a governmental agency. Mr. Stone requests advice as to the correctness of his understanding about this matter.

40
Under Section 409 (b) (7) of the Social Security Act as codified in Title 42 of the U. S. Code Annotated, persons performing services in the employ of a State, or any political subdivision are exempt from the Act. This exemption reads as follows:
"Service performed in the employ of a State, or any political subdivision thereof, or any instrumentality of any one or more of the foregoing which is wholly owned by one or more States or political subdivisions; and any service performed in the employ of any instrumentality or one or more States or subdivisions to the extent that the instrumentality is, with respect to such service, immune to the Constitution of the United States from the tax imposed by Section 410 of Title 26."
Since a s.chool district is a political subdivision of the State, teachers employed by county boards of education to perform services in the schools of the county are excepted from the provisions of the Social Security Act.

EDUCATION; COUNTY BOARD OF-Has no authority to pay part of expense of making audit of county affairs.

Hon. J. 0. White, Jr.,
County School Superintendent, Atkinson County, Pearson, Georgia.

March 17, 1942.

You request information as to whether the county board of education of your county has the authority to use school funds for the purpose of paying a part of the expense of making an audit of the county affairs.

It so happens that our Court of Appeals has already passed upon this question. In the case of Burke vs. Wheeler County, 54 Ga. App. 81, it was held, "public school funds cannot be used for other than school purposes. The contract (between the county commissioner and a public accountant to audit the books of the county tax collector) was illegal insofar as it undertook to obligate the board of education to pay half of the accountant's compensation. A payment by the board of education on account of

41
this contract was recoverable by the county." (Parenthesis ours). In the body of the opinion Judge Sutton pointed out that "public funds cannot be expended unless such expenditure is authorized by law, and money belonging to the public school funds cannot be used for any other than school purposes.
EDUCATION; COUNTY BOARD OF-Not required to carry liability insurance for school buses.
February 6, 1942. Hon. Mark Smith, Superintendent, Bibb County Schools, Macon, Georgia.
This will acknowledge your of the 5th instant in which you state that Bibb County does not carry any insurance on its school buses, and requesting my opinion- as to whether it is required that school boards carry such insurance and whether, in case of accident, there would be any liabilty upon the board of education.
The appellate courts of this State have had occasion to rule upon this question at least twice. (See McLeod v. Pulaski County, 50 Ga. App. 356 and Ayers v. Board of Education of Hart County, 56 Ga. App. 146.)
In the latter case the court held that a petition brought against the Board of Education of Hart County to recover damages for the death of plaintiff's son who was. alleged to have been killed by the negligence of a driver of a district school bus in said county employed by the county board of education to transport pupils to and from schools, was properly dismissed on demurrer because the county board of education was not a body corporate with authority to be sued. In the former case it was held that Pulaski County and the Blue Springs Consolidated School District and the Superintendent of Schools of Pulaski County were not liable in an action to recover damages arising out of a collision between an automobile in which the plaintiff was riding and a school bus driven by the minor son of the man alleged to have been employed to drive said bus. A similar conclusion was. reached by the Circuit Court of Appeals for the Fifth Circuit in the case of Ayres v. Hartford Accident and Indemnity_ Company, 106 Fed. 958.

42
Since there can be no liability against a county board of educacation for injuiry or accident sustained by a school child or teacher while riding upon a school bus, if the county board of education carried liability insurance it would be insuring against an eventuality which could not legally arise. Therefore, aside from any question of legal authority to carry the insurance, there would be no reason whatsoever for so doing.
EDUCATION; COUNTY BOARDS OF-Not compelled to elect teacher recommended by Board of Trustees of Local District. May 6, 1941.
Hon. M. D. Collins, State Superintendent of Schools.
I am pleased to acknowledge yours of the Sth instant inclosing letter of Hon. Lon L. Fleming, County Superintendent of Schools of McDuffie County, in which he requests advice upon the following questions: ( 1) Can the county board elect a teacher in a local school without the local trustees first recommending same?
Answer-Section 32-913 of the Code provides: "The county boards of education are empowered to em-
ploy teachers to serve in the schools under their jurisdiction, and the contracts for said service shall be in writing, signed in duplicate by the teacher on his own behalf, and by the county superintendent of schools on behalf of the board." In construing this section our Supreme Court in the case of,
Orr et al., Tmstees, vs. Riley, 160 Ga. 481, 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." See also,
Hill vs. Conner, 181 Ga. 516.
In contracting with a teacher for a local tax district, the county board is the statutory instrumentality through which local school trustees become bound, and the duty of paying said teacher

43

under the contract is on the local board of trustees and treasurer of the local tax district. See,

Gard vs. Board of Education of Hart Co., 183 Ga. 82.

In the case of,

Green vs. Snellville Consolidated School District, 169 Ga. 667,

it was held,

"The right and power of county boards of education to employ the teachers in schools under their juris.diction is exclusive; and though in local school districts which levy a local educational tax the trustees can make recommendations to the county board and fix the salaries of the teachers, and in other districts may recommend applicants, still in neither case can school trustees employ teachers and make contracts with them for services."

In the case of

Carteret al., Trustees, vs. Johnson, 186 Ga. 167,

it was held that the law as stated in these decisions "was not changed by the Act of the General Assembly approved February lOth, 1937. Georgia Laws 1937, p. 882, Sections 3, 10." Justice Bell, writing the decision for the court, said:

"It appears that in passing the act of 1937 the General Assembly was in a repealing state of mind, as note s.ection 18, in which no less than sixteen sections of the Code relating to school law were expressly repealed. Repeals by implication are not favored; and in view of the many express repeals, in which section 32-913 was not mentioned, it is quite plain that the legislature intended that this section should be retained."

Further, in commenting upon the question as to whether it is

the duty of the county board of education to follow the recom-

mendation of local boards of trustees in the employment of teach-

ers, Justice Bell said :

"It is follow the

insisted * * * that it
recommendation as

was the duty made by the

otfrutshteeebsoa*rd*to*

As a matter of comity, the county boards will doubtless fol-

low the recommendations of the trustees in most instances.

The law, however, does not in any case compel them to do so."

(Italics supplied.)

44
I think that what is said by Justice Bell in this case answers not only the first question but also the third question of Mr. Fleming as follows: "(3) Is the law giving the local trustees the right to recommend teachers for election to their schools to the county board a permissive law, or is the county board restricted to electing a teacher that has been recommended by the local board first?"
Your second question is as follows: "(2) Would this matter fall under Section 32-910 of the school law, thereby giving the county board the right to override the action of the local trustees and in the event the county board so desires. re-elect this teacher?" Answer-In view of the fact that the Supreme Court has so plainly spoken upon this question, and in view of the further fact that the county board has exclusive jurisdiction in the employment of teachers, I do not think that the matters contained in Mr. Fleming's letter constitute a "local controversy" of the kind contemplated by Code Section 32-910. In other words, I am of the opinion that if the controversy were submitted to the count)" board of education as. a tribunal for hearing and determining it, it would be the duty of the county board to follow the law as interpreted by our Supreme Court, just as it would be the duty of any other judicial tribunal hearing such a matter to do.
EDUCATION; COUNTY BOARDS OF-Terms of members, and commission of successors.
May 27, 1941. Hon. M. D. Collins, State Superintendent of Schools.
I am pleased to acknowledge yours of the 26th instant relating to the appointment of Hon. A. L. Colston as a member of the Johns.on County board of education, and to the appointment of his successor, Hon. R. A. Fulford as a member of said board. You request my opinion as to which of these two gentlemen should be issued a commission as a member of the Johnson County board of education.
The facts set out in your letter and supported by the file are as follows.: Mr. Colston was first elected as a member of the

45
Johnson County board of education in September, 1~35, and commissoned on October 29th, 1935, for an unexpired term of the date of May 30th, 1936. He continued to serve as a member of said board after the expiration of said commission, for the reason that the office of State Superintendent of Schools was not notified that anyone had been appointed or selected as his successor. At the March term, 1939, Mr. Colston was elected by the grand jury of Johnson County to succeed himself and was commissioned April 20th, 1939, the commission reading for the remainder of the term between May 30th, 1936, and May 30th, 1940.
The grand jury, at its March term, 1941, elected or recommended for appointment Hon. R. A. Fulford as a member of the county board of education to succeed Hon. A. L. Colston, and the clerk of the superior court of Johnson County has., in compliance with the requirements of Code Section 32-905, forwarded to you as State Superintendent of Schools a certified statement of the facts relating to the selection of Mr. Fulford, under the seal of the court. This certificate sets out the action of the grand jury as follows:
"We the grand jury of Johnson County, Georgia, at the March adjourned term, 1941, recommend the appointment of R. A. Fulford as member of the board of education of said county to succeed Alvin L. Colston."
There is also attached to the file a statement signed by eighteen members of the grand jury of the March term, 1939, of the Superior Court of Johnson County to the effect that it was the intention of said grand jury to elect A. L. Colston at said term of the grand jury as a member of the board of education for said county for a period of four years at the expiration of the term of office he was holding.
The law governing the election by the grand jury of members of county boards of education is set out in Section 32-902 of the Code. Members of the county board of education have been selected by the grand juries of the various counties since January lOth, 1872. (See Ga. Laws 1871-72, p. 279, Section 4.) In this act, it was provided for the first time:
"That the grand jury of each county in this State shall, at the first session after the passage of this act, select from the

46
ctttzens of their respective counties five freeholders, who shall constitute the county board of education, three of whom shall be elected for two years, and two for four years, but all of whom after the first election shall hold for the term of four years, etc."
Prior to this act, Section 16 of the act of 1870 (Ga. Laws 1870, pp. 49, 52), provided for the election of members of the county board of education as follows:
"The county board of education shall consist of one person from each militia district, and one person from each ward in any city in the county, and one from each incorporated town, who shall be elected by the legal voters of said district, ward or incorporated town, at some suitable place designated therein; and the term of office of said board shall be two years, or until successors are elected, the first election for which shall be on the first Saturday in January, 1871, and on the same day every second year thereafter."
Section 4 of the act of 1872 repealed Section 16 of the act of 1870, and substituted in lieu thereof the present method of selecting members of the county board. Section 16 of the act of 1887, (Ga. Laws 1887, pp. 68, 71), which act was a codification and revision of all previous school laws, also provided for the selection of members of the county board of education by the grand juries of the various counties and provided a four year term for such members. The same provision was also carried in the act of 1893, (Ga. Laws 1893, p. 62) as Section 1. See also Volume 1, Code of 1895, Section 1354; Code of 1910, Section 1479.
Section 32-902 provides in part as follows:
"The grand jury of each county (except those counties which are under a local system) shall, from time to time, select from the citizens of their respective counties five freeholders, who shall constitute the county board of education. Said members shall be elected for the term of four years, and shall hold their offices until their successors are selected and qualified."
It will be noted that this statute does not fix the beginning date of the term of members of the county board of education selected by the grand jury. Therefore, the rule adopted by the decisions of our Supreme Court would govern such matters. The rule to which I refer is that "in the absence of legislation fixing the be-

47

ginning 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,

Talmadge vs. Cordell, 167 Ga. 594; McCleskey vs. Zimmer, 144 Ga. 834; Thoop on Public Officers, Section 318.

In the McCleskey case it was said:

"A term of office is for a definite time; it remains in-

variable, always the same, and is not subject in its duration to

the wishes or agreements of any person whomsoever; while

tenure of office may be terminated by his resignation and his

acceptance. During one term there but there can not be several terms

imn aoynebetesneuvreer.al*te*nu*reIsn,

some jurisdictions it has been held that in the case of ap-

pointive offices the beginning of the term of the first ap-

pointee determines. the limits of the terms of successive ap-
pointees. * * * The underlying reason is, that the appointive

power, in the absence of legislation fixing the beginning of

the term, is delegated with the power to fix the beginning of

the term of the first appointee; and that thereafter all subse-

quent terms are governed by the beginning of the term of the

first appointee."

Accordingly, when the very first person was appointed by the

grand jury after the passage of the act of 1872, (Ga. Laws 1872,

p. 279, Section 4), as a member of the county board of education

for the term of office now in dispute, the date of the commission

of such appointee fixed the beginning date of the four year term

of the member so appointed, as well as the beginning and ending

date of subsequent terms of members appointed to this particular

post. Therefore, assuming that the first commission issued to Mr.

Cols.ton when he was first elected by the grand jury as a member

of said board was in strict accordance with the beginning and

expiration dates of the term of said office as established by the

commission of the very first person selected by the grand jury

in said county to fill this post, then the first term to which Mr.

Colston was commissioned expired on May 30, 1936; the second

term to which he was commissioned expired on May 30th, 1940;

and all subsequent terms in this particular post would terminate at

intervals of four years thereafter on the same date. It necessarily

48
follows that if the purpose and intent of the grand jury at the March term 1939 was to select Mr. Colston for a four year term beginning June 1st, 1939, and ending May 30th, 1943, they had no authority so to do. They did have the authority to select someone for the remainder of the unexpired term ending May 30th, 1940, and the selection of Mr. Colston for the unexpired term ending May 30th, 1940, was proper, provided he met all the qualifications of the statute and was not disqualified by any of its terms.
The grand jury for the March terms 1941 was acting well within the orbit of its authority in selecting Hon. R. A. Fulford as a member of the county board of education to succeed Hon. A. L. Colston, and Mr. Fulford should be commissioned for the unexpired term May 30th, 1944, the clerk of the superior court having submitted the affidavit required under Code Section 32-905.
I wish to emphasize the fact that this opinion is based upon the assumption that throughout the years from 1872 the commissions to the various predecessors in office of Mr. Colston and Mr. Fulford have regularly followed the four year term beginning and expiration dates as established by the commission of the first member of the county board of education of Johnson County appointed under the authority of Section 4 of the act of 1872, for when the commission was issued to the first man selected by the grand jury under said act its date fixed the beginning and ending dates of all subsequent four year terms to this particular membership on the county board of education of said county. While to comment upon the case of,
Stephenson vs. Powell, 169 Ga. 406,
seems to be unnecessary in view of the fact that what is held in this opinion is in perfect harmony with the ruling in said case, it might be profitable to review the facts in said case in order to demonstrate exactly what the court held therein.
The facts in said case, briefly summarized, were: On January 28th, 1918, after W. L. Mixon had been selected by the grand jury of Johnson County at the September term 1917, he was issued a commission by the Governor. The grand jury had selected him for a full four year term. There is no fact set out in the report of the case which indicntes that the grand jury exceeded

49
their authority in electing him for a full four year term. Thus, when the commission was issued to him by the Governor, it should have read for a four year term ending January 27th, 1922. Instead, the commission, by its terms, read for a term to expire on May 30th, 1920. The Supreme Court held that they could look behind the various commissions and determine what the actual legal term was ; that the commission issued by the Governor was not controlling, especially if the time fixed in the commission did not coincide with the legal term. The term being dealt with in this case was a term which, as stated, began on January 28th, 1918, and on January 28th of each fourth year thereafter. So despite the fact that by its terms his commission expired on May 30th, 1920, Mr. Mixon continued to hold office until the September term 1922, at which time he was again elected for the term of four years. Mind you, his first term had expired on January 28th, 1922. Accordingly, he was holding over into another term which began on January 28th, 1922, and when the grand jury at the September term, 1922, elected him for "the term of four years" they exceeded their authority to the extent of the time from January 28th to September which had already expired on the second four year term. That is to say, the grand jury of the September term, 1922, should have elected Mixon for the unexpired term ending January 27th, 1926, and the commission issued by the Governor to Mixon on October 16th, 1922, should have so read. Instead, said commission provided for the expiration of Mixon's second term on May 30th, 1924. Accordingly, at the time Stephenson was elected by the grand jury at the March term, 1926, to succeed Mixon, Mixon had finished his second term which ended on January 27th,.1926, and he was. apparently holding over and was serving into a new term which began on January' 28th, 1926, and which would end on January 27th, 1930. There could, therefore, be no dispute as to the authority of the grand jury at the March term, 1926, to select. Stephenson as the successor of Mixon, and the legal term to which Stephenson was selected was the one beginning January 28th, 1926, and ending January 27th, 1930. Unfortunately again, the commission issued by the Governor was improperly worded in that by its terms. it purported to fix the expiration date of Mr. Stephenson's term as

50
of May 30th, 1928, when it should have fixed the same as January 27th, 1930.
At this stage of the matter, the judge of the Superior Court passed an order appointing one Powell to succeed Stephenson as a member of the board, his action in this regard being based upon the assumption that there was. a vacancy in the office due to the alleged expiration of the term of Mr. Stephenson as erroneously fixed in the commission issued to him by the Governor. As a matter of fact, there was no vacancy either in the office or in the term, for Mr. Stephenson was continuing to discharge the duties of the office, had not resigned, had not died, and had done nothing else to create a vacancy in the office, and his legal term of office would not expire until January 27th, 1930. On May 18th, 1929, the court passed an order revoking the appointment of Powell as. a member of the board on the ground that it was erroneously and improvidently granted. On May 22nd, 1929, Powell filed a petition to the judge of the Superior Court setting forth that he was a duly qualified member of the board by virtue of the order granted by the court on April 23rd, 1929, so appointing him, and prayed that the order of May 18th, revoking the appointment be itself revoked, and the court granted an order revoking the order of May 18th aforesaid, and confirming the order of April 3rd, 1929, appointing Powell a member of said board. Stephenson excepted to these orders, insisting that instead of revoking the order of May 18th, 1929, the court should have confirmed it. Upon appeal to the Supreme Court it was held that the lower court erred in revoking the order of May 18th, 1929. This was a unanimous. opinion and it was positively held that "the term of Stephenson had not expired," and "if it had expired there was no vacancy to be filled by the judge," and in doing so again reiterated the sound principle that "a commission issued by the Governor to a duly elected member of a board of education of a county, in which the term of such officer is stated to be for a given number of years and to end on a designated day, is not conclusive evidence of the right of such officer to hold beyond such term and designated date, and does not prevent courts from looking behind the commission and determining, in a proper case, when the term of such officer legally begins and ends. The statute and not the

51
commission determines the commencement and ending of the term of such officer."
I am of the very definite opinion that in view of the above cited authorities, and relying upon the certificate filed with you by the Clerk of the Superior Court of Johnson County verifying the fact of Mr. Fulford's election by the grand jury to succeed Hon. Alvin L. Colston, it is your duty to issue a commission to Mr. Fulford for the unexpired term ending May 30th, 1944, as a member of the county board of education of Johnson County.
This opinion is in complete accord with the opinion of the late distinguished Attorney General M. J. Yeomans dated December lOth, 1937, and directed to you as State Superintendent of Schools. It also follows the views expressed in my letter of November 16th, 1940, directed to you in response to the same question that arose in Laurens County. Not only is the law clear on the subject under discussion but for a long period of years the administrative construction placed upon the statute by you and your distinguished predecessor in office has been consistent with the views herein expressed.
EDUCATION; COUNTY BOARDS OF-County Superintendents of Schools cannot pay clerical salaries from public school funds. March 12th, 1941.
Hon. M. D. Collins, State Superintendent of Schools,
I am pleased to acknowledge yours of the 11th instant requesting my opinion as to whether county superintendents of schools, on the approval of the county boards of education, have the authority to employ bookkeepers, secretaries or clerks as aides. in the office of the county superintendents of schools.
Section 32-913 of the Code provides: "The county boards of education are empowered to em-
ploy 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."

52
Chapter 32-10 of the Code deals with the manner of election, powers, duties, etc., of the county superintendents of schools, and without quoting the provisions of this Charter, it is sufficient to state that no power is. conferred upon said superintendents to employ clerical aid, bookkeepers, secretaries or clerks either with or without the approval of the county board of education. The fact that no such power is vested in the superintendents of schools is further emphasized by Section 9 of the Equalizing Opportunities Act of 1937, (Ga. Laws 1937, p. 882), which Section prescribes and limits the purposes for which the common school fund may be used. These purposes are, briefly stated:
( 1) To pay all teachers in the public schools of the State except county superintendents;
(2) To pay the salaries of county school superintendents as now provided by law ;
(3) To pay each local unit of administration 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 expense of transportation and other administrative expenses; and
(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 expenses of the Department of Education as may be authorized by the State Board of Education and approved by the State Superintendent of Schools."
It will be observed that this statute makes a distinction between "salaries" and "administrative expenses" and it is clear that said terms are not used in the statute as being synonymous. It should be noted also that the statute does not authorize the payment of salaries of bookkeepers, secretaries or clerks, and in view of the distinction made in the statute itself between the payment of salaries and administrative expenses, it cannot be said that the term "administrative expenses" was meant to include salaries of such personnel as above referred to.
I am therefore of the opinion that county superintendents of schools have no authority, either with or without the approval of the county boards of education, to employ bookkeepers, secretaries

53
or clerks as aides in their office and to pay their salaries out of the common school funds.

EDUCATION; COUNTY SCHOOL SUPERINTENDENTS

-Not ineligible to be secretary-treasurer of Board of Trustees of Local School District if such County Superintendent is a member of such local board of trustees:

Hon. B. E. Thrasher, Jr.,

April 18, 1941.

State Auditor.

I am pleased to acknowledge yours of the 17th instant re-

questing an opinion upon the following state of facts as. set out

in your letter:

"Code Section 32-1119 provides that the secretary and treasurer of a local school district may receive 2%% commission of the amount of local tax collected as his compensation as secretary and treasurer if the board of trustees so orders. We have several cases in the State where the county school superintendent of schools has been designated as secretary and treasurer of local school districts, and my thoughts along this line are that, if the board of trustees of the local school district should designate the county school superintendent or if he should act in any way as secretary and treasurer of the local district, he would be entitled to the 2%% com- mission which would normally be paid out to any other secretary and treasurer."

Section 32-1119 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 2%%, but there shall be no commission allowed on the amount received by the State."

This section should be construed in connection with Section 32-1104 of the Code relating to the election and qualifications of

school district trustees, and the election by such board of trustees of its. officers, including the secretary and treasurer. This section

provides in part:

"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." (Italics supplied.)
In other words, the board of trustees is limited, by this section, in its selection of a secretary and treasurer to selecting said officer from the membership of the board. Therefore, unless the county school superintendent is a member of the local board of trustees he would be ineligible to hold the office of secretary and treasurer. I know of no statute or constitutional provision which would pro~ hibit a county school superintendent from holding, at the same, the office of local district trus.tees.
If, as a matter of fact, the county superintendents in question are members of the local boards of trustees by whom they have been designated as secretary and treasurer of the bo~rd they would be entitled to the compensation provided in Section 32~1119 if the local board has exercised its discretion and by proper resolution voted to allow the secretary and treasurer a commission of 22% upon local taxes collected.
I would suggest that you inquire into the facts in each case to determine whether the county superintendents in question are members of the local district board of trustees.
EDUCATION; LOCAL SCHOOL DISTRICTS-Secretary and Treasurer entitled to commission, when.
February 20, 1942. Hon. W. S. Davis, Treas.urer, Griggs School District, R. F. D. No. 1, Colquitt, Georgia.
This will acknowledge yours of the 16th instant requesting information as to the legal fees or commissions to which you are entitled for taxes collected and handled by you as Secretary and Treasurer of the Griggs School District. You inquire specifically as to whether you are entitled to any fee or commission on the bond taxes collected.
Your question is answered by the provisions of Code Section 32-1119 which reads in part as follows:

55
"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."
Accordingly, I am of the opinion that unless the board of trustees of the local school district officially votes to allow you a commission on the amount of local tax collected, you will not be entitled to any commission thereon. The board has the authority to either allow you a commission on local taxes collected of not to exceed two and one-half per cent, or they may not allow any commission to you.
In no event would you be entitled to any commission on bond taxes collected, for the reason that when school district bonds are voted and issued Code Section 32-1402 permits the tax levying authorities to levy only a sufficient amount for the purpose of taking care of and paying the principal and interest of these bonds or the amount necessary to provide a sinking fund for the retirement of said bonds and for the payment of principal thereof and interest thereon. Thus, no provision is made for including in the levy for such purposes an amount sufficient to pay a commission to the Secretary and Treasurer of the local school district for his services in collecting such bond taxes. In fact, this same Code Section provides in part that "no compensation shall be paid to said board of trustees or any member thereof for service" in connection with the handling of the bond money, or the proceeds derived from the sale of the bonds or from the collection of taxes to retire the bonds.
EDUCATION; LOCAL SCHOOL DISTRICTS-Election expense of trustees not specifically authorized to be paid from school funds.
February 17, 1941.
Ron. B. E. Thrasher, Jr., State Auditor.
I am pleased to acknowledge yours of the 11th instant inclosing a copy of letter from W. W. Wells, Secretary and Treasurer, Board of Trustees., Forest Park Consolidated School District,

56
under date of February 10, 1941, requesting your opinion as to the authority of the board of trustees of said school district to pay from the school funds of said district the expense of holding a trustee election.
Section 32-917 of the Code of Georgia of 1933 authorizes county boards of education to consolidate two or more districts or parts of districts into one district, and provides for the election of a board of trustees of the consolidated school district after said consolidation has been perfected. Neither this section nor any other section of the school laws which I am able to find make any provision for the payment of the expense of such elections out of the school funds of the district. Consequently, there is no law upon which I could base an opinion holding that such expense could be paid out of the school funds of the district. It may be that the General Assembly contemplated that the public-spirited citizens serving on the local boards of trustees would donate-their time and services in the holding of such elections. Without any' express statutory authority making provision for the payment of such expense out of the school funds of the district, I am not prepared to hold that such expense I?ay be so paid.
EDUCATION; LOCAL SCHOOL DISTRICTS-Treasurers are not entitled to 2l!z% commission on funds collected for the payment of bonds.
January 6, 1941. Hon. M. D. Collins, State Superintendent of Schools.
I am pleased to acknowledge yours of the 4th instant, requesting my opinion upon the following question:
"Is the treasurer in a local tax district who is allowed two and one-half per cent commission on maintenance funds permitted to receive two and one-half per cent commission on funds collected for school bond issues?" Under the authority of Code Section 32-1119 the various boards 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." There is a well recognized distinction between "local tax" and "bond tax," and I am of

57
the opinion that bond taxes, under a proper construction of this Code Section, are not embraced within the meaning of the term "local tax." This is fortified by the language of Code Section 32-1402 which prescribes how the proceeds derived from the sale of bonds shall be held and us.ed and prescribes the purposes to which collections of bond taxes shall be applied. This Section provides in part :
"For the purpose of taking care of and paying the principal and interest of these bonds, the board of trustees shall recommend, and the board of county commissioners or the ordinary, as the case may be, shall levy upon the property subject to taxation in the district, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for the 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." (Italics supplied.)
In other words, this Section restricts the levy of all bond taxes. to the amount only which is necessary to pay the principal thereof and the interest thereon, and therefore would not permit of the levy and collection of amount necessary not only to pay these items, but also a two and one-half per cent commission to the local treasurer.
I am, therefore, of the very definite opinion that the treasurer of a local school district is not entitled to a commission of two and one-half per cent on funds collected for the payment of the principal and the interest of a bonded indebtedness of the district.
EDUCATION; BONDS FOR SCHOOL BUILDINGS-Used only for retirement of principal and interest.
March 11, 1941.
Hon. M. D. Collins, State Superintendent of Schools.
This will acknowledge yours of the 7th instant forwarding me the letter of Honorable N. A. Bacon, Secretary of the Irwinton Board of School Trustees, under date of March 5, 1941, and requesting my opinion upon the questions therein propounded.

58
Mr. Bacon states in his letter that back in the 1920's the voters of Irwinton School District voted a bond issue for building the Irwinton School, but failed to include provision for a maintenance tax. He further states that the building is exposed to a fire hazard and is in a state of deterioration and that he has heard that the Supreme Court has held that local school authorities may use a sufficient amount of the bond money for the purpose of protec~ing the school property against such things.
I am not aware of any decision of our Supreme Court holding that bond money may be used for such purposes. In fact, the plain language of the statute providing how the proceeds of bonds shall be held and used and how taxes levied for the retirement thereof shall be used is not broad enough to authorize the use of bond money for these purposes. Section 32-1402 of the Code provides, in part :
"For the purpose of taking care' of and paying the principal and interest of these bonds, the board of trustees shall recommend, and the board of county commissioners or the ordinary, as the case may be, shall levy upon the property subject to taxation in the district, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and the interest thereon; this to be in addition to the general tax for the maintenance of the schools of said territory." (Italics supplied.)
I am, therefore, of the opinion that bond money cannot be used for any purpose except "to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and maintenance tax for said purpose under the authority of Section the interest thereon." The expenses referred to by Mr. Bacon would have to be taken care of by the levy and collection of a 32-1108.

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EDUCATION; STATE BOARD OF-Certificate required as prerequisite for charter of professional s.chools.

Hon. M.D. Collins,

January 21, 1942.

State Superintendent of Schools.

This will acknowledge yours of the 16th instant requesting information upon the following question:

"Should a _business school offering correspondence
courses or other general courses in commercial subjects. have a charter in order to operate in Georgia, and if so, should it have the approval of the State Board of Education b~fore said charter is issued?

I refer you to Section 32-415 of the supplement of the Georgia Code Annotated, which Section is codified from the Act of

1937. (Ga. Laws 1937, p. 868). This Section reads as follows:

"The State Board of Education shall prescribe, by regulation, standard requirements for universities, colleges, normal or professional schools, conferring degrees or issuing diplomas in this State, and no charter granting the right to confer such degrees or diplomas shall be granted or issued until the applicants therefor have obtained from the State Board of Education a certificate showing that such requirements of the Board have been met."

EDUCATION; STATE BOARD OF-Right to purchase land for, erect buildings. or buy equipment for vocational trades schools, discussed.

Hon. M. D. Collins, State Superintendent of Schools.

October 10, 1941.

This will acknowledge yours of the 8th instant transmitting the request of the Committee on Vocational Education of the State Board of Education for an opinion upon the following questions:

"1. Does the State Board of Education, under the present law, have the right to purchase land on which to erect buildings and equip same for a vocational trades school?
2. If not, would the State Board of Education have authority to erect buildings and buy equipment to be placed

60
on land that might be acquired through a grant or as a gift? 3. If neither of the above plans is legal, is there any other plan by which the State Board of Education might establish a vocational trades school?"
Answering your first question, I am of the opinion that the State Board of Education does not have the right to purchase land on which to erect buildings and equip same for a vocational trades school. The power and authority which the board has with respect to such institution is derived from the Act of 1941 previously referred to and quoted from in my opinion to your committee under date of October 7th. But, as stated in that opinion, this Act vests the board only with the authority to receive, accept, hold and operate on behalf of the State of Georgia any real, personal and mixed property which it might obtain as a result of "donations, grants, gifts, devises and bequests," and does not confer upon said board the authority to purchase such property.
Answering Question 2, I am of the opinion that if the State Board of Education acquires lands as the result of a donation, grant, gift, devise or bequest in the manner set out in the Act of 1941, then it has authority to erect buildings and to purchas.e equipment and supplies necessary for the equipment and maintenance of the property as.a vocational trades school. This authority is found in the language of the Act of 1941, which authorizes the board to "operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, personal and mixed property of every kind and character," and to "leas.e, manage and otherwise administer the same for the use, benefit and behoof of the common school system of Georgia, etc.", and "to acquire and hold title for and on behalf of the State of Georgia, for the benefit of the common school system thereof, any equipment and/or supplies, both permanent and expendable, that may be necessary for such purposes, and to act as the contracting agent therefor and the custodian thereof, etc." (Italics supplied.)
In view of the fact that Question 2 is. answered in the affirmative, it becomes unnecessary to answer Question 3.

61
EDUCATION; STATE BOARD OF-Right to take over and operate vocational trade school when indebtedness must be assumed, discussed.
October 7, 1941. Hon. M. D. Collins, State Superintendent of Schools.
This will acknowledge your request of the 6th instant on behalf of the Committee of the State Board of Education for an official opinion "as to whether or not the State Board of Education may legally take over and operate the Georgia Vocational and Trades School (Monroe, Georgia), and also assume any outstanding indebtedness that may be connected with this institution."
Since under Article 6, Section 10, Paragraph 2 of the Constitution the Attorney General is made "the legal advisor of the Executive Department" and since the State Board of Education is an adjunct of the Executive Department, I deem it proper to comply with the request of the State Board of Education and to submit you herewith my official opinion upon the questions propounded.
For the purpose of this opinion, I shall divide the question into two parts, and first deal with the authority of the Board to "take over and operate the Georgia Vocational and Trades School"; and then deal with the question as to whether the Board may legally "assume any outstanding indebtedness that may be connected with tHis institution." Both questions involve the proper construction of the Act approved March 27th, 1941, (Ga. Laws 1941, p. 568), for this Act embodies the authority, as. I understand it, upon which your Board intends to base any action taken in the premises. Before discussing or construing the Act in question, it will not be amiss to set forth a brief statement as to the present status of the title of the property.
As shown by the records in the office of the Regents of the University System of Georgia, title to this property was vested in the Regents of the University System of Georgia until June 19th, 1935, when it was conveyed by the Governor and the Regents to certain named parties composing the county board of education of Walton County, Georgia, and their successors in office. This con-

62
veyance was made pursuant to a resolution of the Regents. on June 7th, 1935, under the authority of the Act approved March 20th. 1935. In the resolution it was determined and declared by the Regents that said property could "no longer be advantageously used in the University System" and that it was "to the best interests of the University System that the same be disposed of." The aforesaid conveyance was made subject to the condition that if and when said bargained premises "ceased to be used for educational purposes as contemplated by the educational system of the State of Georgia, the title to the same shall revert to the State of Georgia as part of the University System; the Regents of the University System shall be the sole judges. of the use of said property under this provision." In this connection, I have not been advised that the Regents have ever adjudged that the property had ceased to be used for educational purposes as. contemplated by the educational system of the State of Georgia, so as to make the title of the property revert to the State of Georgia under the condition of the deed above referred to. It may be stated, therefore, that title to said property is now vested in the county board of education of Walton County.
Prior to the conveyance above referred to, the Regents of the University System of Georgia on July 1st, 1933, entered into a contract with the Georgia Vocational and Trades School, Incorporated, a corporation, whereby the property was rented to said corporation, its successors and assigns, together with all of the improvements thereon, including the personal property, for the sum of $1.00 per year as. rental and under said lease the corporation agreed to keep the improvements on the real estate in good repair and, at the expiration of the lease, to surrender possession of same in as good condition as the same was delivered to it, natural wear and tear excepted. And with respect to the personal property covered in the lease, the corporation agreed, at the expiration of the lease, to deliver the same back to the Regents in the same condition in which each item thereof was received, no allowance being made for wear and tear, further agreeing to replace any article which could not be delivered to the Regents in the condition above specified. The lease was for a term ending September 1st, 1935.

63

I have before me a resolution by the board of education of

Walton County, Georgia, authorizing "the president and secre-
tary * * * to execute such instruments of conveyance as will carry

out the purposes of this resolution, respectively conforming to the

terms and conditions of the grants from the Board of Regents of

the University System of Georgia, and any other benefactors af-

fected hereby, and which shall likewise comply with the provisions

of the aforesaid Act approved March 27th, 1941," and further

providing that "these designated officials are further empowered

to negotiate with the appropriate officials and/or representatives

of the State Board of Education to such extent as may be neces-

sary to consummate the transfer of said property as hereinbefore

provided, and seek the acceptance thereof by the State Board of

Education upon such basis as may be expedient and legally per-

missible and desirable, and to agree upon such rules and regula-

tions for the future operation of said Georgia Vocational and

Trades School and the assumption of formal jurisdiction thereof

as will carry out the purposes of the original grants, observe the

reversionary clause or clauses therein, and otherwise conform to

the law in such cases made and provided." It is therefore obvious

that the county board of education of Walton County, in making

any conveyance to the State Board of Education, seeks and de-

sires to do so in pursuance of and in conformity with the Act of

1941.

.

The Act of 1941 amended Section 4 of the Act of 1937, (Ga.
Laws 1937, p. 864), creating the State Board of Education and
defining its powers, duties, etc. So much of the amendment of
1941 as is material to a decision of the questions under discussion
is quoted as follows:
"The said Board is hereby authorized and empowered to receive, accept, hold and operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, personal and mixed property and every kind and character, to lease, manage and otherwise administer the same for the use, benefit and behoof of the common school system of Georgia, and to accept on behalf of the State of Georgia any funds which may be now or hereafter provided for, or hereafter become available or allotted to the State of Georgia by virtue of any appropriation of Congress or under any governmental regulation, order or declaration of policy for

64
either vocational or other educational purposes * * *; and
said Board is authorized and empowered to acquire and hold title for and on behalf of the State of Georgia, for the benefit of the common school system thereof, any equipment and/or supplies, both permanent and expendable, that may be necessary for such purpos.es, and to act as the contracting agent therefor and the custodian thereof and to delegate in whole or in part, any function or activity enumerated or contemplated hereunder, and to contract with and cooperate with any department, agency or instrumentality either of the State of Georgia or of the United States, in any manner which shall be requisite or incident hereto, which in the judgment of said Board may be deemed proper for the carryinrr into effect all the purposes of thi~ Act. 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 to meet the terms in any past, present or future grant to the State or any local school unit whereby the same respectively may be able to derive full advantage from the benefits thereof to the State of Georgia as contem~ plated under the terms and provisions of any such grant for educational purposes, 'no funds shall be used to meet any past or future grant to the State, but shall be available only for any present grant now available'."
Accordingly, there can be no doubt as to the authority of the
State Board of Education to take over and operate the Georgia
Vocational and Trades School, but the authority to do so must be
exercised in the manner and within the limits defined by the Act
of 1941. With this qualification, your first question is answered
in the affirmative.
Thus, it is. pertinent to determine the extent of the authority
of the State Board of Education as to the manner of obtaining
title to the property in question. The Act says that the Board is
authorized to receive, accept, hold and operate any real, personal
or mixed property which it may secure as a result of any "dona-
tions, grants, gifts, devises and bequests." There is nothing to
indicate that the words "donations, grants., gifts, devises and be-
quests" were used in the statute in any peculiar sense or that the
General Assembly intended that they should carry any meaning
other than their ordinary signification. Consequently, their mean-
ing is governed by the first rule of statutory construction which
is that "the ordinary signification shall be applied to all words.."

65
Code Section 102-102. Likewise, since all these words appear in the same phrase ofthe same sentence, the rule of noscitur a sociis may be appropriately applied, that is to say, that each of these words takes color from the other and this rule, embracing the maxim of ejusdem generis would forbid our giving any one of these words a meaning which is antagonistic to the meaning of the other. As was said by Circuit Judge Baker in the case of Standard Oil Company of Indiana vs. United States, 164 Federal 376, 390, in commenting upon the meaning of the terms, "give," "receive," "grant," and "Accept" as used in the Elkin's Act:
"Ordinary and accepted meanings of 'give' and 'receive' are synonymous with those of 'grant' and 'accept.' As all those words appear in the same phrase of the same sentence, the principle of ejusdem generis forbids their being taken to indicate acts of antagonistic quality."
Applying these rules of construction to the language of the statute last quoted it may be safely said that all of the terms used are either synonymous or bear such similar meanings that each shades indistinguishably into the other.. It hardly requires any resort to the lexicographers to understand the meaning of a donation, gift, grant, devise or bequest. The ordinary man on the street knows and understands their full import. The unlettered beggar who extends his beseeching palm to the passerby for an alm knows the full meaning of a gift or donation, even as does a child of kindergarten age experiencing the joy of giving at Christmas. Webster defines a donation as "an act of giving or bestowing; a grant;" and as used in the law as meaning "voluntary alienation of property; gratuity; transfer of property from one to another; gift." Hence there should be no contrariety of opinion as to their meaning as used in the Act.
To hold that those words have a meaning broad enough to include the purchase of property, or the assumption of the debt of the donor by the donee as a condition of the gift, donation or bequest, would be attributing to them a meaning which is entirely antagonistic to their common signification. Had the General Assembly intended to confer upon the State Board the authority to purchase, lease, or assume the debts outstanding against either the property itself or against the county board of education of walton

66
County or the Georgia Vocational and Trades School in order to acquire title thereto, words were at their command to express such an intent, and the fact that the Legislature instead used words. which express the antonymn manifest clearly that it was the object and purpose of the statute only to vest the Board with the authority to acquire said property without discharging any debt, or assuming any obligation with respect thereto; indeed as an outright gift or donation, with no monetary consideration passing from the donee to the donor.
Your letter does not dis.close the nature or amount of the
"outstanding indebtedness * * * connected with this institution,''
or by whom and to whom it is owed; nor do I have any facts or evidence before me indicating these things. It is perhaps highly pertinent to know whether the indebtedness referred to is one due by the county board of education of Walton County, or by the corporation, the Georgia Vocational and Trades School. If the indebtedness is that of the former, then the Constitution of our State would expressly forbid its assumption by the State Board of Education, either directly, or in connection with the transfer of this property to said Board. Article 7, Section 8, Paragraph 1 of our Constitution, plainly 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." I take it that the debt was not incurred for any of the purposes just stated which would make it a proper subject matter to be assumed by the State. If this be true, and if it be true that the debt is one which was incurred by the county board of education of walton County, it would be treated as a debt of the county of Walton within the meaning of our Constitution, because said County Board is the agency through which the county operates in carrying on its educational system.
Moreover, while this provision of the Constitution does not, in express. terms, forbid the assumption by the State of the debt of any individual or corporation, it would be so contrary to the spirit of that instrument to hold that an agency of the State such as the State Board of Education could assume the debt of either an individual or corporation, either directly or as a part of the con-

67
sideration for the acquirement of title to property, that public policy, if nothing else, would forbid such action. Certainly it would require a much broader power and authority than that now vested by statute in the State Board of Education for such a thing to be legally accomplished. The Constitution forbids the State to pledge or loan its credit to any individual company, corporation or association (Article 7, Section 5, Paragraph 1.) and it is my opinion that it would be doing violence to this prohibition to hold that a corporation, to whom as an original proposition the State of Georgia could not loan its credit could, after incurring an indebtedness on its own account saddle the same upon the State by any scheme or subterfuge involving the transfer of title to property either owned by the corporation or leased to the corporation by some political subdivision.
For the foregoing reasons I am of the very definite opinion that your Board has no authority to assume "any outstanding indebtedness that may be connected with this institution." In reaching this conclusion, I have not overlooked the general rule that in addition to powers expressly conferred upon your Board by law it has by implication such other powers as are necessary for the due and efficient exercise of those powers expressly granted, or such as may be fairly implied therefrom. See 46 Corpus Juris 1032, Section 287. This rule has no application in the matter under discussion in view of the plain and unequivocal language of the statute relating to the manner in which the Board may come into possession of this property. To imply from the words "donations, grants, gifts, devises and bequests" any authority of the Board to obligate the State to assume or discharge any obligation of a corporation in order to acquire title and possession of the property would be to so distort the meaning of these words as to take away from them all of their common sense meaning.

68
EDUCATION; VOCATIONAL-Whether textbooks and teachers for children can be furnished by the State for children at Scottish Rite Hospital.
June 24, 1942.
Hon. M. D. Collins, State Superintendent of Schools.
This will acknowledge yours of the 20th instant requesting advice "as to whether or not the State Department of Education can legally furnish teachers and textbooks to the children who are and will from time to time be at the Scottish Rite Hospital."
Answering the question first as it relates to the furnishing of textbooks, I refer you to Sections 32-710 and 32-716 of the Georgia Code Annotated, pocket supplement, which section provides:
"The State Board of Education is hereby authorized and directed to inaugurate and administer a system of free textbooks for the public schools of the State of Georgia. The State Board of Education shall have the authority to promulgate and enforce such rules and regulations as may be necessary for that purpose. The State Board of Education may, in its discretion, extend the provisions as it may adopt, to the Georgia Training School for Boys, the Georgia Training School for Girls, the Academy for the Blind, the School for the Deaf, and the other eleemosynary institutions operated by this State, where textbooks prescribed by the State Board of Education in conformity with this Chapter are used."
It will be noted that the power and authority of the State Board of Education to furnish free textbooks is limited to "the public schools of the State of Georgia" and to "the Georgia Training School for Boys., the Georgia Training School for Girls, the Academy for the Blind, the School for the Deaf, and any other eleemosynary institutions operated by this State." As I understand the facts, the Scottish Rite Hospital does not fall under the category of either. It is not a public school and neither is it an eleemosynary institution operated by the State. Accordingly, I am of the opinion that the State Board of Education cannot legally furnish free textbooks to the children who are patients of this most worthwhile institution. (Italics. supplied.)
The power of the State Board of Education to furnish teach-

69
ers is similarly limited to the furnishing of such teachers "to the public schools of the State." (See Section 32-614 Georgia Code Annotated.) Moreover, the Scottish Rite Hospital could not be classified as a "local unit of administration" within the meaning of the school laws of this State, to which the State Department of Education has the authority to disburse school funds, because the Scottish Rite Hospital is not under the jurisdiction of either the County Board of Education of any county or the Board of Education of any independent school district. (See Section 32-604 Georgia Code Annotated.)
I have serious doubt that the Vocational Rehabilitation law as set out in Chapter 32-23 of the Code is applicable to children. It applies to the vocational rehabilitation "of persons disabled in industry, or otherwise." But I am not certain in that its provisions have ever been construed by the federal board charged with the administration of the congressional appropriations to include children who have physical disabilities. You might communicate with the federal authorities and have them pass upon this matter. Unless funds are available from this source to pay the salaries of teachers of these children in the Scottish Rite Hospital, I know of no state funds out of which such teachers could be paid.

EDUCATION; VOCATIONAL-Separation of schools for

white and colored races.

Hon. M. D. Collins, State Superintendent of Schools.

June 16, 1942.

I understand that the problem of finding adequate facilities for use in training negroes in vocational work preparatory to absorption in war industry is a matter of concern to the State

Department of Education.

The question arises as to whether public school buildings used

for the training of white people for defense industries may also

be used for the training of negroes and whether or not equipment

used for negro vocational training may be placed in white schools,

the white schools, at the time, not being used by white trainees.

70
Article 8, Section 1, Paragraph 1 of the Constitution of Georgia provides in part as follows:
"* * * separate schools shall be provided for the white
and colored races."
It is my opinion that this clear cut constitutional provision prohibits the use of white schools for the training of negroes. It effectively prohibits the co-mingling of the races in the schools. of Georgia and forestalls any attempt to use white schools for negroes.
If additional training facilities are required in the war program for negroes, separate buildings must be provided for this purpose so that the letter and spirit of the Constitution of Georgia may be observed. In this State, under the Constitution, it is not legally possible to use public school facilities provided for the education of the white race for the education of negroes.
I understand that the Department of Education is interested in what constitutes "equitable opportunities" for the training of negroes in defense and war activities. In view of the fundamental law of this State as found in our Constitution, this term could not legally be construed as embracing the training of negroes in the public school facilities provided for the training of white people. Equitable opportunities would, after all, be a matter of determination based largely upon the demand in Georgia for negro war workers. Equitable opportunities in a variable term, impossible of abstract definition. What constitutes equitable opportunities under one set of facts might not under another.
So long as your Department vocationally trains negroes for war industry separately from white trainees in proportion to the actual needs of industry for the respective groups of workers, I think you will comply with the laws of this State.

71
ELECTIONS; JUNE GENERAL-Qualifications of voters.
April 5, 1941.
Ron. C. H. Kittrell, Chairman, Board of Registrars, Dublin, Georgia.
Yours of recent date requesting an opinion as to the qualifications of voters in the election to be held on June 3rd, 1941, received.
Section I of H. B. 124 approved February 24th, 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 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."
Tuesday after the first Monday in June-in 1941 is June 3rd.
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 3rd, 1941.
Section I of Article 2 of the Constitution of this 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 election, (2) in the county in which

72
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 3rd, 1941, comes within six months after the poll taxes for 1940 were due, the Constitution does not require that the poll taxes for 1940 be paid six months before the election of June 3rd, 1941, 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 1st, 1940, and men who became 21 years of age after the same date are not liable for 1940 poll taxes.
In the case of,
Calloway v. Tunnell Hill School District, 51 Ga. App. 101,
Judge Jenkins, now 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 leas.t 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." (Italics 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

73
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 3rd, 1940---may, if possessing other qualifications, vote in the election of June 3rd, 1941.
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 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 appointme~t 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

74
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 lis.t shall vote or be allowed to vote at any other election or primary except as hereafter provided in this Title."
In the case of Calloway v. Tunnell Hill School District, supra, the election was held on April 28th, 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 3rd, 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 3rd, 1941,
( 1) He must have been registered on or before December 3rd, 1940, (Code 34-106);
(2) He must have paid all poll taxes due for 1939, and prior years, on or before December 3rd, 1940, ( Const. Art. II, Section 1, Par. 3) ;
(3) He must have paid 1940 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 Courts. (Code 34-401 ; Art. II, Section 1, Par. 3.)

75

ELECTIONS-Qualification of voters.

April 6, 1942.

QuALIFICATION oF VoTERS IN CouNTY PRIMARY AND
GENERAL ELECTIONS
This unofficial information is furnished merely in a desire to be helpful.
1. Poll taxes are levied as of January 1st of each year upon each inhabitant of this State (except blind persons and females who are not registered) between the ages of twenty-one and sixty, 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 unless they become twenty-one on January 1st. They are liable for poll taxes for each succeeding year until they become sixty, including the year in which they become sixty, unless they become sixty years of age on January 1st, and so long as they remain inhabitants of the State. (Code 92-108.) A male registering for the first time must pay all past due poll taxes for each year since he became twenty-one, provided he is not blind. He would not have to pay for any year or years when he was not an inhabitant of the State.

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, including the year in which they become sixty, unless they become sixty on January 1st. (Code 92-108.)
4. Females having once registered cannot now have their names stricken from the registration list, the General Tax Act of 1923 once authorizing same having been s.uperseded by the General Tax Act of 1927. Once registered, they are subject to the payment of poll taxes in the same manner as males.
5. Before offering to vote in any county or other primary election held after December 19, 1941, to nominate candidates for the general election in 1942, all past due poll taxes, if any, including poll taxes for 1941, must have been paid. In addition, the

76
person offering to vote must have been duly registered as provided by law and his or her name must appear on the registered 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.)
6. In any primary held before the registrars have completed their work of preparing the list of qualified voters to be used in the general election of November 3, 1942, 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 list used in the last general election that have qualified to vote since the last general election, and when a copy of the same has been furnished to the election managers, such persons may then vote.
7. Generally speaking, any citizen, male or female, who has or will have resided in Georgia twelve months and in the county where he offers to vote six months before November 3, 1942, and who will be 21 years of age on or before November 3, 1942, may register and pay all past due poll taxes on or before May 2, 1942, and thu~ qualify as a voter in the general election of November 3, 1942. Having established one's qualifications as a voter in said general election, he or she is entitled to vote in any primary election (subject to the rules and regulations of the party holding the primary) for the nomination of candidates to be elected in the general election.
8. Saturday, May 2, 1942, is. the last day for paying past due poll taxes for 1941 and prior years, registering and qualifying to vote in any primary h~ld after May 2, 1942, and in the general election of 1942. No one can pay poll taxes, register or otherwise qualify for such elections after May 2, 1942. (Article 2, Section 1, Paragraph 3, State Constitution.) Of course, poll taxes can be paid after May 2, 1942, but not in time to meet requirements of the Constitution that they be paid six months before general election.

77
9. Under the law, persons who are otherwise qualified and who desire to vote in county primary elections held in this State prior to May 2, 1942, may do so by paying any past due poll tax, including poll tax for the year 1941, 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 clo,sing 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.
10. Where a person, after qualifying as a voter in one militia district or county, moves to another district or county and desires to vote in elections held therein, he should make application to the Board of Registrars of the County into which he has removed and submit any proof required by them that he will be qualified to vote in such elections, whereupon these Registrars would be authorized to place his name on the list of registered voters and such person could then vote in such elections. (Code Section 34-804.)
11. An elector who has qualified and signed the permanent voters' book may not thereafter be required to register or further qualify, except as may be required by the board of registrars when the voter's qualifications are challenged. (Code Section 34-115; Chapter 34-6.) In Fulton County a new registration list is being prepared under the requirements of an Act of 1941 applicable only to said county.
The foregoing follows the views expressed by former Attorneys General of this State, and although not official, is based upon the language of our Constitution, statutes and court decisions on the same subject-matter.

78

ELECTIONS; VOTING BY MAIL.

May 1942.

INSTRUCTIONs oN VoTING BY MAIL
The Act of 1924, Section 34-3301, Code of Georgia of 1933 provides that any voter when required by his regular business and habitual duties to be absent from his regular place of voting, and then only, may vote by absentee ballot. He must follow the fol. lowing procedure:
First: Apply by letter sent by registered mail to the Registrar of his county for a ballot. This letter must be registered and must be sent to the Registrar not less than ten days nor more than sixty days prior to the Primary or General Election, and the applicant must enclose with his application sufficient postage for the return of the blank ballot to him. (Section 34-3302.)
Second: Upon receipt of the application, the Registrar shall satisfy himself that the applicant is duly qualified to vote in the county and shall enroll the name and address of the applicant, if found eligible, in a book to be provided for the purpose. (Section 34-3305.)

Third: At least 9 days prior to the date of holding the election the Registrar shall then forward to the applicant if found eligible, a certificate in the following form, to-wit:

"This is to certify that. ............................ is a

.

(Ward)

qualified voter of the . . . . . . . . . . . . . . . . . . . . . . . . . (District)

of ................... (City) ................. County,

State of Georgia, and entitled to vote in the election to be

held on ......................... 19... .

"Application for ballot received . . . . . . . . . . . . . . . . . . . . . . . . . 19... , from ........................... (post office) and mailed to ............................... (post office) as requested on .................................... 19 .. .

"A copy of this certificate is filed with the letter of application.

No........ .

(Signed) ......... : ............... . Registrar

79
"(Detach the coupon and return.) Acts 1924, Sec. 34-3306, pp. 186, 188."
To this certificate shall be attached a detachable coupon in the following form, to-wit:
"Name ............................... Color ......... . Height. .............. Age ......... Color o.f hair ....... . Color of eyes ............. Weight. .......... (Estimated) Birthplace given by voter ............................. . Occupation ..................... State and county where voter claimed to have las.t voted . . . . . . . . . . . . . . . . . . . . . . . . . County ................... State.................. .
"To the best of my knowledge, the above information is correct and the applicant has complied with the requirements of the law as above provided. I have no knowledge whatever of the marking, erasures or intent of the ballot enclosed.
(Signed) ......................... . Postmaster
" (Post Office Stamp.)
" (or other person designated in Section four of this Act (Section 12 (6) of this Code).)" (Section 34-3307.)
The Registrar shall also forward with the certificate (a) an envelope containing the folded ballot, sealed and marked "Ballot within;" (b) an envelope for resealing the marked ballot, together with a blank voucher in the following form, to-wit:
"This. is to certify that the enclosed ballot was received by me as per my application to the Registrar of ........... . County, State of Georgia. The envelope marked 'ballot within' was opened by me in the presence of ................. . postmaster, consul or commissioned officer, of ............. , marked while in the office, without assistance or knowledge on the part of any one as to manner in which same was prepared, and then and there sealed as provided by law.
Signed ................................ . "Teste: ..................... Date ..................... 19 .. .
"Postmaster (or other person designated in Section 4 of this Act (Section 120 f).) Acts 1924, pp. 186, 189." (Section 341-3308.)

80
(c) a properly addressed envelope for the return of said ballot; and (d) a printed slip giving full instructions regarding the manner of marking the ballot in order that it may be counted, how prepared and how returned, which printed s.lip shall be provided by the Ordinary or Executive Committee. (Section 34-3305.)
Fourth: Upon receipt of these documents the applicant shall not open the sealed envelope marked "Ballot within" except in the presence of the Postmaster at the address where he receives his mail, and he shall then mark and refold the ballot without assistance and without making known the manner of marking same, and then and there place the ballot in the envelope provided for that purpose in the presence of the Postmaster. (Section 34-3303.)
Fifth: The Postmaster or his assistant, or in the case of their refusal to act, any person qualified by the laws of Georgia to take acknowledgments of deeds, shall fill out and sign the coupon attached to the certificate of registration and enclose the coupon with the ballot in the sealed envelope provided for that purpose. (Section 34-3303.) In case the applicant is located in a foreign country, the procedure is taken before an American Consul; and if the applicant is enlisted in the Army or Navy, before his commanding officer. (Section 34-3304.)
Sixth: The applicant after having the ballot marked and attested as s.tated reseals the same in the special envelope provided for that purpose which must be done in the presence of the postmaster, or his assistant and then place this envelope containing the ballot and the voucher in another envelope directed to the Registrar, which is then mailed. (Section 34-3307.)
Seventh: Upon receipt of the returned ballot, the Registrar shall make an entry on the Book referred to in the following language:
"Deposited in sealed box by me on ................. , 19... " The Registrar shall then add his. signature and shall deposit the envelope containing the ballot in a sealed box to be provided for that purpose where it shall remain until the day of the election. The coupon which is returned to the Registrar along with the

81
sealed envelope containing the ballot is filed with the original letter of application. The return sealed envelope must _show the series number and letter of the ballot deposited therein. (Section 34-3311.)
Eighth: On the day of the election, the Registrar shall deliver the box containing these ballots to the managers of the election with a triplicate list thereof, all of which shall be in a sealed box. They shall also deliver to the managers the pad or pads with stubs showing the series number and letter of the ballots furnished and no ballot shall be counted unless the series letter and number on the stub shall correspond with the series letter and number on the ballot contained in the envelope returned by the voter. (Section 34-3312.)
Ninth: At the close of the election this box is opened by the managers and the ballots deposited in the regular ballot box. As each envelope is removed from the sealed box, the name of the voter is called and checked as if he were present, voting in person. (Section 34-3313.)
Tenth: When all the ballots have been accounted for and either voted or rejected the empty envelopes are returned to the original box which is again sealed with the letters of applications and coupons of the rejected envelopes, if any, on which shall be written the cause of rejection, signed by a majority of the managers. The box shall then be resealed and not opened within ninety days except by order of the Court. (Section 34-3314.)
In all county elections, the county executive committee, or city executive committee, as the case may be, or other particular authority, shall provide to the Registrars ballot forms for absentee voters, which shall be printed and prepared in pads with the series number different from that used for voters who vote in person, each ballot having a stub containing the series letter and number of the ballot. These ballot forms are to be furnished to the Registrars as required.
What is stated gives you the substantial content of the Act of 1924, codified as Chapter 34-33 of the Code of Georgia of 1933, as amended by the Act of 1941 (Ga. Laws 1941, p. 365).

82

ELECTIONS- SPECIAL ELECTIONS- Qualifications of voters.

Hon. K. W. Liles, Jr., Tax Collector, Camden County, White Oak, Georgia.

March 26, 1942.

This will acknowledge yours of the 23rd instant stating that you are going to have a special election in Camden County around the first day in May of this year, and requesting information as to whether it will be necessary for a voter in this election, in order to be qualified, to be registered and to have paid all poll taxes prior to 1941 six months before this. special election.

Our Supreme Court in the case of Sims et al. vs. Kennedy et al., 184 Ga. 822, in construing the general law relating to special elections (see Code Sections 34-406 and 34-407) held that a person may, before the call for a special election or within five days after the call, pay all past due poll taxes and register and become a qualified voter in the special election, provided such payment and registration are s.ix months before the general election.

In the case of McGill vs. Simmons, 172 Ga. 127, it was held, in effect, that the requirement of the Constitution as to payment of poll taxes sixmonths before the election at which the taxpayer offers to vote applies only to the general election, and that where such requirement is met the fact that the payment is less than s.ix months before a special election at which the taxpayer offers to vote will not prevent him from voting therein, but, that, if otherwise qualified, he will be entitled to vote in such special election.

83
FOOD AND DRUGS; CHIEF DRUG INSPECTOR-Dru~ addicts cannot be committed to Milledgeville Sanitarium or penal institutions of State solely because of such addiction.
July 9, 1941.
Hon. M. M. Yearty, Chief Drug Inspector, Georgia State Board of Pharmacy.
This will acknowledge yours of the 19th ultimo enclosing copy of the letter of Hon. A. W. Graves, of Cochran, Georgia, to you under date of June 14th, 1941, relating to the commitment of drug addicts under Section 17 of the Uniform Narcotics Law of 1935 (Ga. Laws 1935, p. 418), to some public institution ~uch as the Milledgeville State Hospital for the Insane or the penal institution at Reidsville.
Without reciting the provisions of Section 17 of the Act above referred to, with which I note you and Mr. Graves are familiar, I am of the very definite opinion that the Milledgeville State Hospital has no authority to receive a person declared to be an habitual user of habit-forming drugs in accordance with the procedure outlined in said Section. The statutes relating to the Milledgeville State Hospital, as codified in Chapter 35-2 of the Code of 1933, restricts the admission of inmates to said institution "to lunatics, epileptics, idiots, and demented inebriates" and unless a drug addict also falls within one of these classifications and is duly committed to the institution as such in the manner prescribed by the statutes relevant thereto, then the authorities at the Milledgeville Hospital have no power or duty to accept such a person as an inmate.
Moreover, I am of the opinion that such a drug addict could not be sentenced or committed to a penal institution as the language of Sectio;1 17 itself provides that the institution to which such an addict shall be committed shall be "some public hospital or institution under medical jurisdiction, other than a penal institution, etc." In the first place, the Tattnall Prison is a penal institution, and the Act prohibits a person declared to be a drug addict from being committed thereto; and in the second place, even if it were not a penal institution, it is not an institution which is

84
"under medical jurisdiction." Frankly, I know of no institution in this State that the Commissioner of Agriculture might designate which would meet the qualifications as described in the Act.

FOOD AND DRUGS-Chief Drug Inspector has power to con-

demn, how.

Hon. M. M. Yearty, Chief Drug Inspector.

August 1, 1941.

This will acknowledge yours of the 30th ultimo requesting an

opinion as to whether the Chief Drug Inspector or his Assistants

have the authority to make cases or destroy medicines that grocery

stores and soda stores are handling in violation of the law before

first reporting same to the Board of Pharmacy or the Joint Secretary.

Code Section 42-114 prescribes the procedure which shall be followed before any adulteration or misbranded drug or liquor may be sold or destroyed. This Section provides:

"Any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this Title shall be liable to be proceeded against in any court within the county where the same is found, and seized for confiscation by a process of libel for condemnation. If such article shall be condemned as being adulterated or misbranded, or of a poisonous. or deleterious character, within the meaning of this Title, the same shall be disposed of by destruction or sale, as the court may direct, and the proceeds thereof, if sold, less the legal costs and charges, shall be paid into the treasury of the State, but such goods shall not be sold in any jurisdiction contrary to the provisions of this Title or the laws of that jurisdiction."
Accordingly I am of the opinion that neither you or any of
your Assistants would have the authority to destroy or sell any
adulterated or misbranded drugs or liquors seized without first
having filed the proper libel action against said products and
having a judgment of condemnation entered thereon.

I think this procedure of condemnation is separate and distinct from the criminal procedure outlined in Code Section 42-103 and 42-113, as the libel action is against the product itself, whereas the procedure outlined in Code Sections 42-103 and 42-113

85
against the person who violates any of the provisions of the Drug Act. Of course, a certified copy of an adjudication by the tribunal consisting of the Georgia State Board of Pharmacy and the Attorney General, acting under the procedure outlined in 42-113 that certain drugs or liquors were misbranded or adulterated would be admissible as evidence in the trial or a libel suit against the same products, instituted under the authoritY. of Code Section 42-114.
In no event, however, would the Chief Drug Inspector or any of his Assistants have the authority, in the absence of a judgment or condemnation, to destroy any particular drugs or liquors which had not first been legally condemned after the fact was established that s.uch products were misbranded or adulterated.

FOOD AND DRUGS; CHIEF DRUG INSPECTOR-Osteopath cannot lawfully prescribe barbiturics.

Hon. M. M. Yearty, Chief Drug Inspector.

October 2, 1941.

This will acknowledge receipt of your letter of September 17th in which you ask the following question:

"Please give me your opinion as to the right an osteopath has in regards to prescribing barbiturics. Can they legally prescribe barbiturics and their derivatives, also proprietary drugs?"

The Act approved March 27, 1941, (Ga. Laws 1941, pages 352-358), which authorized licensed osteopathic physicians to purchase, prescribe and/or use only for the alleviation of pain certain narcotic drugs, is limited by its express terms to "those narcotic drugs or their derivatives, the sale or dispensing of which is regulated by the Federal Act known as 'The Harrison Narcotic Act,' as amended, said Act being set out in 26 U. S. C. A. Int. Rev. Code, Section 3220 et seq."

26 U. S. C. A., Section 322o provides in part:

"On or before July 1 of each year, every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, or gives away opium or cocoa leaves, or any com-

86

pound, manufacture, sale, derivative, or preparation thereof, shall pay the special taxes hereinafter provided."
By an amendment of August 2, 1937, (SO Stat. 551, 552), the sale or dispensing of marihuana was also regulated. See, 26 U. S. C. A., Sec. 3230 et seq.

Barbituric acid is defined by the Encyclopredia Brittanica as a "white, crystalline, organic chemical compound (C4 H4 N2 03, 2 H20), prepared by condensing di-ethyl malonate and urea, and is soluble in water, alcohol and ether." It is pointed out in the same work that the derivatives of barbituric acid are used as drugs and are prepared by using barbitut'ic acid as. a starting point.

It does not appear therefore, that barbiturics and their derivatives are regulated by the Federal Act known as "The Harrison Narcotic Act" as amended. Thus, an osteopath would derive no right to purchase, prescribe, or use barbiturics or their derivatives from the 1941 Act.

The Dangerous Drug Act of 1939, (Ga. Laws 1939, pages 288-290) provides in part:

"It shall be unlawful for any person, firm, corporation,

or association to sell, give away, barter, exchange, distribute

or possess barbituric

*in*th*e

State of Georgia * * * barbital, acid diethyl-
or any salts, derivatives or compound of the

foregoing substances, or any preparation or compound con-

taining any of the foregoing substances, of their salts, deriva-

tives of compound or any trademarked or copyrighted

preparation or compound registered in the United States

Patent Office containing more than four (4) grains to the

avoirdupois or fluid ou{1ce of the above substances, except

on a prescription of a duly licensed physician as defined by

this Act and such prescription shall be compounded only by

a registered pharmacist in accordance with the laws of this

State. The provisions of this Act shall not apply to the sale

at wholesale by recognized drug jobbers or wholesalers and

drug manufacturers to pharmacists or drug stores or to physi- .

cians qualified to practice their profession according to the

law, nor to the sale by pharmacists. in drug stores to one

another."

Section 2 of the Dangerous Drug Act provides:

"As provided by this Act a 'physician' means a person authorized by the laws of this ?tate to practice medicine and

87
any other person authorized by law to treat sick and injured human beings and animals in this State and to use, mix, prepare, dispense and administer drugs in connection with such treatment."
It will be noted in the first instance that the purpose of the Dangerous Drug Act was to prohibit the sale, giving away, bartering, exchanging, distributing or possessing the drugs specified in that Act. It was not the purpose of the Act to vest the right to prescribe, use or possess the specified drugs in persons who were not authorized to do so under the existing law.
The object of an interpretation of law is to reach the true intent and meaning of the law-making authority.
Board of Tax Assessors of Decatur County vs. Catledge 173 Ga. 656.
At the time of the passage of the Dangerous Drug Act of 1939, the Act of 1941 which authorized licensed osteopathic physicians to purchase, prescribe and/or use certain narcotic drugs was not in existence. There was no Act of the General Assembly of this State specifically authorizing osteopaths to purchase, prescribe or use any drugs. It cannot reasonably be said that the Act of 1941 which auhorized osteopaths to purchase, prescribe and/or use the drugs specified in that Act now gives them the rights vested in physicians under the 1939 Dangerous Drug Act. The definition of a "physician" under the Dangerous Drug Act is. in general terms. The 1941 Act is specific in limiting osteopaths to the purchase, prescribing and/or using of the drugs specified in that Act. When the terms of a general law applicable to numerous classes of cases conflict with those of a law applicable only to a particular class or classes, the former must yield.
Sutton vs. Hancock 118 Ga. 436.
Since the 1941 Act expressly specifies the drugs which an osteopath may purchase, pres.cribe and/or use, this expression is exclusive under the well settled rule of construction that expressio unius est exclusio alterius.
Crawford vs. Glasgow 86 Ga. 358.
It is apparent therefore, that osteopaths derive no right to prescribe barbiturics or their derivatives from the Dangerous Drug Act of 1939.

88
You also inquire as to the right of an osteopath to prescribe proprietary drugs.
Under the medical practice act of this State which is codified as Chapter 84-9 of the Code of Georgia of 1933, the practice of medicine is defined, and the practice of medicine without a license is prohibited, except in certain well defined instances and - under certain conditions. Section 84-906 of this. chapter clearly exempts "osteopaths, not prescribing medicines or administering drugs" from the requirements of the statute. So, when an osteopath does prescribe medicines or administer drugs he is no longer exempt from the requirements of Chapter 84-9, and in order to administer drugs. or prescribe medicines legally, he must have a license duly issued by the State Board of Medical Examiners. The only exception to this rule is the purchase, prescribing or administering of those dsugs specifically dealt with in the 1941 Act.
Aside from this consideration, we find that the statutes with reference to the licensing of osteopaths as codified in Chapter 84-12, restrict the licensee under said statutes to the practice of osteopathy "as taught and practiced in the legally incorporated and reputable colleges of osteopathy as provided for in this Chapter." This statute was enacted in 1909, and must be construed as authorizing the p~actice of the system of osteopathy and "as taught and practiced in the legally incorporated and reputable colleges of osteopathy" at the time the statute was passed.
State ex rel Beck vs. Gleason, 148 Kan. 1, 79 Pac. 2nd 911.
Under this construction, the use of drugs by osteopaths is prohibited (except those drugs specifically dealth with in the 1941 Act) for the reason that at that time instruction was not given in materia medica, and the science of osteopathy was. regarded and practiced as a "drugless art," adherents of said profession being opposed to the use of drugs, at the same time proclaming the superiority of a treatment consisting of treatment by manipulation applied to various nerve centers, rubbing, pulling, and kneading parts of the body, flexing and manipulating the limbs, and the mechanical readjustment of any bones, muscles,

89
or ligaments not in the normal position, with a view to removing the cause of the disorder and aiding the restorative force of nature in cases where the trouble originated in misplacement of parts, irregular nerve action, or defective circulation. See, Black's Law Dictionary, 3rd Edition, page 1304. In this connection, it should be noted also that the statute of this State regulating the practice of osteopathy does not prescribe materia medica as one of the subjects upon which the State Board of Osteopathic Examiners must examine applicants for license.
It is my opinion, therefore, that a person who is licensed in this State to practice osteopathy alone and who holds no license from the Georgia State Board of Medical Examiners to practice medicine, may not legally prescribe barbiturics and their derivatives or any proprietary drugs which are not specifically dealt with in the 1941 Act.
FOOD AND DRUGS; DAIRIES AND DAIRY PRODUCTS-Whether license must be obtained and price observed for dairy products at military reservation in terms of Milk Control Act.
June 30, 1941. Ron. C. G. Duncan, Director Milk Control Board.
This will acknowledge receipt of your letter of June 24th in which you state:
"Will you please give me a ruling on the following:
"Under Section 9 of the Milk Control Act approved March 30th, 1937, each producer, producer-distributor, store or distributor selling milk in any milk-shed must first obtain a license from the Milk Control Board. We are, therefore, asking if a distributor or a producer-distributor selling milk to Camp Wheeler must not first obtain a license from the Milk Control Board before doing so, as Camp Wheeler is located within the Macon MilkShed. The Macon Milk-Shed extends ten miles air-line radius of the Bibb County Courthouse and Camp Wheeler is less than seven miles air-line from that point.
"We have taken the position that a distributor must pay the

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Milk Control Board prices to the farmer for milk going to these Camps, but have made no attempt to make the Federal Government pay Milk Control Board prices as they are required by law to buy upon bids, but we do feel that anyone selling milk in that Milk-Shed must first obtain a license from the Milk Control Board in order that we may control the price to the farmer."
Section 9 of the Act approved March 30, 1937 (Georgia Laws 1937, pages 247 to 264) provides:
"In any milk shed where the provisions of this Act once apply, it shall be unlawful for any producer, producer~distrib utor, store, or distributor to produce, sell, buy, handle, or distribute milk unless such person be duly licensed as provided by this Act...."
Section 2 of the Act contains the following definitions :
" 'Distributor' means any person selling milk who is not a producer, producer-distributor, or store as defined herein.
" 'Producer' means any person producing milk for sale only to one or more distributors or producer-distributors.
"'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 .construed to apply to persons producing and selling all milk so produced on a non-commercial basis or to one or more processors only.
" '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 consumers), pasteurizing, or otherwise processing the same. Whenever one person shall operate more than one 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."
The fees charged for the licenses required by Section 8 of the Act are fixed by Section 11 as follows:
"All persons required by this Act to be licensed shall pay

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such uniform license fees as may be fixed by the Board as follows: Each s.tore 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 res.pect to any milk sold and consumed within territory which is not within a milk shed to which this Act may be. applicable."
Section 19(a) authorizes the Board to determine after public hearing what prices for milk in a milk shed within which the Act is applicable will adequately protect the milk industry and insure a sufficient quantity of pure and wholesome milk to adults and minors, having special regard to the health and welfare of children, and be most in the public interest. In determining what is a reasonable return to the producer the Board must take into consideration the necessary cost incurred in maintaining dairy animals, in a healthy condition, paying wages and supplying working conditions to employees sufficient for their subsistence at levels generally obtained and for the safe-guarding of their health in defraying the ordinary fixed charges and operating expenses incidental to the ownership, control and management of a herd of average numerical size, including a reasonable amount representing annual rent of land and equipment necessarily utilized therein and in addition to afford such producers a reasonable return in excess of their cost of production.
When the question of the constitutionality of the Georgia Milk Control Act was raised in the Supreme Court of this State, that Court after quoting the legislative determination and policy apppearing in Section 1 of the Act said:
"It is apparent on its face that the Act is not one levying a tax, but is a health measure within the police power, and is

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therefore not violative of Article 1, Section 1, Paragraph 2, providing that all taxation shall be uniform upon the same class of subjects."
Gibbs v. Milk Control Board of Georgia, 185 Ga. 844. In Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358,
it was held:
"The milk control law does not by its provisions levy any tax upon dealers, producers, or producer-distributors, but exacts merely a license fee to be used in aid of the expenses of administration of the Act as a health measure, and therefore it is
not subject to attack that it is violative of Article 7, Section 2,
Paragraph 1, of the Constitution (Code Section 2-5001), declaring that all taxation shall be uniform upon the same class of subjects; nor is such license fee illegal."
Since the license fee required by the provisions of the Georgia Milk Control Act is not a tax, the imposition of such license fee upon a producer-distributor or distributor selling milk to Camp Wheeler does not come within the rule announced by a closely divided bench in the case of
Panhandle Oil Cocpany v. Mississippi, 72 L. Ed. 517, to the effect that a State may not impose a tax measured by the quantity sold upon the privilege of one of its citizens of selling gasoline to the Federal Government for use of its coast guard fleet or a veteran's hospital which the United States is empowered by the Constitution to maintain and operate.
Since the Georgia Milk Control Act is a health measure based upon the police powers of the State Government, the question presented is whether its application to a distributor or producer-distributor selling milk to Camp Wheeler will directly interfere with or burden the United States, its officers or agents, in the performance of their proper governmental functions.
It will be noted in the first instance that the producer or producer-distributor is not an officer or employee of the United States Government but is at most the holder of a contract to deliver milk to the Camp. In the case of

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Buckstajj Bath House Company v. McKinley, 84 L. Ed. 322,
the Supreme Court of the United States followed the earlier case of Fidelity and D. Company v. Pennsylvania, 60 L. Ed. 664, in holding:
"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."
In the case of
Johnson v. Maryland, 65 L. Ed. 126,
it was 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 v. Hart, Pet. C. C. 390, Fed. Cas.
No. 15,316; 5 Ops. Atty. Gen. 554. 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. Com. v. Closson, 229 Mass. 329, L. R. A. 1918 C, 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."
The producer-distributor and distributor not being instrumentalities of the United States Government by reason of a contract to provde Camp Wheeler with milk, the regulation of such producer-distributor or distributor under the police power of the State, does not amount to a direct interference with the United States Government even though it might be indirectly reflected by an increase in the price at which the United States Government can obtain milk. In the case of
James Stewart and Company v. Sadrakttla, 84 L. Ed.. 596,
the question presented was whether the provisions. of a State Labor law requiring contractors constructing buildings to board over all open steel tiers for the protection of their employees

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continued to operate in territory over which the United States had acquired exclusive jurisdiction and were applicable to a contractor constructing a post office therein. In that case the court said :
"Finally the point is made that a provision requiring boarding over of open s.teel tiers is a direct interference with the government. This is said to follow from the fact that the contract for the construction of the post office is an instrumentality of the federal government. As a corollary to this argument, error is assigned to the refusal of the trial court to admit iri evidence a clause of the contract between the United States and the appellant reading, 'State or Municipal Building Regulations do not apply to work inside the Government's lot. lines.' While, of cours.e, in a sense the contract is the means by which the United States secures the construction of its post office, certainly the contractor in this independent operation does not share any governmental immunity."
And again,
"It is true that it is possible that the safety requirements of boarding over the steel tiers may slightly increase the cost of construction to the government, but such an increase is not significant in the determination of the applicability of the New York .statute. In answer to the argument that a similar increased cost from taxation would 'make it difficult or impossible' for the government to obtain the service it needs, we said in James v. Dravo Contracting Company that such a contention ignores the power of Congress to protect the performance of the functions of the National Government and to prevent interference therewith through any attempted state action.' Such a safety requirement is akin to the safety provisions of Maryland law which in Baltimore & A. R. Co. v. Lichtenberg were held applicable to trucks of an independent contractor transporting government employees under a contract with the United States."
I have not overlooked that language contained in Section 11 of the Georgia Milk Control law \Vhich reads:
"Provided that it is the intention of this section that no fee shall be required with respect to any milk sold and consumed

95

within territory which is not within a milk shed to which this Act may be applicable."

The Georgia Milk Control law had become applicable in

the Macon Milk Shed area before the property upon which Camp

Wheeler is now located was acquired by the United States Gov-

ernment and jurisdiction over such property was ceded to the

United States by the State of Georgia. (See Code Sections 15-

301, et seq.)



Under the cession provision of the Georgia Code (Sections 15-301 et seq.) exclusive jurisdiction is ceded to the United States for all purposes, "except service upon such lands of all civil and criminal process of the courts of this State; ... 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...."

In the James Stewart and Company case, supra, it was pointed out that the United States had acquired the particular parcel of land upon which the contractor was erecting the post office and the court assumed that Federal sovereignty was complete through consent by the state and exclusive jurisdiction had already vested in the United States. The court said:

"Does the acceptance of sovereignty by the United States have the effect of displacing this subsection of the New York Labor Law? We think it did not. The subsection continues as a part of the laws of the federal territory.

"It is now settled that the jurisdiction acquired from a state by the United States whether by consent to the purchase or by cession may be qualified in accordance with agreements reached by the respective governments. The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however shall be left without a developed legal system for private rights. In Chicago, R. I. & P. R. Co. v. McGlinn, 114 US 542, 29 L. ed. 270, 5 S. Ct. 1005, a

96
Kansas statute relating to recovery against a railroad for the injury to livestock on its right of way existed at the time of the cession to the United States of exclusive jurisdiction over Fort Leavenworth Military Reservation. It was held that the statute was carried over into the law covering the Reservation.... The Congress has recognized in certain instances the desirability of such similarity between the municipal laws of the state and those of the federal parcel. Since only the law in effect at the time of the transfer of jurisdiction continues in force, future statutes of the state are not a part of the body of laws in the ceded area. Congressional action is necessary to keep it current."
Thus milk sold by a distributor or producer-distributor to Camp Wheeler, which is located in the Macon Milk Shed area, should not be construed as "milk sold and consumed within territory which is not within a milk shed" to which the Milk Control Act is applicable.
It is my opinion, therefore, that a distributor or producerdistributor in the Macon Milk Shed engaged in selling milk to Camp Wheeler must secure the license required by Section 9 of the Georgia Milk Control Act and must pay to the producer or producer-distributor from whom he acquires such milk the prices fixed by the Milk Control Board under the authority of Section 19 of the Act. I do not believe, however, that the Board can compel the Federal Government or any officer or agent thereof to pay the Milk Control Board prices to the distributor or producer-distributor for milk used at Camp Wheeler since would amount to a direct interference with an officer or agent of the United States Government in the performance of the duties imposed upon him by his sovereign.

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FOOD AND DRUGS; DAIRIES AND DAIRY PRODUCTS-Authority of Commissioner of Agriculture over sanitary control of dairies.
April 30, 1942.
Hon. Tom Linder, Commissioner of Agriculture, Department of Agriculture.
This will acknowledge yours of the 28th instant as follows:
" 'What is the power and authority of the Commissioner of Agriculture relating to the supervision and sanitary control of Dairies and Dairy Products. in the State of Georgia; relative to municipal ordinances of sanitary inspection and supervision of dairies as conflicting with the power and authority of the Commissioner of Agriculture?' "
Without going into too much detail, the law of this State with reference to the powers, duties and authority of the Commissioner of Agriculture with reference to the supervision and control over the sanitary conditions of dairies., milk depots, milk and its by-products, is set out in Chapters 42-4 and 42-5 of the Code of Georgia of 1933. Generally speaking, under these statutes the Commissioner of Agriculture is given supervision and control over the sanitary conditions of dairies, milk depots., milk and its by-products, and in order to fully effectuate the purpose of the law and to protect the public health of the citizens of this State, the Commissioner is given the authority to promulgate and enforce rules and regulations governing these matters. (Code Section 42-401). In other words, a part of the "powers or authority of the Commissioner of Agriculture" is. the authority to promulgate rules and regulations governing the sanitary conditions of dairies, milk depots, milk and its byproducts.
What has just been said is significant and highly material to a consideration of the full purport and effect of Code Section 42-406, which provides:
"Nothing in this law shall prevent the governing authority of any municipal corporation from enacting ordinances providing for the inspection of meat markets, meats, and meat food products, dairies, and dairy products sold within its limits, and to affix penalties for violation thereof;

98
but, no such ordinances shall conflict with any power or authority of the Commissioner of Agriculture or his subordinates.." Keeping in mind that a part of the "power or authority of the Commissioner of Agriculture" is that of making rules and regulations governing the sanitary condition of dairies, milk de-' pots, milk and its by-products, I am of the opinion that any rule or regulation which is reasonable and which is reasonably adapted to the purpose of protecting the public health in the use of such milk and its by-products as promulgated by the commissioner of Agriculture would take precedence over any municipal ordinance covering the same subject matter conflicting therewith. Municipal ordinances on said subject, by the express language of Code Section 42-406, can have no force and effect if they are in conflict with the "power and authority of the Commissioner of Agriculture or his subordinates."
FOOD AND DRUGS; EGGS-Inspection and fees. of out of the State. shippers. May 29, 1942.
Hon. A. D. Harris, Chief Food Inspector, Department of Agriculture.
This will acknowledge yours of the 27th instant, requesting advice as to the proper procedure for the collection of egg inspection fees from out of State egg shippers shipping eggs into Georgia, who refuse to pay the inspection fee as required by law.
Under the Egg Marketing Act of 1935 (Georgia Laws. 1935, p. 364) as amended by the Act of 1937 (Georgia Laws 1937, p. 639) .there are at least three remedies which may be employed in the collection of these fees, or against those who violate the terms of the Act.
Section 12 of the Act of 1935 makes it a misdemeanor for any person to violate any of the provisions of said Act, and makes it the duty of the Solicitor General and Solicitor of City Courts to prosecute all persons. charged with the violation of any provisions thereof as soon as the evidence has been transmitted to them by the Commissioner of Agriculture.

99
Also, under Section 3 of the 1937 Act the inspectors of the Department of Agriculture, upon determining that its provisions, or the rules and regulations promulgated thereunder, are being violated may put a "withhold from sale order" on all eggs being sold or offered for sale in such a manner, and such eggs cannot then be sold until such order has been canceled by the Commissioner or his duly authorized agent.
Finally, Section 10 of the Act of 1935 authorizes the employees of the Department of Agriculture "to confiscate and destroy all eggs found to be unfit for human consumption."

FOOD AND DRUGS; EGGS-State inspection fees on eggs shipped by non-resident dealers for use in Army camps.

Hon. Tom Linder, Commissioner of Agriculture.

July 9, 1942.

This will acknowledge yours of June 15, 1942, together with enclosures, relating to the collection of the State inspection fee on eggs shipped into this State by non-resident dealers and wholesalers for use by the Federal Government in Army camps.

I have delayed answering your inquiry until Mr. Harris, the Chief Food Inspector, could obtain copies of the contracts between the Federal Government and these dealers showing where such sales take place, whether inside the State of Georgia, or in some other State. The file discloses that Mr. Harris has made several efforts to obtain copies of the contracts used up until the time this inquiry was submitted to this office, but it appears that neither the Army authorities nor the dealers have complied with his repeated requests to forward copies of such contracts. It is noted that in a letter dated July 3, 1942, signed by John L. Church, of the Legal Department of the Cudahy Packing Company, the statement is made that hereafter future purchase orders and bids will contain the following clause:

"Ttitle to the eggs shall pass at once to the Government at the time of execution of this agreement, although the contractor must bear the risk of loss until the supplies reach destination by shipping on his own commercial bill of lading. Furthermore, this agreement is made upon a sale or return basis, the supplies being subject to final inspection at destina-

100
tion and reves.ting of title in the contractor in the event of rejection."
This same statement is made in the letter under date of June 30, 1942, from Brigadier General C. L. Corbin of the Q. M. C. I infer from these statements, and also from the failure of either the government or these dealers and wholesalers to furnish a copy of the contracts that in the past these transactions have been handled in such a way that the sale actually takes place in Georgia, and title to these eggs does not vest in the purchaser until delivery is made in Georgia. If these are the true factsthat title to these eggs passes in Georgia where the sale is completed upon delivery of the eggs-then your Department would be authorized to collect an inspection fee on these eggs..
On the other hand, if the contract between the Federal Government and the dealer contains a stipulation that title passes to the eggs immediately upon their purchase in Illinois or some other State, I do not think that your Department can collect the inspection fee. Under the egg inspection law of this State it seems quite clear that the fee is chargeable only upon inspections made upon eggs. sold in this State. See Sections 4, 6, 7 and 9 of the Act of 1935 (Georgia Laws 1935, page 364). Thus the question as to the liability for the inspection fee really turns upon a question of fact as to where the sale of the eggs takes place.
In a unanimous opinion in the case of
McCullough Bros. Inc. v. City of Griffin, 181 Ga. 832,
the Supreme Court of our State held:
"The law is settled that where the contract does not otherwise provide, and the sale is. made as in this case, it is completed where the delivery takes place. The controlling question is: where did the sale take place? It is well established in this State by the following cases that, under the facts agreed upon here, the sale takes place at the point of delivery-in this case within the City of Griffin. Crabb v. State, 88 Ga. 584; Southern Express. Company v. State, 114 Ga. 226; Cook Brewing Company v. Lawrence, 142 Ga. 255; and Grusin v. Old Springs Distilling Company, 143 Ga. 25."
See also City of Eatonton v. Averitt, 55 Ga. App. 684.
The facts in the McCullough case were that McCullough

101
Brothers were wholesale dealers in malt beverages, that their place of business was in Atlanta; that their traveling representative took orders for beer in the City of Griffin, and deliveries of such beer were made to the dealers in Griffin subsequent to the taking of the orders, and never at the time the orders were taken; that the company did not maintain a place of business in Griffin, and none of its representatives lived in Grif?n.
Applying the decisions in this case to the matter now before me, I am of the opinion that if the contracts between the government and these wholesale egg dealers have heretofore been silent as to where the sale of the eggs. takes place, that is to say, where title passes, title would pass to the government upon their delivery in this State and the sale would be construed as having taken place in the State of Georgia.
FORESTRY AND GEOLOGY; DEPARTMENT OF NATURAL RESOURCES-Permission for body to be interred in State Park cannot be given.
May 29th, 1941. Hon. Zack D. Cravey, Commissioner, Department of Natural Resources.
I am pleased to acknowledge yours of the 24th ins.tant in which you state that an elderly gentleman of this State, realizing that his habitancy of this terrestrial sphere may soon terminate, has requested of you permission to have his body interred in one of the State parks. You request my opinion as to your authority to grant this request.
This. request is most unusual, if not unique. I have been unable to find, after lengthy research, any case decided by either of the appellate courts of this State or of any other State, which involves directly the question under discussion. Several serious legal obstacles, however, stand in the way of granting such a request. In the first place, under the act creating the Department of Natural Resources and defining the powers. duties and authority of the Commissioner there is neither any express nor implied power given to the Commissioner to dispose of any part of a State park for the purpose aforesaid. It is axiomatic that the property embraced in these State parks is public property, and

102
is dedicated to a public use. In fact, Code Section 91-104 de-' dares.:
"The State holds the legal title to and/or is the beneficial owner of . . .. All lands and other property conveyed to or held by the State Department of Forestry and Geological Development, or its predecessors, for forestry or park purposes."
Under the Act of 1937 (Ga. Laws 1937, p. 264, et seq.,) the State is authorized 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. The right of eminent domain shall be exercised in accordance with the provisions of law now or hereafter existing for. the condemnation of property for public purposes." (Section 43-138(b) Georgia Code Annotated.)
It is manifest that property acquired for park public purposes in any one of the methods described in this statute should and must be used for the purpose for which it was acquired. It would be a perversion of the right of eminent domain to acquire property by condemnation for a State park, and then permit its use as a private burial ground. Such use, of course, is antagonistic to the purpose for which the State parks were created, as the use of State property as a burying place is neither identical with or similar to the use of such property as a State park for recreational, scenic and other purpose outlined in Chapter 43-l of the Georgia Code Annotated.
In the second place, I understand that much of this property was acquired by the State as a gift from private individuals and that some of the deeds conveying title to the State contain a defeasance clause or covenants which provide that the property described in the deeds may be used only for park purposes, and in the event that the State ceases to use the property for such purposes, then the title thereto shall revert to the granor, his heirs, successors or assigns. It follows therefore that if the State permitted the use of any part of the State park property for a private burial ground the tenure of the premises by the State would be endangered, and in all probability, the courts would hold that the State had broken its covenant with the grantor.

103
While it does not fall within the purview of the Attorney General to pass upon matters of policy of the various executive and administrative departments of the State, nevertheless it might be useful to point out that if the request of the individual in question were granted a precedent would be established, and it would be hard to deny any similar request made by any other citizen of this State for permission to be buried i11,. the State parks. In other words, if one such request were granted, it would be discriminatory to deny any other of a similar nature. Thus, from year to year as the Grim Reaper continued to wield his scythe and take his toll, and the requests for permits to be buried in State recreational parks continued to mount in number the State would find itself without recreational parks, but firmly entrenched in the cemetery business.. I am therefore of the very definite opinion that you have no authority to grant the request of the gentleman for burial in any of the State parks. Naturally, everyone is sympathetic. to requests of such a sacred and delicate nature, but the law, and not sentiments and sympathies, governs the powers and authority of all public officers and such an officer cannot exercise a power not conferred by the General Assembly or by the Constitution itself. (See Code Section 89-903.)
GAME AND FISH-Veteran's disability certificate does not exempt payment of wholesale fish dealer's license.
February 3, 1942. Hon. Tom Linder, Commissioner of Agriculture.
This will acknowledge yours of January 28th, 1942, requesting an opinion as to whether veterans who hold certificates of exemption issued by the State Revenue Commissioner and who engage in business as wholesale fish dealers 'are exempt from the payment of the wholesale fish dealer's license fee of $50.00 imposed under Section SA of the Act of 1937-1938.
Our Supreme Court has held that a person holding a certificate of exemption issued in accordance with the terms of the Veteran's Licens.e Act is not exempt from the payment of any regulatory fee but only license fees for taxes "for conducting a business or peddling." See McKinney vs. Patten 176 Ga. 719 and

104
Snipes vs. Georgia 178 Ga. 815. The annual license fee of $50.00 levied upon wholesale fish dealers is, in its nature, a regulatory fee. The statute specifically provides that,
"All revenues obtained from the annual license fees exacted or required to be paid by and under the terms of this Act, shall be allocated to the Department of Agriculture for the purpose of administering this Act."
Thus it is clear that the license fee is not levied strictly as a revenue raising measure defraying the general expenses of the governmnet, but on the contrary is exacted for the purpose of defraying the cost of administering the regulatory features and police measures contained in the statute and designed to protect the public health.
Based upon the decisions of our Supreme Court, and due to the fact that the license fee of $50.00 is, in its nature, a regulatory fee, I am of the very definite opinion that a disabled veteran holding a certificate of exemption and carrying on a business as a resident wholesale fish dealer would not be exempt from the payment of said fee.

GENERAL ASSEMBLY-County School Superintendent meligible; member may resign.

Hon. C. 0. Taft, Representative, Atkinson County, Kirkland, Georgia.

January 19, 1942.

This will acknowledge yours of the 12th instant requesting information as to whether a member of the Legislature may serve as a county school superintendent, and also whether he may resign as a member of the General Assembly, and, if so, to whom.

Your first question is specifically answered in the negative by Article 3, Section 4, Paragraph 7 of the Constitution which
reads:
"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;

105
nor shall any Senator or Representative, after his qualification as s.uch, 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."
The office of county school superintendent is an office having an emolument "under this State," as a part of the salary of each county school superintendent is paid by the State.
In construing the language of this clause of the Constitution in determining whether a member of the county board of education is eligible to serve as a member of the General Assembly the Supreme Court in the case of McWilliams vs. Neal, 130 Ga. 733 had this to say:
"Where ineligibility to the second office results from the holding of a prior office, then the result is that the election to the second office is void and his right to hold the other remains unaffected."
The court held that Mr. McWilliams' election to the Legislature did not vacate his office as a member of the county board of education but merely rendered him ineligible to membership in the General Assembly. I think the same rule would apply with reference to the office of county school superintendent.
Under the provisions of Article 3, Section 7, Paragraph 1, each house of the General Assembly is made the "judge of the election, returns, and qualifications of its members" and would be the tribunal which would pass upon the eligibility of the member to hold his seat in the house or senate.
Answering your other questions, I know of no statute or provision of the Constitution which would prohibit a member of the General Assembly from resigning. I might point out, how. ever, that under the provision of the Constitution first quoted above a senator or representative who resigned would still be ineligible to be appointed by the Governor, or elected by the General Assembly, to any office or appointment having any emolument annexed thereto "during the time for which he shall have been elected." That is to say, even though disqualified for the unexpired period of the term for which he was originally elected to the General Assembly from being appointed by the Governor

106
or elected by the General Assembly to any other office or appointment having any emolument annexed thereto. It would not prevent him from being elected by the county board of education or by the people to some other office after he had resigned as a member of the General Assembly.
Code Section 89-504 provides that resignations of members of the General Assembly "shall be made to the Governor."

GUARDIAN AND WARD-Insane persons may be committed to Milledgeville State Hospital under Code Section 49-612.

Dr. L. P. Longino, Superintendent, Milledgeville State Hospital, Milledgeville, Georgia.

March 30, 1942.

This will acknowledge yours of the 26th instant directing my attention to Section 49-612 of the Code of Georgia of 1933 and requesting my opinion as to the validity of commitments to the Milledgeville State Hospital made under the procedure outlined in this statute.

It so happens that the Supreme Court of this State has had occasion to pass upon this very question. In the case of Dixon v. Hicks, Sheriff, 160 Ga. 487, it was held that the Act of 1918, now codified as Section 49-604 of the Code of Georgia of 1933, which section outlines the procedure usually followed for commitments., did not repeal or supersede the statute now codified as Section 49~612. In said case a petition for habeas corpus was brought against certain officers claiming that Mrs. W. I. Dixon, who had been committed under the procedure outlined in Code Section 49-612, was being illegally restrained of her liberty. The Supreme Court affirmed the judgment of the trial judge in sustaining the demurrer filed to the petition of Mrs. Dixon, sustained the order of the trial judge in dismissing the petition, and in effect held that a commitment under the procedure outlined in Code Section 49-612 was. just as valid and effectual as one made under Code Section 49-604.

In view of this decision, I am of the opinion that it will be proper for you to receive as a patient in the Milledgeville State

107
Hospital any person committed to your institution under the procedure outlined in Code Section 49-612.

INDUSTRIAL RELATIONS; UNEMPLOYMENT COMPENSATION-Act amended.

Hon. Ben T. Huiet, Commissioner of Labor.

March 29th, 1941.

This will acknowledge your request for an opinion as to the proper reading and construction of Section 9 (b) of the Unemployment Compensation Law (Ga. Laws 1937, p. 806, 848), relating to the Unemployment Compensation Fund, as amended by the Act approved March 21st, 1941, by Sections 12, 13 and 37.

You point out in your request that unless these amendments have the effect of requiring the deposit of the contributions collected under the Act after the collections have cleared in the Trust Fund of this State under the custody of the Secretary of the Treasury of the United States, that the Georgia Unemployment Compensation Law will be out of conformity with the Federal Social Security Act and as a result thereof no administrative funds will be granted to your Department and that the taxes paid by the employers of Georgia will not be entitled to be credited against the Federal tax. This being true, I think that the amendments in question should be inserted into the original Act in such a manner as to make them harmonize with the Federal procedures and statutes relating to such matters, if such can be done without doing violence to the intent of the Legislature.

Section 38 of the amendment to the Act of March 21st, 1941, indicates clearly a legislative intention that this statute be construed so as to bring it in harmony with the Federal statutes, and to avoid irreconcilable conflicts therewith. The whole structure of State Unemployment Compensation laws and other laws enacted in furtherance of the principles of thl~ Federal Social Security Act contemplates a correlated Federal-State scheme.

Keeping these fundamental purposes and policies in mind, I am of the opinion that Section 9 (b) as so amended now reads and should be construed as follows :

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"(b). Accounts and Deposits. The Commissioner shall be the custodian of the fund. The State Treasurer, under the direction of the Commissioner, shall issue his warrants upon it in accordance with such regulations as the Commissioner shall prescribe. The Commissioner shall maintain within the fund three separate accounts : ( 1) A clearing account; (2) an unemployment trust fund account; and (3) a benefit account. All monies payable to the fund shall be immediately deposited in the clearing account by the Commissioner upon receipt thereof. Refunds payable pursuant to Section 14. and Section 19 (h) (7) (F) of this Act may be paid from the clearing account or the benefit account upon warrants issued by the Treasurer under the direction of the Commissioner. After clearance thereof, all other monies in the clearing account shall be immediately deposited with the Secretary of the Treasury of the United States of America to the credit of the account of this State in the Unemployment Trust Fund, established and maintained pursuant to Section 904 of the Social Security Act, as amended, any provision of law in this State relating to the deposit, administration, release, or disbursement of funds in the possession or custody of this State to the contrary notwithstanding. The benefit account shall consist of all monies requisitioned from this States' account in the Unemployment Trust Fund. Except as herein otherwise provided, monies in the clearing and the benefit accounts shall be deposited by the Commissioner in the depositories of this State in such amounts as - the Governor might direct, but before any such depository shall be eligible for such deposits it must post good and solvent bond, payable to the Governor and his successors in office, to be approved by him and in such sums as he might require, but no public deposit insurance charge or premium shall be paid out of the fund. Such money shall be secured by the depository bank to the same extent and in the same manner as required by the general depository laws of this State; and collateral pledged for this purpose or bonds given for this purpose shall be kept separate and distinct from any collateral pledged to secure the other funds of the State. The State Treasurer shall be liable on his official bond for the faithful performance of his duties in connection with the Unemployment Compensation Fund as provided under this Act. Such liability on the official bond shall be effective immediately upon the enactment of this provision, and such liability shall exist in addition to the liability upon
any separate bond existent on the ecective date of this provision, or which may be yiven in the future. All sums

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recovered on any surety bond for losses sustained by the Unemployment Compensation Fund shall be deposited in said fund."
Giving to the Section as amended this form and construction makes it not only embody the language and intent of the amendments, but also conform to the Federal Social Security Act and the intent of the General Assembly.
INSURANCE-Whether an insurance company doing business in the State exclusively on military res.ervation is subject to state license and regulation, discussed.
October 16, 1941. Hon. Homer C. Parker, Insurance Commissioner.
This will acknowledge yours of the 3rd instant referring to the opinion rendered by Honorable Duke Davis, Assistant Attorney General, under date of February 28, 1939, to the late Honorable W. B. Harrison, in which it was held that an insurance company doing business exclusively on military reservations in this State would be subject to the insurance laws of Georgia. In view of the additional facts submitted to you by the United Services Life Insurance Company of Washington, D. C., with respect to their manner of doing business, you request me to review the file and furnish your Department with an opinion as to whether this company would be subject to the insurance laws and regulations of this State.
The file in this matter discloses that this company was granted a charter by an Act of Congress and its activities are regulated by the insurance laws of the District of Columbia, and it is operated from Washington, D. C., and sells life insurance only to commissioned officers of the various branches of the service; that its stock is owned exclusively by Army officers, with the exception of two men who are insurance experts, its President and Secretary; that it is doing business in every fort in every State of the United States (except Georgia) and its territories, without being subject to the insurance laws of any of said States; that no insurance is sold to any person who is not an officer located on some Federal reservation; that it is the only company

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in which officers can insure their lives because of the policy restrictions of other companies; that before selling insurance at any fort, permission is first secured from the Commanding Officer to do so; that the applications for insurance are taken on the reservation, the medical examinations made by Army doctors, the applications mailed from the reservation post office and the application accepted in Washington and policy mailed to the officer on the reservation; that the company maintains no office in the State of Georgia nor does it sell any insurance off of the Federal reservation owned by the Federal Government and used for forts or arsenals in this State.
It further appears that by Army regulations the insurance premiums of the officers are deducted by the government from the officers' pay and mailed to the insurance company by the Treasury Department.
In determining the question as to whether any activities 'carried on on any government reservation in this State are subject to the insurance laws of Georgia, it is pertinent to inquire as to the status of the property in question. It is necessary to find how and under what authority the Federal Government obtained title to the property, and the conditions, if any, under which territorial, jurisdiction was ceded by the State to the Federal Government, and the extent of the jurisdiction ceded.
It is now settled that the jurisdiction acquired from a State by the United States, whether by consent to the purchase or by cession, may be qualified in accordance with agreements reached by the respective governments. See
Collins v. Yosemite Park and C Company, 304 U. S. 82, L. Ed. 1502;
James v. Dravo Contracting Company, 302 U. S. 134, 82 L. Ed. 155.
The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. See

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Arlington Hotel Company v. Pant, 278 U. S. 439; 73 L. Ed. 447;
James Stewart & Co. v. Sadrakula, 60 S. Ct. 431.
The consequences of cession by a State to the United States of jurisdiction over lands held by the latter for military purposes are elaborately considered and dealt with in
United States v. Unzeuta, 281 U.S. 138,.74 L. Ed. 761,
and
Surplus Trading Co. v. Cook, 281 U. S. 647, 74 L. Ed. 1091.
It was held in the Unzeuta case, supra, that where the United States purchases lands by the consent of the legislature of the State within which they are situated for the purposes named in Clause 17 of Section 8 of Article 1 of the Federal Constitution "the Federal jurisdiction is exclusive of all State authority."
This view was also expressed in the case of Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 29 L. Ed. 264.
There are also many state cases from other jurisdictions. which reach the same conclusion, and while it may be that some distinction should be drawn in these cases based upon the nature of the consent given by each State to the purchase or acquirement of land, I feel that it is unnecessary to do so in order to determine the matter now under discussion. This is true for the reason that the Acts of the General Assembly of this State, properly construed, clearly indicate that the only reservation made in the legislative consent given by Georgia to the Federal Government for the acquirement of places for the erection of forts, arsenals, etc., was that the State should retain jurisdiction for the purposes of "service upon such lands of all civil and criminal process of the courts of this State." This reservation is common to many State statutes. ceding jurisdiction to the Federal Government for the aforesaid purposes, and the purpose of such reservations is that lands so ceded to the Federal Government shall not become a sanctuary or asylum for fugitives from justice who have commited crimes outside of the territory ceded to the Federal Gov-

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ernment. See Fort Leavenworth R. R. Co., etc., supra. These reservations, however, have been construed uniformly as not reserving concurrent jurisdiction or power of legislation in the State, and as not being incompatible with the exclusive sovereignty or jurisdiction of the United States.
The distinction made in the various cases seems to be that as pointed out by Chife Justice Hughes in the Unzeuta case as follows:
"When the United States acquires title to lands which are purchased by consent of the Legislature of the State in which they are situated 'for the erection of forts, magazines, arsenals, dockyards, and other needful buildings' the Federal jurisdiction is exclusive of all State authority. With reference to land otherwise acquired, this court said in Fort Leavenworth, etc., v. Lowe, 29 L. Ed. 264, that a different rule applies, that is, that the land and the buildings erected thereon for the use of the National Government will be free from any such interference and jurisdiction of the State as would impair their effective use for the purposes for which the property was acquired. When, in such cases, a State cedes jurisdiction to the United States, the State may impose conditions which are not inconsistent with the carrying out of the purpose of the acquisition. (Citing many cases). The terms of the cession, to the extent that they may lawfully be prescribed, determine the extent of the Federal jurisdiction."
There have been only four general statutes enacted in this State, the purposes of which were to either cede certain lands to the United States of America or to give the consent of the State to the Federal Government to purchase, condemn, or otherwise acquire, lands in Georgia for sites as custom houses, courthous.es, post offices, or for the erection of forts, magazines, arsenals, dockyards and other needful buildings. These Acts are as follows: Georgia Laws, Vol. 1, 1890-91, page 201; Georgia Laws 1906, page 126; Georgia Laws 1927, page 352; Georgia Laws 1935, page 442. All of these Acts are now codified as Chapter 15-3 of the Code.
The Act of 1890-91 ceded jurisdiction to the United States of America to certain lands upon which to erect public buildings for the transaction of its business "not to exceed one acre of any one tract and privileges as may be purchased in this State." In

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this Act one of the express conditions of the grant was that the State should "so far retain a concurrent jurisdiction with the United States over said landsJJ so that civil and criminal process may be executed thereon; and another condition was that "the State shall retain its civil and criminal jurisdiction over persons and citizens in said ceded territory as over other persons and citizens in this State." It will be observed that this Act, as well as all of the conditions imposed therein upoh the grant, related only to lands purchased by the Federal Government upon which to erect public buildings and to such lands "not to exceed one acre in any one tract." (Italics supplied.)

The Act of 1906 gave the consent of the State to the United

States to purchase, condemn or otherwise acquire lands for sites

for custom houses, courthouses, post offices, or for the erection

of forts, magazines, arsenals, dockyards, and other needful build-

ings, and exclusive jurisdiction over such places so acquired was

ceded to the United States "for all purposes except the service

upon such sites of all civil and criminal process of the courts

of this State."



In the Act of 1927 the consent of the State of Georgia was given to the Federal Government to acquire, in accordance with the 17th Clause 8th Section and 1st Article of the United States Constitution, land "for custom houses, post offices, arsenals, other public buildings, etc." Exclusive jurisdiction over the land so acquired was vested in the United States, except that the State retained the right to serve thereon all civil and criminal processes issued under the authority of the State.

Since the Act of 1935 above referred to does not deal with property to be acquired for forts, arsenals, etc., it is unnecessary to comment upon its terms. Thus it will be seen that the language in Code Section 15-302 "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" was taken from the Act of 1890-91. It would be against the weight of authority as found in many decisions of our Supreme Court to construe this language as retaining State jurisdiction to legislate as to what can or can not be done upon Federal lands. acquired for the purposes of erecting forts or arsenals by the Federal Govern-

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ment. The codifiers. of the Code had no authority to legislate, and could not enlarge the terms of the Act of 1890-91 so as to make this reservation, whatever its meaning or proper construction, applicable not only to lands of the nature and extent described in the Act of 1890-91, but also to lands acquired by the Federal Government for the erection of forts and arsenals. It is true that the Code of 1933 was adopted and made of force as the Code of Georgia and it is provided in Code Section 102-101 that the Code has. "the effect of statutes enacted by the General Assembly," but since the military reservations upon which the insurance in question is desired to be sold were acquired by the Federal Government prior to the adoption of the Code of 1933, it is well settled by the Ladd case (In Re Ladd, 74 Fed. 31) that the State could not, by the action of its General Assemby alone, recapture any part of the jurisdiction previously ceded to the Federal Government, or impose any additional restrictions on such jurisdiction.
Under the above cited authorities, I am of the very definite opinion that the insurance laws of this State have no force and effect with reference to transactions carried on and completed upon any of the lands of the Federal Government owned and operated as forts, arsenals, or military reservations. I am fortified in this opinion by an informal opinion of the Attorney General of New York State under date of June 22, 1932, wherein it was held that no license was needed from that State to sell insurance on Federal Army Posts or other Federal property; that such activities on the Federal lands was a matter for the Federal authorities, since Article 1, Section 8, Clause 17 of the Constitution vests Congress with the authority "to exercise exclusive legislation in all cases whatsoever . . . 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, dockyards, and other needful buildings." In the course of this opinion it was said:
"It may be argued on behalf of the State that the powers not delegated to the United States by the Constitution are reserved to the States respectively or to the people (United States Constitution, Article X), and that as Congress has no special jurisdiction over insurance, the laws of

115
our State should operate. We cannot, however, bring ourselves to that conclusion. If any crimes, State or Federal, occur on Federal property, it is wholly a matter for the Federal Government."
Also in the file I find a letter from Honorable Dan C. Boney, Insurance Commissioner of the State of North Carolina, under date of September 12, 1941, in which it is stated:
"This Department has previously ruled' that where an agent confines his soliciting activities to members of the armed service of the United States and located in Federal reservations or posts, it is not necessary that he obtain license for this purpose."
Since the opinion of Honorable Duke Davis above referred to was not official, I do not deem it necessary to overrule or withdraw the same. You may consider said opinion, however, as no longer binding upon your Department.

INSURANCE-Premium tax cannot be abated because company holds or owns U. S. Government bonds unless the bonds are taxable by the State.

Hon. Homer C. Parker, Comptroller General.

October 28, 1942.

I am pleased to acknowledge receipt of your letter of October 27, iri which you request an opinion as to whether or not Government bonds held by an insurance company in this State belong to the class of securities which can be used to abate or reduce the premium tax due by said insurance company.

Section 92-2510 of the Amended Code provides as follows:

"Whenever any insurance company doing business in this State shall make it appear by proof to the Insurance Commissioner that one-fourth of the total assets are invested in any or all of the following securities or property, to wit: Bonds of this State or of any county or municipality of this State, property situated in this State and taxable herein, loans secured by liens on real estate situated in this State, or policy loans on insurance policies issued by such company on lives of persons resident in this State, then the premium tax levied by section 92-2509 shall be abated or reduced to one per centum upon the gross receipts of such company; and

116
if the amounts so invested by any such company shall be as much as three-fourths of the total assets. of such company, then said premium tax shall be abated or reduced to onefourth of one per centum upon such gross receipts of such company."
The above provision of law specifically requires that the property must be taxable in this State. Since Government bonds are not subject to State taxation, I am of the opinion that these United States. Government bonds cannot be used to abate or reduce the premium tax levied by Section 92-2509 of the Amended Code.
INSURANCE-Whether rates for National Defense Projects may be reduced a matter for administrative determination by the Insurance Commissioner.
March 28, 1941. Hon. Homer C. Parker, Insurance Commissioner.
This will acknowledge receipt of your letters of March 14th and March 19th with reference to compensation insurance rates for National Defense projects. I sincerely regret the delay in answering your letters. which has been occasioned by the pressure of work on this office during the session of the General Assembly.
With your letter of March 14th, you inclose two letters dated March 11th from Mr. W. F. Roeber, Manager of the National Council on Compensation Insurance, one of which requests the approval of your Department of a 20% reduction from manual rates applicable to National Defense projects in the case of stock company members, and a 10% reduction from rates. normally applicable for non-stock carriers.
With your letter of March 19th you inclose a letter of March 18th from H. E. Morrow, Superintendent of the Underwriting Department of the Dilbeck-Dominey Insurance Agency, requesting the approval of your Department of a 21% reduction from manual rates in the case of U. S. Government Defense projects on Workmen's Compensation insurance, together with a letter dated March 19th from the Industrial Board approving a reduction in insurance rates by stock companies writing compensation

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insurance in Georgia, to be effective on U. S. Government Defense

Projects only, provided such reduction be applicable to all such

companies doing business in this State and to such rates as are now

or hereafter may be in effect. You request my opinion as to

whether such reductions would be in violation of the insurance

laws of this State, particularly Section 56-218 of the Georgia

Code of 1933.

,

Section 56-218 of the Georgia Code of 1933, to which you refer, provides as. follows:
"No insurance company or insurance agent doing business in this State shall enter into any contract to rebate any insurance premium or any part thereof of any insured or other person. No person shall sell or offer for sale in this State, and no insuance cowpany shall do business in this State which sells or offers for sale to the public, any 'special contract', 'board contract', or any other form of policy or contract whereby any discrimination in any form or character is allowed to any particular person or persons. Any insurance company violating the provisions of this Section may have its license revoked as provided in Section 56-407."
The appellate courts of this State have applied that portion of the Act of 1912, from which Section 56-218 of the Code is derived, in but two cases. In the case of
Jones vs. Crawford, 21 Ga. App. 29,
the Court of Appeals dealt with an agreement to rebate a part of the first premium, and held that the agreement to rebate was an integral part of the contract which culminated in the giving of a note, and the agreement to rebate being illegal and void, the note given in furtherance of the contract was. itself illegal and void. In
Leonard v. American Life & Annuity Company, 139 Ga. 274,
the Supreme Court held that a contract which named the insured as a local inspector and stated that he agreed upon written request to furnish information on certain subjects which he might be able to obtain without expense to himself, and which recited that in consideration thereof the insurer agreed to create a fund equal to $1.25 for each $1,000.00 of insurance in force in Georgia, and also .25c for each $1,000.00 of insurance in force in the United
States, Georgia excepted, which should be written in each and

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every year for ten years after a certain date, and all renewals thereof for twenty years succeeding that date, the total fund to be divided into 1,000 equal shares and each local inspector who should pay to the company the annual premium on $5,000.00 of insurance and perform the other duties required by the contract to be entitled to one share therein, and until contracts to the number of 1,000 should be sold, the amount to be paid to each share would be proportioned to the number issued, was a special discriminatory contract prohibited by the Act of August 19, 1912 (Acts of 1912, p. 129).
In neither of the two cases cited above, however, does the court seek to give a comprehensive definition of the word "discrimination" as used in Section 56-218 of the Code.
Little help is derived from the decisions of the courts of last resort of other states construing statutes of such states prohibiting discrimination by insurance companies, since the majority of those cases deal with statutes prohibiting discrimination by life insurance companies between policyholders with the same expectation of life in respect to the premiums they were required to pay.
Webster defines "discriminate" as meaning "to make a difference in treatment or favor (of one as compared with others) ; as, to discriminate in favor of one's friends; to discriminate against a special class." The same authority defines "discrimination" as meaning "a distinction, as in treatment; esp., an unfair or injurious distinction." With reference to statutes, discrimination has been defined as conferrng particular privileges on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges granted and between whom and those not favored no reasonable distinction can be found.
Franchise Motor Freight Association v. Seavey, 235 Pac. 1000 (Calif.), 2 Words and Phrases, 3rd Series, p. 1074.
In Atlantic Pipeline Company v. Brown County, 12 Fed. Supplement, 642.

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it was held:
"Discrimination is synonymous with distinction. It is the antithesis of fairness." In
Wimberly v. Georgia Southern & Florida Railway Co., 5 Ga. App. 263,
the Georgia Court of Appeals defined the word "discriminate" as "treating one differently from another."
Of course it is apparent that the General Assembly, in prohibiting any form of policy or contract "whereby any discrimina-
tion in any form or character is allowed to any particular person or persons", did not intend that the same rates should be applied to all classes of persons seeking compensation insurance without
regard to allowance for merit rating, kind of risk or degree of hazard. Thus Section 114-609 of the Code provides, in part:
" (a) The rates charged by all carriers of insurance, including the parties to any mutual, reciprocal or other plan or scheme for writing insurance against the liability for compensation under this law, shall be fair, reasonable and adequate, with due allowance for merit rating, and all risks of the same kind and degree of hazard shall be written at the same rate by the same carrier. The basic rates for policies or contracts of insurance against liability for compensation under this title shall be filed with the Insurance Commissioner for his approval, and no policy of insurance against such liability shall be valid until the basic rates thereof have been filed with and approved by the Insurance Commissioner, nor if they have been subsequently disapproved by him. Any plan or scheme for modification of such basic rates by physical inspection or experience or merit rating, shall likewise be filed with the Insurance Commissioner and by him approved, and no carrier of insurance shall write any such policy or contract until after filing and approval of a basic rate therefor and a schedule or plan to be employed in producing individual rates for risks."
From the information contained in the file which has been handed to me on this question, there are not sufficient facts given
for me to determine whether a separate classification of persons engaged in the performance of work on National Defense Projects., and the granting of lower rates to such classes of persons, would or would not amount to a discrimination such as is prohibited by

120
Section 56-218 of the Code. Whether such reduced rates are fair,
reasonable and adequate and based upon due allowance for merit
rating, kind of risk and degree of hazard, are questions which
should be determined by the Insurance Commissioner before
approving such rates, and after such investigation as he determines
necessary in order to decide the question.
Subsections (b) and (c) of Section 114-609 of the Code
provide:
"(b) Each such insurance carrier, including the parties to any mutual, reciprocal, or other plan or scheme for writing insurance against the liability for compensation under this law, shall report to the Insurance Commissioner as provided by law, and in accordance with such reasonable rules as the Insurance Commissioner may at any time prescribe for the purpose of determining the solvency of the carrier, and the adequacy of reasonableness of its rates and reserves; for such purpose the Insurance Commissioner may inspect all the books and records of such insurance carrier and its agent or agents, and examine its agents, officers and directors under oath.
"(c) Said Commissioner shall have the power, in such manner and by such means as he may deem proper and adequate, to gather statistics. and information and make investigations concerning rates for such insurance, and to that end he may take into consideration the income and earnings, from any and every source whatever, of any such company, and may call upon the directors of the Department of Industrial Relations to sit with him in an advisory capacity at any investigation or hearing concerning such rates. Authority is hereby conferred upon the Insurance Commissioner to make such arrangements with the Department of Industrial Relations as may be agreeable to them for collecting, compiling, preserving, and publishing statistics and other data in connection with the work of regulating Workmen's Compensation insurance rates; and whenever he deems proper, with the consent of the directors, he may appoint any of the directors, or employees of the Department, as special agents of the Insurance Commissioner to take testimony and make reports with reference to any matters involving questions of Workmen's Compensation insurance rates. Any party at interest may appeal from any decision of the Insurance Commissioner, made under this s.ection, in the manner provided by law."
It is my opinion, therefore, that the Insurance Commissioner,
after examination, should determine whether there is any reason-

121
able basis for separately classifying persons engaged in performing work on National Defense Projects and granting lower rates on compensation insurance to persons so engaged. If it is found that such proposed reduction in rates is offered to a class arbitrarily selected and not based upon the kind of risk or degree of hazard, and the same rates are not offered to others who stand in the same relation to the privileges granted, and behyeen whom and those not favored no reasonable distinction can be found, the proposed reduction in rates would violate Section 56-218 of the Code. The question, in its final analysis, is an administrative one, depending upon the facts of the particular case.
INSURANCE; STATE FIRE INSPECTOR-Powers and duties; subprenas for witnesses, etc.
February 28, 1941.
Hon. Homer C. Parker, Comptroller General.
This will acknowledge receipt of your letter of February 17th inclosing a letter addressed to you in which the State Fire Inspector and the Assistant Fire Inspector seek advice with reference to certain situations that might arise in the conduct of their official duties. For the purposes of convenience, the answers to their questions will be numbered to correspond to the numbers of the questions.
1. If and when the fire inspector shall decide to hold a hearing before himself in connection with a fire he is investigating, and he places in the hands. of the sheriff subprenas issued by said fire inspector, for service upon witnesses, in the event said witnesses fail or refuse to appear in answer to the same, what authority, if any, has the fire inspector to punish said witnesses and/or to compel the attendance of said witness; and what punishment has the fire inspector the legal right to mete out?
Section 56-112 of the Georgia Code of 1933 provides:
"When any property shall be destroyed by fire, and the Commissioner shall deem it proper to have the cause of such fire investigated, he shall cause the State Fire Inspector or the assistant State fire inspector to make a thorough investigation of all the facts connected with such fire and report to

122
him in writing under oath. Such inspector, or his assistant, when in his opinion such proceedings shall be necessary, shall take the testimony of all persons supposed to be cognizant or have information or knowledge in relation to the matter investigated, and he shall cause the same to be reduced to writing, and if he shall be of the opinion that there is evidence sufficient to charge any person with the crime of arson, he shall cause such person to be arrested on a warrant, and cause the same to be fully investigated before an officer as is provided for committal trials, or he shall furnish the solicitor general of the circuit in which the fire occurred all such facts, together with the names of witnesses, and all the information obtained by him in such investigation. Such fire inspector and his assistant shall have the same power as justices of the peace for the purpose of summoning before him, in the county where the fire occurred, and compelling the attendance instanter or at such time as may be designated by the said State Fire Inspector or his assistant, to testify in relation to any matter which, by the provisions of this law, is the subject of investigation. Said State Fire Inspector or his assistant may administer oaths to witnesses appearing before him, and may compel witnesses to answer questions pertaining to any investigation as now provided by law for committal courts, and said inspector and his assistant shall have all the power now conferred by law on courts of inquiry in the investigation of any matter coming before him under this law." (Italics supplied.)
You will note that by the provisions. of this Section the State Fire
Inspector or his assistant is given the same power as justices of
the peace for the purpose of "summoning before him, in the
county where the fire occurred, and compelling the attendance
* * * to testify in relation to any matter which, by the provisions
of this law, is the subject of investigation." Any witness failing
to attend a justice's court, after being duly served with a sub-
prena, is s.ubject to a fine not exceeding $10.00. See Code Section
24-1305; Smith vs. Ferrario, 105 Ga. 51 (53).
2. When a witness appears before the Fire Inspector in response to a subprena and when questions touching on the fire under investigation are propounded by the Fire Inspector, and the witness fails and refuses to answer the same, what authority has the Fre Inspector to punish the said witness for the purpose of compelling an answer to the question?
Referring back to Section 56-112 of the Code, it will be

123
noticed that the last sentence of that Section provides as. follows:
"Said State fire inspector or his assistant may administer oaths to witnesses appearing before him, and may compel witnesses to answer questions pertaining to any investigation as now provided by law for committal courts, and said inspector and his assistant shall have all the power now conferred by law on courts of inquiry in the investigation of any matter coming before him under .this law."
The language quoted is ambiguous. Since any judge of the superior or county court, or justice of the peace, or city or town officer, who may be ex-officio justices of the peace, may hold a court of inquiry (See Code Section 27-401), and since the powers of these officers to punish for contempt, and extent of the punishment which they can mete out are differently fixed by statute, it is difficult to determine from the language used by the General Assembly in Section 56-112 of the Code just what authority it sought to vest in the State Fire Inspector or the as.sistant State fire inspector to punish a witness for contempt who refused to answer the questions. That it did seek to vest some such authority in these officers cannot be denied. It would be a useless. thing to authorize the officers to compel witnesses to attend the hearing without authorizing them to compel their questions to be answered. The General Assembly specifically said that these officers "may compel witnesses. to answer questions pertaining to any investigation as now provided by law for committal courts," and further vested the inspector and his assistant with all the power conferred on courts of inquiry. Chapter 27-4 of the Code which deals with the organization and powers of courts of inquiry does not specifically vest in such courts the power to punis.h witnesses for contempt for refusing to answer questions; the reason being that each of the officers who is authorized to hold a court of inquiry has such power. In construing Section 56-112 as a whole, it seems to be the reasonable construction of that Section that since the General As.sembly specifically sought to vest in the State Fire Inspector and his assistant the authority to compel witnesses to answer questions, vesting in them all of the powers of courts of inquiry, and since it specifically vested in such officers all of the powers of the justices of the peace with reference to summoning and compelling t~e attendance of witnesses, the State Fire Inspector and

124
his assistants have the same power to compel witnesses to testify as justices of the peace when acting as a court of inquiry. Any other construction of Section 56-112 would render it futile and nugatory for all practical purposes. In the construction of a statute a court may decline to give a legislative act such construction as will attribute to the General Assembly an intention to pass an act which is not reasonable, or as will defeat the purpose of the proposed legislation. Board of Tax Assessors vs. Catledge, 173 Ga. 656. Justices of the peace have authority to fine a witness who refuses to testify not more than $5.00 and imprison him not more than five hours as for a contempt of court. See, Smith vs. Ferrario, supra, Code Section 24-601 (2).
The power to punish or fine a witness for refusing to answer a question, however, is subject to the answer to question 5 of your letter, which is hereafter discussed.
(3) If after the hearing the Fire Inspector shall be of the opinion that there is evidence sufficient to charge any person with the crime of arson, should the warrant be taken out in the justice of the peace court in the district in which the witness or witnesses live, or in the district where the fire occurred; and where witnesses live in different districts, what would be the rule?
Section 24-1501 of the Georgia Code of 1933 provides in part:
"A justice of the peace shall have criminal jurisdiction in the following instances:
(2) In issuing warrants for the apprehension of any person charged on oath with a violation of any penal law of this State or for the apprehension of any person who the justice of the peace officially knows has violated any such . provision."
Section 27-102 provides:
"Any judge of a superior, city, or county court, or justice of the peace, or any municipal officer clothed by law with the powers of a justice of the peace, may issue his warrant for the arrest of any offender against the penal laws, based either on his own knowledge or the information of others given to him under oath."
Section 27-108 provides:
"A warrant for arrest may be issued in any county,

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though the crime was committed in another; and a warrant once issued may be executed in any county, without being backed or indorsed by a judicial officer upon its being carried . from one county to the other."
Since however, the original jurisdiction of a justice of the peace extends throughout his county as to crimes committed therein (Code Section 24-1502), a justice who issues a warrant for a person who has committed a crime in another comity cannot hold a court of inquiry in such case to determine whether or not the accused should be committed. Barrow vs. Southern Railway Company, 139 Ga. 733.
(4) If at the hearing before the fire inspector the person suspected of setting fire demands the presence and participation of his counsel, does the law contemplate that he shall have that right, or is that right reserved for the possible hearing before the regular justice of the peace?
Article 1, Section 1, Paragraph 5 of the Constitution of this State (Code Section 2-105) provides in part:
"Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel;" Code Section 27-403 provides that in no event shall the defendant be forced to trial without the aid of counsel, if there is a reasonable probability of his securing counsel without too great a delay. These provisions of law however, are to protect persons who are accused of crime against the laws of this State. The hearing provided by Section 56-112 is merely a preliminary ~earing to be had before the formal accusation of any person. It would not seem therefore, that a person appearing as a witness at such a hearing would be one "accused of crime against the laws of this State" or a "defendant" even though he might be suspected by the State Fire Inspector or by witnesses of having committed a crime. An analogous situation exists with respect to coroner's inquests. In, 14 American Jurisprudence, 884, Section 168, it is stated:
"As a coroner's inquest is merely a preliminary investigation and not a trial involving the merits, a suspected person has no right to appear by counsel and cross examine the witnesses, as the only object of such a course would be to prevent a full investigation, insofar as it might tend to incriminate him, thus defeating the purpose of the inquest."
(5) If at a hearing before the Fire Inspector, the one

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suspected of arson is present under subpa!na, can the Fire Inspector place that suspect under oath, or must the regular rule be followed that one accused of a crime in Georgia makes his statement not under oath, and is not subject to crossexamination?
Article 1, Section 1, Paragraph 6 of the Constitution (Code
Section 2-106 provides:
"No person shall be compelled to give testimony tending in any manner to incriminate him."
In the case of Minnesota vs. Rixon, 231 N. TV. 217, it was held:
"The State Fire Marshal, in virtue of sections 5956 to 5958, Mason's Minn. Statutes, 1927, by s.ubpa!na compelled defendants to appear before him and under oath answer questions directly accusing them of arson, and caused a transcript of said questions and answers to be given the grand jury which returned an indictment against defendants. It is held, this procedure was equivalent to compelling defendants to be witnesses against themselves in violation of Section 7 of
Article 1 of the State Consttiution."
The general rule as stated in 14 American Jurisprudence, 872,
Section 148, is as follows:
"Compelling a person to appear' before a nonjudicial officer or body investigating a criminal offense and give incriminating testimony concerning himself is generally held to constitute a violation of immunity from self-crimination guaranteed by constitutional provisions * * * even where a person is testifying in an investigation concerning other persons, if answers to questions asked will disclose criminal conduct on his part from which he is not protected, it is his right to decline to answer."
In the case of Empire Life Insurance Co. vs. Einstein, 12 Ga. App. 380, it was held:
. "As a general rule, it is the province of the court to determine the competency of both the evidence and the wit-
ness; * * * When, however, the witness is otherwise compe-
tent, he may decline to answer questions which tend to criminate him; and in this event the witness, and not the judge, is to determine whether the answer to the question propounded to him will have the effect of subjecting him to punishment for crime."

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INSURANCE-Retrospective rating plan for workmen's compensation violative of the State insurance laws.

Hon. Homer C. Parker, Insurance Commissioner.

February 3, 1941.

I acknowledge your letter of January 22, 1941, seeking my opinion as to whether a certain proposed retrospective rating plan for Workmen's Compensation Insurance attached to your letter is violative of the insurance laws of Georgia.

The retrospective rating plan has been submitted to the Insurance Commissioner of this State and by him to the Attorney General time and time again over a period of four or five years and each time the plan has received an adverse determination.

On several occasions the late Attorney General M. J. Yeomans ruled the plan violative of Georgia law and on October 3, 1938, when a modified plan was submitted to him, he wrote Hon. A. R. Wright, Deputy Insurance Commissioner, as follows:

"I have reviewed your file in this matter with particular reference to the suggested amendment to the plan as originally submitted. However, I am still of the opinion that the plan as now proposed cannot be approved consistently with the provisions of Georgia law."
In April, 1940, the identical plan as that inclosed was submitted to the present Attorney General who declined to overrule
the opinion of the late Attorney General M. J. Yeomans to the effect that the plan is violative of the insurance laws of Georgia. It is still my opinion that the proposed retrospective rating plan
offends the insurance laws of our State.

LIVE STOCK-Substitution of term "brucellosis" for "Bang's Disease", how. November 14, 1941.
Hon. Tom Linder, Commissioner of Agriculture.
I have your letter of November 12th, in which you enclosed a letter addressed to you under date of November 7th from Honorable H. C. Givens, Chairman Committee on Bang's Disease, U. S.

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Live Stock Sanitary Association, Richmond, Va. You ask my advice upon the question propounded in Mr. Givens' letter, to wit:
"Please advise me immediately what legislative change would be necessary in your State if the term 'Bang's disease' was dropped and the term 'brucellosis' substituted therefor?"
Neither your letter nor that of Mr. Givens indicates exactly from what "Bang's disease" is proposed to be dropped and the term "brucellosis" is propos.ed to be substituted therefor. For that reason, I am unable to deal with the question particularly, but I shall attempt an answer dealing with the question generally.
While the word "brucellosis" is a technical one, it is set forth in "Pathology and Therapeutics of the Diseases of Domestic Animals", by Hutyra, Marek and Manninger, Vol. 1, page 797. In that work it appears. that "brucellosis" of cattle is interchangeably used with Bang's disease andjor infectious abortion. Assuming that such is the proper definition of the term "brucellosis", I submit the following:
In Georgia Laws 1937, page 850, the duties and powers of the State Veterinarian in part are set forth. Under that law it is provided that the State Veterinarian shall have complete authority and responsibility in all livestock sanitary control work, such
as * * * contagious abortion control * * *. Under Georgia Laws
1941, page 238 the powers and duties formerly imposed by law upon the State Veterinarian were vested in the Commissioner of Agriculture.
Under Georgia Laws 1937, page 591, it was provided that Chapter 61-11 of the Code of Georgia of 1933 as amended relating to tuberculosis in domestic animals should apply in its entirety to the control and, if possible, the eradication of anthrax and Bang disease control, as well as to the eradication of bovine tuberculosis.
In the above cited laws I do not find the word "brucellosis." However, as above stated, if the term "brucellosis" has the same meaning and is interchangeable with the terms "Bang's disease" andjor "infectious abortion of cattle", I see no reason why the present laws above cited do not in their present state also apply to brucellosis.
If the answer attempted above does not reach the heart of the

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question you intended to ask, I shall be glad to give further consideration to it when and if you present the question in more particularity.

LIVE STOCK-State Veterinarian authorized to expend State funds appropriated to his department to immunize dogs against rabies.

Hon. J. M. Sutton, State Veterinarian.

January 3, 1941.

I am pleased to acknowledge receipt of your letter of January 2, 1941, in which you request my opinion as to whether or not your Department is authorized to spend State funds for paying a veterinarian to immunize dogs against rabies in quarantined areas set up by your Department.
Your authority to spend State money appropriated by the General Assembly to your Department depends. upon whether or not the project in question is a work or duty delegated to the State Veterinarian by law. The General Appropriation Act of 1937 (Georgia Laws 1937, p. 63) provides that 20% of all revenues allocated to the Department of Agriculture is reallocated to the State Veterinarian to pay all valid outstanding debts of the Veterinary Division, and to pay the e.r:penses of carrying on the various works and duties delegated to the State Veterinarian by law.

The Act of 1937 fixing the duties and powers of the St.ate Veterinarian (Acts of 1937, p. 850) contains. the following pro-
VISIOn:

"The duties of the State Veterinarian shall be to investigate and take proper measures for the control, suppression and, if possible, eradication of all contagious and infectious diseases among the domestic animals, live s.tock and fowls within this State under existing laws and such supplementary rules and regulations as may be promulgated by said State Veterinarian and approved by the Commissioner of Agriculture. The State Veterinarian shall have complete authority and responsibility in all live stock sanitary control work, such as tick eradication, hog cholera control, bovine tuberculosis eradication, contagious abortion control, rabies

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control, bacillary white diarrhea in chickens, and other communicable diseases of live stock, domestic animals or poultry and meat, milk and dairy inspection."
So, in view of what has been stated above, I am of the opinion that the State Veterinarian will be authorized to expend State funds appropriated to his Department for the purpose of paying a veterinarian to immunize dogs. against rabies where the State Veterinarian deems it necessary in order to effectively carry out his duties and the work delegated to him under the law.
MOTOR VEHICLES-Bicycles meeting other vehicles must pass to the right.
April 18, 1942.
Hon. William Brunson, Attorney at Law, Dublin, Georgia.
In answer to your letter inquiring as to whether or not this office has ever rendered an opinion dealing with the question of whether a bicycle should be ridden on the left or the right side of the street or highway, I am pleased to advise that on February 7, 1940, the Attorney General rendered an opinion to the Commissioner of Public Safety as follows:
"I am pleased to acknowledge receipt of your inquiry of January 26, 1940, asking for a ruling on the manner in which bicycles should be ridden, whether on the left of right side of the street or highway.
"The rule of the road as set forth in Section 105-112 of the Code of 1933 is:
"The rule of the road requires travelers with vehicles when meeting to each turn to the right."
"Section 68-101 of the Code of 1933 defines 'vehicles' as. 'any contrivance used for transportation of persons or property on public highways.' In this same Code section 'motor vehicle' and 'motorcycle' are each defined so as to distinguish that kind of vehicle from other kinds of vehicles used on the public highways. It also defines. tractors and trailers. Then throughout the law in reference to motor vehicles and traffic regulations, the word 'vehicles' is used in the statutes so as to distinguish them from other vehicles.
"Section 38-309 of the Code of 1933 gives equal rights

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on the highways to all persons, regardless of the method of travel.
"The rule of the road as set forth in Section 105-112 as quoted above is to be taken in connection with Section 68-303, subparagraph (b), of the Code of 1933, which requires that:
"An operator of a vehicle overtaking another vehicle going in the same direction and desiring to pass the same, shall pass to the left of the vehicle overtakep., etc." _
"So, taking the two rules together, it simply means. that vehicles meeting each other shall each turn to the right so as to let the other pass, and when the operator of a vehicle desires to pass another vehicle, the rule requires that he turn to the left. In the case of bicycles, if this rule did not apply, it is easy to see what confusion would follow if the operator of a bicycle operated his vehicle according to a different rule than that required of motor vehicles, and in this connection Section 68-305 of the Code of 1933 should be observed, which reads as follows:
"Whenever any operator of a motor vehicle or motorcycle shall meet on a public street or highway any person or persons riding or driving one or more horses or any other animal, or any other vehicle approaching in the opposite direction, the operator shall turn his vehicle to the right so as to give one-half of the traveled roadway if practicable and a fair opportunity to the other to pass by without unnecessary interference, and if traveling in the same direction, he shall pass to the left side of the person or vehicle overtaken, and the person or vehicle overtaken shall give him a fair opportunity to pass."
"So, it is clearly apparent that in the case of a bicycle no rule could apply other than the rules hereinbefore quoted. Therefore, I do not hesitate to hold that those riding bicycleS. upon streets or highways of this state should observe the same traffic regulations as set forth above."
MOTOR VEHICLES-Trucks used by county unit fire pro-
tective organization exempt from Federal Use Stamp Tax.
January 27, 1942.
Hon. W. D. Young,
Assistant Director in Charge of Fire Protection,
Division of Forestry.
This will acknowledge yours of the 27th instant requesting
an opinion as to whether trucks owned by the State and used by

132
the county unit fire protective organizations and timber protective organizations for the purposes authorized under the ClarkeMcNary Act are required to bear the Federal Use Tax Stamps.
In Section 557 of the Revenue Act of 1941 there is. imposed
upon the use of motor vehicles and boats a use tax. Subsection J
of said Section specifically provides :
"The tax imposed by this section shall not apply to the use of a motor vehicle or boat by the United States, a State, territory, the District of Columbia, or a political sub-division of any of the foregoing." Accordingly, I am of the opinion that the aforesaid trucks, owned by the State of Georgia, and used by it for the purposes aforesaid, are specifically exempted under. the Act from the requirements of obtaining a Federal Use Tax Stamp.

COMMERCIAL NOTARIES PUBLIC-Citizenship requirement for appointment.

Miss Ella May Thornton, State Librarian.

April 17, 1941.

I am pleased to acknowledge yours of the 16th instant stating
you have received the application of J. L. Marks to be appointed
Notary Public, State at Large, and that the applicant stated that he had been a resident of Florida for fifteen years and had served a long term there as Notary Public, his commission, as you understand it, being still in force; and further stating that he has been in Georgia three days. You request a written opinion "as to what (you) shall do in the matter, citing to (you) the authority, if any, that permits (you) to accept him as qualified to hold the public office of Notary Public, State at Large, in Georgia."

I note the statement in your letter that no resident or citizen of any other State has ever been appointed to the office of Notary Public, Georgia, State at Large, and residents and citizens of Florida and South Carolina doing business in Georgia have frequently been refused appointment.

I assume _that Mr. Marks made his application for appointment upon the regular form used in such matters, as your letter

133
discloses nothing to the contrary. I have a copy of said printed form befo:r;e me and it reads in part as follows:
"To the Honorable, the State Librarian of Georgia: The petition of .......................... of ........... . County, Georgia, shows -that petitioner is a citizen and resident of said county; that petitioner is twenty-one years of age, and desires to be appointed a Notary Public for the State at Large, for the term provided by the laws of said State, and prays that your petitioner be so appointed."
I assume also that the application is accompanied by the duly executed certificate of two freeholders of the State certifying that the applicant is twenty-one years of age and of good moral character and a citizen of the County of .............. of this. State.
From your letter it is apparent that the only question troubling you with reference to the issuance of this commission is whether or not the applicant is a citizen of the State of Georgia.
As you know, the State Librarian, under Chapter 71-2 of the Code of Georgia of 1933, has the power to appoint Notaries Public for the State at Large (Code Section 71-201), and the qualifications, duties, powers, fees, and liabilities of such Notaries Public are prescribed in Section 71-205 which reads:
"The qualifications, powers, duties, fees, and liabilities of such Notaries shall be the same as those prescribed by law for Notaries Public appointed by judges of the Superior Court, except that they are authorized to act in any county in this State instead of only in the County of their residence and appointment; this Chapter not being intended in any manner to repeal or modify the law with reference to Notaries Public appointed by judges. of the Superior Court, but to create another class of Notaries with power to act in any county in Georgia."
The reference to Notaries Public appointed by judges of the Superior Court necessarily requires us to consider the qualifications prescribed for such Notaries as set out in Section 71-102 of
the Code which reads:
"A Notary must be twenty-one years old, or an attorney at law, and of good moral character."
It will be noted that neither Section 71-102 nor 71-205 prescribes residence or citizenship in this State as a qualification of an ap-

134
plicant for appointment as a Notary Public. However, in view of Section 89-101 ( 1) of the Code, citizenship is a necessary qualifi- cation of persons holding "any civil office" in this State.
Smith & Bondurant vs. Meador, 74 Ga. 416 (1),
it was held,
"Notaries Public for commercial purposes are public officers."
By the same token, therefore, a Notary Public, State. at Large, is a public officer and under Section 89-101 a person who is not a citizen of this State would be ineligible to hold said office. The question is, therefore: Is applicant a citizen of this State?
Article 1, Section 1, Paragraph 25 of our Constitution provides:
"All citizens of the United States, resident in this State, are hereby declared citizens of this State, and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges and immunities due to such citizenship." See also Code Section 79-201. (Italics supplied.)
Among the rights of citizens as enumerated in Code Section 79-205 are "the rights to hold office unless disqualified by the Constitution and Iaws." (Italics supplied.)
Bearing upon the question as to whether the applicant in this case is a citizen of this State, Section 79-406 of the Code provides:
"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."
It will be noted that two essentials are required by this Section before a person may change his or her domicile: ( 1) An actual change of residence, and (2) With the avowed intention of remaining. Your letter states only that the applicant has stated that "he had been a resident of Florida for fifteen years." The petition of applicant, I assume, states that he "is a ciitzen and resident" of this State. There is no fact contained in your letter to dispute this allegation in his petition. This allegation is supported, I

135
assume, by the certificate of two freeholders of this State to the effect that applicant is "a citizen of" a named county of this State.
In the case of,
Harkins vs. Arnold, 46 Ga. 615,
our Supreme Court held that the question of domicile is one of fact, under the circumstances, and it is a questio~ for a jury to determine in any case involving such question. Likewise in this case it is a question of fact as to whether Mr. Marks is a resident of this State, in that he has changed his domicile from that of Florida to Georgia.
I have endeavored to give you the law relating to the issuance of Notaries commissions and with reference to citizenship. I trust that you will be able to apply the law as set out above to the facts in the case before you.
I might add that while residence in this State for a period of one year, and in a given county for a period of six months, that is, for a sufficient length of time to qualify a person as a voter (under Article 2, Section 1, Paragraph 3 of the State Constitution), would be highly persuasive that such a person so residing is a resident of this State, nevertheless there is no requirement in our Constitution or laws that a person must have resided in this State for any given length of time before he shall be deemed to be a citizen. In fact, I am of the opinion that a person could become a citizen of this State overnight and when and if such person acquired the status of a citizen (and possesses the other qualifications set out in Code Section 71-102), he would be eligible upon filing an application in the proper form, to be appointed as a Notary Public, State at Large. What has just been said would not be true if we were dealing with the right of a citizen to become a county officer, for Code Section 89-101 (7) requires as a condition of eligibility of a person to hold a county office that he shall have been a bona fide citizen "of the county in which he shall be elected or appointed at least two years prior to his election or appointment" and that he be "a qualified voter entitled to vote." That a Notary Public is not a county officer within the meaning of this section of the code see
Overton vs. Gandy, 170 Ga. 562 (2).

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In conclusion and answering specifically your request as to what you should "do in the matter", I am of the opinion that your actions'should be controlled by the facts. in the case. That is to say, if you have facts or evidence before you that Mr. Marks is not a citizen of this State, then you should not issue the commission. If on the other hand you have no facts or evidence to rebut the allegations of the applicant, supported by the certificate of two freeholders of this State, that applicant is a citizen of this State and of the county named in his petition, then you should issue a commission.
COMMERCIAL NOTARIES PUBLIC-Eligibility of persons serving in the armed forces for appointment.
October 18, 1941.
Miss Ella May Thornton, State Librarian.
This will acknowledge yours of the 15th instant requesting an opinion as to the eligibility of persons serving in the United States Army to be appointed Notaries Public, State at Large, your letter stating that you have applications from three Mas.ter Sergeants in the Fourth Division at Fort Benning, Georgia, and that one of these applicants states that he has been a resident and a property owner in the City of Columbus, Georgia, for over a year and is required to pay the Georgia State income tax, while another writes that "according to War Department regulations and the regulations of the motor vehicle laws of Georgia he is now a permanent resident of Georgia, having been permanently assigned for duty at Fort Benning, living in Columbus, Georgia, and subject to all State laws and regulations, except that he cannot vote due to his military status.
Being a public officer, a Notary Public must be a citizen of this State. See Code Section 89-101. In this connection Code Section 79-201 provides that "all citizens of the United States, resident in this State, are hereby declared citizens of this State," and Code Section 79-401 provides:
"The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this State. If he has no

137
family, or they do not reside in this State, the place where such pperson shall generally lodge shall be considered his domicile."
Code Section 79-406 provides :
"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." In the case of
Dicks v. Dicks, 177 Ga. 379,
the Supreme Court had under consideration the question as to whether an officer or enlisted man in the armed services of the United States could acquire a domicile in the State of Georgia while stationed upon the Federal reservation known as Fort Benning, over which exclusive jurisdiction was ceded to the United States under the Act of 1927 (Georgia Laws 1927, page 352). The facts were that Lieut. Dicks, who had filed a suit for divorce in the Superior Court of Muscogee County, was born and educated in South Carolina, entered the military service of the United States at the age of 21, was discharged upon the signing of the World War Armistice, returned to South Carolina, where he remained until he re-entered the Army in 1923. He married the defendant at Augusta, Georgia, on April 3, 1919. Since re-entering the Army, he had been s.tationed at Fort McPherson, on the Island of Porto Rico and at Fort Snelling, Minnesota. At his own request he was stationed at Fort Benning on September 9, 1931, and declared Fort Benning to be his residence. He was subject to be assigned to another post of duty at any time upon the order of his superiors, but he always claimed the Fort as his home for all purposes, although he had not registered for the purpose of becoming a voter or made any tax returns in Georgia. He had procured an automobile license in Georgia. The only property he owned was an automobile, a watch and a few uniforms. He and his wife had entered into an agreement of separation on January 30, 1930, while he was at Fort Snelling, Minnesota, and had lived in a bona fide state of separation ever since, although Mrs. Dicks later moved to Columbus and lived in a rented house in order to be near Lieut. Dicks, who had

138
one of their children in his custody. Under these facts the court held that Lieut. Dicks did not acquire a domicile in this State because for the purpose of determining his domicile the Fort Benning reservation was not to be treated as a part of the State of Georgia, since exclusive jurisdiction thereover was ceded to the United States.
In the course of this well considered opinion Justice Gilbert cites many cas.es involving similar questions and points out "that over Army posts and like government reservations purchased by the United States and ceded by the States, under the Constitution, the Federal Government has power to exercise exclusive legislation. Where it has not exercised the power, the laws of the State previously existing may be exercised. Nevertheless, an officer or enlisted man residing on a Government Army Post cannot acquire a domicile thereon, unless permitted so to do by the United States." He draws a distinction, however, with respect to instances where an officer or enlisted man is permitted to reside off the government reservation and points. out that such officer, if allowed by proper authorities, may establish a domicile in Georgia outside the Army Post; and if acquired twelve months prior to the filing of his petition, the Superior Court in this State would have jurisdiction of the case." (Meaning jurisdiction of a divorce case.)
In Kennan on "Residence and Domicile," page 870, it is stated with reference to soldiers that "they do not acquire or lose a domicile for voting purposes by reason of their presence in the place where stationed, but are not barred from acquiring a residence in such place independently of their presence as soldiers. Thus a soldier stationed at a fort for a long period, in time of peace, might procure a house nearby and remove his wife and family to it, intending in good faith to establish his sole and only domicile there. Or, the soldier may have been an elector of the district where he is stationed, prior to his enlistment, in which case his right to vote would hardly be denied. It is true that upon the question of whether an officer or soldier in actual service can acquire a domicile in the Army Post or Camp where he is stationed, even though he establishes his family there, the numerical weight of judicial authority would seem to

139
answer that question in the negative. But there is a growing tendency to recogsize certain possible exceptions to that rule, especially in times of peace, as indicated in such cases as
In Re Cunningham, 45 Misc. Reports 206, 91 N. Y. S. 974.
In these cases it is conceded that on officer or private may establish a home near his military station and thus acquire a domicile there, but, of course, this must be clearly established by independent evidence."
Accordingly, I am of the opinion that an officer or soldier who is a resident of some other State and enlists in the Army and during his service therein remains stationed upon a Federal military reservation does not thereby acquire a legal es.idence or domocile in this State. This is true because the Army Post is not a part of this State and in order to constitute a change of residence from the State of his origin, it would be required that the soldier move to this State with the intention of making it his permanent home.
On the other hand, if an officer or enlisted man, sui juris, who is a resident at the time of his enlistment of another State comes to Georgia and is permitted by his superior officers to establish a home outside the military reservation and in the State of Georgia, he may acquire a domicile here and would, if otherwise eligible, be eligible for appointment as a Notary Public for the State at Large.
Under the requirements of Code Section 79-401, if the officer or enlisted man has a family, it would be pertinent to inquire whether "the family of such person" permanently resides in this State; and ff the officer or enlisted man has no family, or his family does not reside in this State, it would be pertinent to inquire whether his place of lodging is located outside the government military reservation.
With these general principles in mind, I feel that you will have no trouble in applying the law to the facts in eash particular instance and determining whether or not the applicant for a commission as a Notary is qualified in the sense that he is a resident of this State.

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COMMERCIAL NOTARIES PUBLIC-Powers.
November 17, 1941.
Hon. Alexander Campbell, Notary Public State at Large, Surrency, Georgia.
You ask that I write you as to the powers of a Notary Public.
I assume from the way in which you sign your name and give your title that yor are a commercial Notary Public for the State at Large and that you received your certificate of authority from the State Librarian at the State Capitol in Atlanta. Assuming, therefore, that you are not a Notary Public Ex-Officia Justice of the Peace appointed by the grand jury of your county, but that you are a commercial Notary Public as suggested first above, I can only refer you to the Code of Georgia of 1933,
Section 71-108, which said section provides as follows:
"Authority.-Notaries public shall have authority-!. To take the acknowledgements of all writings relating to commerce or navigation and to witness deeds and papers as they are permitted to by law.
2. To demand acceptance and payment of all commercial paper and to note and protest the same for nonacceptance or nonpayment.
3. To certify to all official acts when required. 4. To administer oaths in all matters incidental to their duties as commercial officers, and all other oaths. which are not by law required to be administered by a particular officer. 5. To exercise all other powers incumbent upon them by commercial usage or the laws of this State."
PENAL INSTITUTIONS-Compensation of Clerks of Superior Court for recording parole orders.
January 3rd, 1942. Hon. E. A. Williams, Secretary, State Prison and Parole Commission.
This will acknowledge yours of December 24th, 1941, requesting, on behalf of the Commission, an opinion as to whether

141
or not clerks of the superior court are entitled to any fees or compensation for recording parole orders.
In 1908 the General Assembly passed an Act, the title of which was, "An Act to Create a System of Parole or Conditional Pardons of Prisoners Convicted of Crime and for Other Purposes." Section 2 of this Act dealt with the manner of making applications for parole and prescribed the conditions under which such paroles might be granted. This Section concluded with the following language:
"That it shall be the duty of said Commission to cause a certified copy of its order granting said parole and the terms and conditions of the same to be sent to the clerk of the county wherein said prisoner was convicted, which shall be duly entered of record in said clerk's office in a book to be kept for that purpose." (Ga. Laws 1908, p. 1117.)
This provision of the law was codified as Section 1225 of the Penal Code of 1910 and as Section 77-504 of the Code of 1933. At the Extraordinary Session of 1937-38 (Ga. Laws, Ex. Sess. 37-38, p. 276), this Code Section was re-enacted with minor changes, but no -change was made in the language of the last sentence as quoted above with reference to the recordation of the parole orders of the Commission.
It will be observed that this statute first makes it the duty of the Commission to send the Clerk of the court of the county wherein the prisoner was convicted certified copies of the parole orders; and then it makes it the duty of these clerks to record the same in a book kept for that purpose. Under the scale of fees allowed by law to clerks of the superior courts as enumerated in Code Section 24-2727 several specific fees are prescribed for the recording of various instruments and proceedings and then there appears this item "recording any instrument of writing not specified, per 100 words ... 15c." I am, therefore, of the opinion that the language of this Section is broad enough to include the allowance and payment by the Commission of the aforesaid fee to any clerk recording a parole order.

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PENAL INSTITUTIONS-Compensation of Clerks. of Supperior Court for recording parole orders.

Hon. E. A. Williams, Secretary, State Prison and Parole Commission.

January 17, 1942.

This will acknowledge yours of the 9th instant referring to my opinion of January 3, 1942, about the fees of clerks for recording parole orders, and requesting my further opinion on the question as to whether there is any law which makes it the duty' of the State of Georgia or of the State Prison and Parole Commission to pay a fee to the clerks of court of the State for their services in recording parole orders ; and whether there has ever been an appropriation by the Legislature to cover an expenditure for this purpose. In my previous opinion I pointed out that it had been law since 1908 that the Prison Commission must "cause a certified copy of its order" granting any parole and the terms and conditions thereof "to be sent to the clerk of the court of the county wherein said prisoner was convicted." There is, of course, no statute which expressly says that the Commission must bear the expense of having the same recorded. However, since the law imposes on the Commission the duties referred to above, I am of the opinion that the courts would hold that by necessary implication the Commission is required to pay for the cost of recording the order. There is nothing in the law to indicate that the clerk is required to record this order without the payment of any fee. In fact, the contrary is true.

Answering your second question, I am of the opinion that there is now an appropriation to the Commission out of which an expenditure for the purpose of recording these parole orders is authorized. I refer to Section 2 of the General Appropriations Act of 1937 (Ga. Laws 1937, p. 66), making appropriations for the two years ending June 30th, 1939. Sub-section A of this Section contains an appropriation of $40,000.00 "for the operating cost of the Commission and for rewards for arrests of felons." I am of the opinion that due to the operation of Section 30 of this same Act, this appropriation is still in effect and that fees to clerks for recording parole orders could be properly charged as an operating cost of the Commission and paid out of said ap-

propriation.

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PENAL INSTITUTIONS-Convict serving part of sentence outside of confines of jail, how term computed.
October 16, 1941.
Hon. Vivian Stanley, Commissioner, State Prison and Parole Commission.
Re: Misdemeanor Prisoner, Convicted in Wheeler County.
This will acknowledge receipt of the certified copy of the original sentence, order of probation and order revoking probation in the above stated case requested in my letter of the lOth instant. You request advice as to whether under the record in this case this prisoner will be required to serve the full twelve months from the date of the revocation of the probation, which was June 18, 1941.
The certified copy of the sentence in this case shows that defendant was sentenced to work on the Public Work Camp "for the term of twelve months to be computed from this date . . . and to pay a fine of $50.00, to include all costs of this prosecution, and thence be discharged." The sentence further provided that upon the payment of the fine of $50.00 defendant might serve said sentence under probation outside the confines of said Public Work Camp upon the condition that his behavior would be good, etc. The sentence was .dated October 3, 1940. The probation was revoked on June 18, 1941, by Judge Eschol Graham.
In the case of Wimbish v. Reece, 170 Ga. 64(4),
it was held that
"Where the court s.o moulds its sentence as to allow the convict to serve his sentence outside the confines of the chaingang or jail under the supervision of the court, although the probation may be revoked, still, after a hearing; the order granting probation is revoked, the time served by the convict under the order and sentence prior to the revocation must be counted in favor of the defendant and deducted from the period of service imposed."
In said case it appeared that the convict had served under the order of probation from April 10, 1928 to September 4, 1928 (five months and fourteen days.) and thereafter, when the order

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of probation had been revoked, served in the chain-gang from
October 8, 1928 to May 7, 1929 (six months and twenty-nine
days), making a period in all of twelve months and thirteen days served outside and inside the chain-gang before a petition for habeas corpus was filed on May 7, 1929. The court held that the prisoner had completed the original twelve months sentence imposed by the court and was entitled to be discharged from the custody of the county warden of Bibb County.
Accordingly, I am of the opinion that the twelve months sentence imposed in the case under discussion has been fully served, when the time served upon probation is counted in, as we are required to do under the decision in the Wimbish case, supra. This prisoner should be discharged.

PROFESSIONS; ACCOUNTANTS-Board clothed with discretion to determine whether applicant for license is of good moral character.

Hon. Brooks Geoghegan, Chairman, Georgia State Board of Accountancy, Macon, Georgia.

June 9, 1941.

This will acknowledge receipt of your letter of June 2nd inclosing your file with reference to an application for a certificate or license to practice as a Certified Public Accountant. You inquire:

"Under the instruction of the Members of the Board, this letter is being addressed to you asking that you advise us if in view of all of these facts., the Georgia State Board could be forced to issue the applicant a certificate in event he should bring mandamus action against the Board. Also, if in your opinion the Board should do so."
I am returning your file with this letter as you request..

Chapter 84-2 of the Georgia Code of 1933 was amended by an Act approved March 28, 1935, (Ga. Laws 1935, pages 85, 94), by adding a new Section to be numbered 84-207 and which reads in part as follows:

"Applicants for certificates as certified public accountants must be citizens of the United States and residents of

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this State, over the age of 21 years, and of good moral character."
Section 84-204 which was also added by the Act of 1935, provides in part :
"The Board may require applicants to appear personally or oral examination, and may require the production of such documentary evidence as the Board may deem necessary to establish the qualifications of the applicant."
Section 84-208 which was also added to that Chapter of the Code by the Act of 1935, provides in part:
"If such applicant satisfactorily passes such examination, and complies with this law and the rules and regulations of the Board, he shall be certified by the Board as a certified public accountant."
The question of whether an applicant is of good moral character so as to be entitled to a certificate as a certified public accountant, if he passes the examination, is left to the discretion of the Board. While the Board cannot arbitrarily abuse its discretion, or refuse to exercise it, it may determine whether the evidence submitted is sufficient to show that the applicant is or is not of good moral character. Mandamus will not lie to compel the manner in which the Board exercises its discretion unless there is a gross abuse of such discretion.
Section 64-102 of the Code provides in part:
"Mandamus shall not lie as a private remedy between individuals to enforce private rights, nor to a public officer who has an absolute discretion to act or not, unless there is a gross abuse of such discretion; ...................... " In the case of
Cody vs. Boykin, 163 Ga. 1,
the Supreme Court quoted with approval from Jackson vs. Cochran, 134 Ga. 397, as follows:
" 'It is only practicable by mandamus to compel performance of specific acts, where the duty to discharge them is clear and well defined, and when no element of discretion is involved in the performance.' Where the officer has a discretion in the matter, the court may by this means compel him to exercise his discretion, but can not direct in what manner he shall exercise it."

146
In
Douglas vs. Board of Education of Johnson Co. 164 Ga. 271,
it was held:
"While mandamus is an appropriate remedy to enforce the performance by a public officer of any public duty which he neglects or refuses to perform, it is not available to compel the performance of an act which such officer is not by law required to perform, but, to the contrary, is clothed with discretionary power which he may exercise in accord~ ance with the best interest of the trust which he is authorized to administer."
In
State vs. State Board of Certified Public Accountants, 131 Sou. 32,
it appeared that an applicant for a certificate as an accountant
from the State of Louisiana had been denied such certificate,
after hearing, on the grounds that he failed to satisfy the Board as to his good moral character. Evidence had been submitted at the hearing on both sides of the issue. The Louisiana Act
authorized the granting of certificates to applicants "who shall satisfy the State Board of Certified Public Accountants as to
their good moral character and profession,al experience." The Supreme Court of Louisiana said:
"The Legislature has seen proper to create the board and to vest it with the power to determine to its satisfaction whether the applicant for a certificate as a certified public accountant, or simply as a public accountant, possesses the required qualifications, including the qualification of good moral character. When the qualification of the applicant as to good moral character is regularly determined, and in determining it he is not deprived of his legal rights, or of the law of the land, the ruling of the board is final, and its finding of fact must be considered correct, for it is not the courts that are vested with the power to determine whether in truth the applicant's character is good, but it is the board that is vested with that power, and it is only upon legal questions involved that the appeal lies to the courts. Under the clear wording of subsection of Section 2 of the Act, unless the applicant satisfies the board of his good moral character he is not entitled to the certificate."

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It is my optmon, therefore, that while the applicant could by mandamus, compel the Board to exercise its discretion, he could not control the manner in which that discretion is exercised unless it should be grossly abused. If the Board should have satisfactory evidence that the applicant was not of good moral character there would be no abuse of discretion in refusing the application for a certificate.
It would not be proper for me to advise the Board what action to take under the facts of the instant case. That question is the one which the General Assembly has granted the Board the jurisdiction to consider and determine.

PROFESSIONS; ACCOUNTANTS-Licensed Certified Public Accountant may practice under trade name of hims.elf "and Company" provided all his associates are duly licensed.

Hon. R. C. Coleman, Joint-Secretary, State Examing Boards.

July 28, 1941.

This will acknowledge receipt of your letter of July 24th in which you state that the Georgia State Board of Accountancy has requested an opinion as to whether or not it is lawful for a Certified Public Accountant to practice under a trade name or use the words "and Company" following his name without having a Certified Public Accountant as associate or partner.

Section 13 of the Act approved March 28, 1935, (Ga. Laws
1935, pages 85, 94) added a new Section to Chapter 84-2 of the
Georgia Code of 1933 to be numbered 84-213 and to read as
follows:
"It shall be unlawful: For any person other than a certified public accountant, certified and registered as provided by this Chapter, to practice as a certified public accountant, or hold himself out as, or assume to practice as a certified public accountant, or use the term 'Certified Public Accountant,' or the abbreviation 'C. P. A.' or otherwise employ any designation, as a member of a firm or otherwise, calculated to deceive the public or convey the impression that such person is a certified public accountant; for any member of a firm or association to announce or state in writing or printing, by advertisement or otherwise, that such firm is

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practicing as 'Certified Public Accountants' unless all members of the firm are holders of valid and unrevoked certificates and are certified public accountants within the meaning of this Chapter; for any person to practice as a certified public accountant if his certificate has been revoked, or during any suspension thereof, or without renewing his registration card annually, as provided by this Chapter; for any person to buy, sell, give or obtain a certificate as a certified public accountant in any manner other than that provided by this Chapter, or to practice or attempt to practice under any such certificate obtained other than that provided for in this Chapter; for any certified public accountant to knowingly certify to any false or fraudulent report, certificate, exhibit, schedule or statement."
It is clear from the foregoing provision that if two or more persons forming a firm or associate themselves in business and hold out to the public that such firm or association is practicing as certified public accountants, all of the members of the firm or association must be holders of valid and unrevoked certificates. However, there is no specific prohibition against a certified public accountant using a trade name in the practice of his profession.
Section 84-213 of the Code being a penal provision, must be strictly construed, and in cases of doubt, should be construed most strongly against the State.
Pacolet Mfg. Co. vs. Weiss, 185 Ga. 287.
The meaning of its language must not be extended beyond the plain and explicit terms of the statute.
Thompson vs. Johnson, 186 Ga. 396.
Bearing in mind the strict construction which must be placed upon penal statutes, I do not believe that it would be a violation of Section 84-213 of the Code for a person having a valid and unrevoked certificate to practice as a certified public accountant under a trade name or use the words "and Company" following his name so long as he does not have as associate or partner a person who does not hold a valid and unrevoked certificate. It would seem to be the primary purpose of Section 84-213 to reach those persons who are holding themselves out as certified public accountants but who in fact do not have a valid and unrevoked certificate.

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It is my opmwn, therefore, that it is not unlawful for a certified public accountant to practice under a trade name or use the words "and Company" following his name without having a certified public accountant as an associate or partner. If, however, he does have an associate or partner and advertises that the firm is practicing as certified public accountants, all associates partners or members of the firm must hold valid and unrevoked certificates.

PROFESSIONS; ACCOUNTANTS-Non-residents may qualify for license and practice, how.

Hon. R. C. Coleman, Joint Secretary, State Examing Boards.

July 25, 1941.

This will acknowledge receipt of your letter of July 23rd, in which you request an opinion as to whether or not certified public accountants of other States not residing in Georgia may practice as certified public accountants in Georgia providing they register annually as non-residents. Your attention is called to Sections 11 and 12 of an Act approved March 28th, 1925, (Ga. Laws 1935, pp. 85-94) which provide as follows:

"Section 11. That Title 84 ('Professions, businesses and trades'), Chapter 84-2 ('Accountants') of the Code of Georgia of 1933, be and the same is hereby amended by adding a new section to be numbered 84-211, and to read as follows:
'84-211. The holder of a valid and unrevoked certificate as a certified public accountant, or its equivalent, issued under the authority of any State or political subdivision of the State, or any foreign country, who is not a resident of the State of Georgia, may practice accountancy in this State by registering with the Board on or before January 1, of each year, and paying a fee of $10.00. Upon the payment of such fee the Board shall issue a certificate of such registration, provided that this fee shall not be assessed against residents of States not assessing residents of this State.'
"Section 12. That Title 84 ('Professions, business, and trades'), Chapter 84-2 ('Accountants') of the Code of Gear-

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gia of 1933, be and the same is hereby amended by adding a new section to be numbered 84-212, and to read as follows :
'84-212. Any person who has received from the Board a certificate as herein provided for shall be known as a "certified public accountant" and shall be authorized to practice as such, and to use such title, or the abbreviation "CPA" in so doing.' "
It seems clear from the foregoing provisions of the Act of 1935 that a person who is not a resident of the State of Georgia but who holds a valid and unrevoked certificate as' a certified public accountant or its equivalent issued under the authority of any State or political subdivision of the State or any foreign country is entitled to a certificate of registration and may practice accountancy in this State by registering with the Board on or before January 1 of each year and by paying a fee of $10.00. The fee is not to be assessed against residents of States not assessing residents of this State. A person who has received such certificate from the Board is authorized under the provisions of Section 84-212 of the Code to. practice as a "certified public accountant" and to use such title Or' the abbreviation "CPA" in so doing, Of course, before the non-resident holder of a certificate as a certified public accountant from another State may practice as such in this State it must appear that his certificate from the other State is valid and unrevoked and it must further apppear that he has registered with the Georgia State Board of Accountancy for the year in which he seeks to practice in Georgia as a certified public accountant and has paid the fee fixed by the provisions of Section 84-211 in those cases where such fee is required.

PROFESSIONS; ACCOUNTANTS-Residence requirement for license as affected by military service.

Hon. Brooks Geoghegan, Chairman, Georgia State Board of Accountancy.

March 13, 1941

This will acknowledge receipt of your letter of February 27th in which you state:

"The question has arisen concerning applicants for examination or certificate as a C. P. A. as to whether Section 84-207 of the Georgia Code with reference to qualifications

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of applicants for a certificate or examination wherein it states 'such applicants must have had at least three years' continuous experience in public accounting immediately preceding the date of issuance of a certificate' would apply where said applicant was called into military service of the United States or its possessions."
You further inquire as to whether the Board, could waive this restriction in view of the several laws passed by <;:ongress in connection with the granting of extensions and privileges during the period of emergency.
I sincerely regret the delay in answering your letter which has been occasioned by the pressure of work on this office during the session of the General Assembly.
Section 84-207 of the Georgia Code of 1933, provides in part:
"Applicants for certificates as certified public accountants must be citizens of the United States and residents of this State, over the age of 21 years, and of good moral character. They must have completed at least a four-year high school course, or have received the equivalent in commercial experience in accounting prior to the date of application, the value of any such experience to be determined by the Board. Such applicants must have had at least three years' continuous experience in public accounting immediately preceding the date of issuance of certificate. . . . ."
Section 84-202 which deals with the duties and powers of the Board, provides in part :
"Said State Board of Accountancy is charged with the duty of administering and enforcing this Chapter, and shall have the power to make and promulgate rules and regulations not inconsistent with this Chapter; ...."
It is apparent that the Board does not have the authority under Section 84-202 of the Code to promulgate any rule or regulation waiving any of the provisions of Section 84-207 of the Code except in those instanoes where the Board is specifically given that authority under the provisions of Section 84-207. Any other waiver of such provisions would be "inconsistent" with the provisions of that Section. I do not believe, therefore, that the Board possesses such authority under the provisions of the Georgia Act. If any applicant for a certificate is relieved of the pro-

152
vision requiring three years' continuous experience in public accounting immediately preceding the date of issuance of a certificate, it would be because of an Act of Congress granting such extension or privilege during the period of emergency while such applicant was in the military service of the United States or its possessions.
I have examined the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, and am unable to find any provision of that Act which might be construed as relieving a person in the military service of the United States or its possessions of the provisions to which you refer. That Act deals with court proceedings, rent, installment contracts, mortgages, insurance, taxes and public lands, etc. If you will recall, a similar Act was passed in March 1918. In the case of
Wood vs. Vogel} 87 Sou. 175}
the Supreme Court of Alabama had under consideration the question of whether a person whose property was sold under a power of sale, and who was called into the military service before the period for redeeming the property under the Alabama law had expired, was entitled to redeem the property after his return, the redemption time expiring while he was in the military service. The Supreme Court of Alabama pointed out in that case that the Soldiers' and Sailors' Civil Relief Act did not apply to the sale made under the power of sale because that occurred before the passage of such Act and the Act was only prospective in its operation. It further held:
"The right of redemption given by Code 1907, Section 5746 et. seq., from judicial and quasi judicial sales is a mere personal privilege, and must be exercised within the two years pr-escribed; hence the Soldiers' and Sailors' Relief Act. (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, Section 3078~c), declaring that the period of military service shall not be included in computing any period of limitation, does not apply so as to extend the time within which the right of redemption may be exercised."
In the case of
Taylor vs. McGregor State Bank} 174 N. W. 893}
the Supreme Court of Minnesota held that the Soldiers' and Sailors' Civil Relief Act of 1918 was designed and intended to

153
authorize and require in particular instances the restraint and stay of judicial proceedings commenced in any State or federal court for the enforcement of pecuniary obligations against those in the military service of the United States; but it has. no application to the non-judicial proceeding for the foreclosure of a real estate mortgage by advertisement, as authorized by our statutes, which was fully completed by a sale of .the mortgaged property prior to the commencement of the military service of soldier affected, though the period of redemption had not then expired.
While the decisions hereinabove cited are not specifically in point, they do illustrate the tendency of the courts to limit the application of acts similar to the Soldiers.' and Sailors' Civil Relief Act of 1940 to the specific instances set out in such acts. While I am fully cognizant of the hardship which will be imposed upon persons preparing to apply for a certificate, I do not believe that the Board under the present law, has the authority to waive the provision you refer to. It is a matter which should be corrected, but the proper authority to change thel existing law is the General Assembly and not the Board, by waiving any of its provisions, or the Attorney General, by a construction which would do violence to the clear letter. of the law.
PROFESSIONS; CHIROPRACTORS-Are not authorized to use electricity (except electricity X-ray photography) colonic irrigation, sweat baths, or any therapeutic means other than hands.
March 12, 1941. Hon. E. H. Anderson, President, Georgia State Board of Chiropractic Examiners.
This will acknowledge receipt of your letter of February 24th, in which you inquire if a person practicing under the chiropractic laws in Georgia can use electricity, colonic irrigation, sweat baths., or any therapeutic means other than his hands and still be within his legal rights. You further inquire that if the answer to the above question is in the negative, then whose duty is it to try to stop such practice.

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Section 84-501 of the Georgia Code of 1933 provides:
"The term 'chiropractic' as used in this Chapter means the adjustment of the articulation of the human body, including ilium, sacrum and coccyx, and in the us.e of electricity X-ray photography, but the X-ray shall not be used for therapeutical purposes."
Section 84-509 provides:
"Chiropractors who have complied with the provisions of this Chapter shall have the right to adjust patients according to specific chiropractic methods and shall observe State, municipal and public health regulations, sign death and health certificates, reporting to the proper health officers. the same as other practitioners. Chiropractors shall not prescribe or administer medicine to patients, perform surgery, nor practice obstetrics or osteopathy."
Construing together the two Code Sections hereinabove quoted, it appears that chiropractors who have complied with the provisions of the Georgia law have the right to adjust patients according to specific chiropractic methods, and chiropractic means the adjustment of the articulation of the human body, including ilium, sacrum and coccyx, and in the use of electricity X-ray photography. It is specifically provided however, that the X-ray shall not be used for therapeutic purposes and chiropractors shall not prescribe or administer medicine to patients, perform surgery, nor practice obstetrics or osteopathy.
Under the definition of chiropractic in Section 84-501, it may well be doubted that the General Assembly of this State intended to authorize a person licensed to practice chiropractic in Georgia to use electricity, colonis irrigation, sweat baths, or any therapeutic means other than his hands. While that question has not been specifically answered by the appellate courts of Georgia, it has been decided by the courts of other States in construing acts similar to the Georgia Act. In the case of
State vs. Boston, 278 N. W. 291,
the Supreme Court of Iowa was called upon to construe the Act of that State which defined persons engaged in the practice of chiropractic as "persons who treat human ailments by the adjustment by hand of the articulation of the spine or other incidental adjustments." The Iowa statute also provided that a license to practice chiropracti should not authorize the licensee to practice

155
operative surgery, osteopathy, nor administer or prescribe any drugs or medicines included in materia medica. The Iowa Supreme Court held that by the use of the language last referred to, the legislature intended to define and limit the field of chiropractic and the maxim that the expressed con controls or excludes the unmentioned was inapplicable. The court held :
"Under statute limiting field of chiropractic treatments of human ailments, a chiropractor was not authorized to practice physiotherapy, electrotherapy, colonic irrigation, or to prescribe diet for patients, since such practices are outside the field to which practice of chiropractic has been limited."
In the case of
Joyner vs. State, 179 Sou. 573,
the Supreme Court of Mississippi held that a person who was authorized to practice chiropractic in that State under a license issued him by the State, was guilty of unlawfully practicing medicine as a physician where for a fee he attempted to remove ~ patient's tonsil by use of a needle through which electricity was applied. While the Mississippi statute is not quoted in that case, the court refers to the fact that the practice of chiropractic is generally defined to be a philosophy, science and art, dealing with the adjustment of the articulations of the spinal column by hand for the correction of the caus.e of disease and other bodily ailments.
In
Heintze vs. New Jersey State Board of Medical Examiners, 153 Atl. 253,
the Supreme Court of New Jersey held that a chiropractor who used vibrator, electric light, and galvanic current, and whose assistant gave directions for vegetarian diet and use of flaxseed tea, was practicing medicine and surgery. The New Jersey Court does not quote the statutory defiinition of chiropractic in that State. However, in the case of
State Board of Medical Examiners vs. De Baun, 147 Atl. 744,
the Supreme Court of New Jersey quotes the statutory definition of chiropractic in that State as follows: the "art of permitting

156
the restoration ... by placing in justaposition the abnormal concrete positions of definite mechanical portions with each other by hand....." The court in that case held that a chiropractor engaged in giving electrical treatments by placing upon the stomach and back two discs connected with an electrical machine from which power was gradually turned on until it got as strong as witness could endure, whereupon the power in that degree was left on for about half an hour for the purpose of drawing the muscles of the stomach back in proper place, was not the practice of chiropractic but was the practice of medicine and surgery without a license.
While the definition of chiropractic contained in the Georgia statute does not specifically refer to adjustments "by hand" as do the definitions contained in the statutes of some of the other States, the word "chiropractic" is itself derived from a combination of two Greek words meaning "practical science or practice of science by hand." See, Joyner vs. State, supra.
In the case of
People vs. Fowler, 84 Pac. 2nd, 326,
the Appellate Department of the Superior Court of Los Angeles, California, goes at some length into a discussion of the authorities defining chiropractic. The California statute authorized persons
properly licensed under that law "to practice chiropractic * * *
as taught in chiropractic schools or colleges," and "to use all necessary mechanical and hygienic and sanitary measures incident to the care of the body." The court, after citing and quoting from many authorities defining the term "chiropractic" held:
"A provision in the Chiropractic Act authorizing a licensed chiropractor to practice 'chiropractic' as taught in chiropractic schools or colleges, does not authorize practice by a chiropractor of anything that is taught in chiropractic schools and colleges, but practice must be chiropractic, and it must also be taught in chiropractic schools or colleges. 'Chiropractic' is a system of healing that treats disease by manipulation of the spinal column; the specific science that removes pressure on the nerves by the adjustment of the spinal vertebrae. There are no instruments used, the treatment being by hand only."
In the same connection, see, State vs. Boston, 284 N. W. 143.

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Thus, in People vs. Fowler, supra, where the statute authorized a person holding a license to practice chiropractic as taught in chiropractic schools or colleges, the court construed this to mean manipulation of the spinal column by hand and without the use of instruments since such was the well established defiinition of chiropractic at the time of the passage of the Act in question, and at the time the decision of the court was rendered. In Georgia, the statute authorizes chiropractors who have complied with the provisions of the Georgia law to adjust patients according "to specific chiropractic methods" and the examination of an applicant for a license to practice chiropractic is to be on the subjects of anatomy, physiology, symptomatology, pathology, physical diagnosis, neurology, chemistry, hygiene and sanitation, chiropractic orthopedy, nerve tracing and adjusting as taught by standard chiropractic schools or colleges, bacteriology and spinography." See Code Section 84-508 as amended. It is my opinion, therefore, that a person holding a chiropractic license in Georgia is not authorized to use electricity (except electricity X-ray photography) colonic irrigation, sweat baths, or any therapeutic means other than his hands.
The answer to your second question as to whose duty it is to stop such illegal conduct, can best be given when the specific case occurs. The facts of each case must be examined before it can be determined whether such practitioner is guilty of "immoral or unprofessional conduct" which would be cause for revoking the license of the practitioner, (Code Section 84-512) or whether such practitioner is guilty of practicing medicine without a license (Code Section 84-9914) or practicing any other profession without complying with the laws of this State.
PROFESSIONS; EMBALMERS-Persons under 21 can be examined, but cannot be licensed. July 10, 1942.
Dr. R. C. Coleman, Joint Secretary, State Examining Boards.
This will acknowledge the oral request of the Georgia State Board of Embalming for an opinion as to whether said board is vested with the discretion of allowing persons who have. not yet

158
reached the age of 21 to make application for and take an examination for the purpose of determining their educational qualifications for a license, such license, if the applicants successfully pass the examination, to be issued only after applicants reach the age of 21.
Code Section 84-811 sets out the qualifications of applicants for licenses to practice embalming, and while this section requires that the person must be 21 years of age before the board may issue its license to him, there is nothing in the statute which prohibits the board from examining an applicant for a license, even though he has not at the time of such examination reached the age of 21. This office as previously advised the State Nursing Board and the State Board of Accountancy, both of which boards operate under statutes similar to that dealing with applicants for licenses for embalming, that said boards are vested with the discretion to give examinations to persons who have not reached the age of 21, but may not issue any license to an applicant passing said examination until the age of 21 has been reached. I am of the opinion that the Georgia State Board of Embalming is vested with this same discretion.

PROFESSIONS; ENGINEERS-Corporation may engage m professional engineering, when.

Hon. R. C. Coleman, Joint Secretary, State Examining Boards.

January 27, 1942.

This will acknowledge yours of the 9th instant requesting an opinion as to whether or not a corporation may engage in the practice of professional engineering in the State, providing the engineering work is entirely under the supervision of a registered engineer of this State. Your letter would have received my earlier attention but for the fact that I have been out of the office for some time on official business, and there was a death in the family of my assistant which took me out of the office for several days.

The question submitted is one which is not at all free from doubt. It narrows itself to the proper construction to be placed

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upon Section 18 of the Act of 1937 (Ga. Laws 1937, p. 306), now codified as Section 84-2144 in the Georgia Code Annotated. This Section reads :
"A firm, or a co-partnership, or an association may engage in the practice of professional engineering or surveying in this State, provided only such practice is carried on under the direction of professional engineers or surveyors, respectively, who are registered in this State. .
The more specific question is: whether the word "association" as used in this Section of the law is broad enough to include within its meaning a corporation.
In 7 C.!. S. Associations, p. 21, Section lC, it stated:
"While an association may in its broadest sense include a corporation, the two terms are ordinarily used to denote different conceptions, 'association' ordinarily referring to an unincorporated society. The principal distinction lies in the fact that a corporation is a legal entity deriving its existence from franchise, whereas an association, in the narrow sense of the term, is a creature of contract without a legal entity separate from the individuals composing it." The statement is made that the terms are frequently held, by reason of the object and scope of the statute, to include a corporation, or to be synonymous therewith and cited under this text is the case of,
Tri-State Fair Association vs. LaseU, 187 Northwestern 824,
and,
Hall vs. Essner, 193 Nortreastern 86.
Thus it is. pertinent to enquire whether the term "association" as used in Section 18 of this Act was used in a broad and general sense, or in a narrow sense. The whole statute regulating the practice of professional engineering and surveying has one paramount aim in view: the protection of the safety and welfare of the public. The language of Code Section 84-2144 strongly indicates that the General Assembly was not using words with any great regard to their technical shades of meaning; or that the language used was used in a strict and narrow sense. The main object of the language used was to protect the public safety and public welfare. Accordingly, it may be said that the term

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"association" was used in Section 18 of the Act in a broad and general sens.e, and to hold that this term embraces within its meaning a "corporation" would not be destroying the efficacy of the statute in its purpose to protect public safety and welfare. It is obvious that so long as engineering work is under the direction of a professional engineer registered with the Board,. the public is protected as much when said work is done by a corporation as when it is. done by a "firm" or a "co-partnership."
Moreover I understand that since this statute became effective the State Board of Registration for Professional Engineers and Surveyors, in administering its terms, has uniformly construed Section 18 as permitting the practice of professional engineering or surveying by a corporation. Therefore, since the question is a very close one, I think there is no reason to now repudiate or set aside this administrative practice. After all, there is some authority for such construction. Our Supreme Court in the case of,
Georgia Fire Association vs. Borchardt, 123 Ga. 181, 186,
had this to say: "We can see no reason for making a distinction between
the words 'company' and 'association,' when they are respectively used to designate an entity, engaged in carrying on business and making contracts. Each of the words is used in defining the other. One of the meanings of the word 'company' is 'an association of persons for the purpose of carrying on some enterprise or business;' and one of the meanings of the word 'association' is a union of persons in a company or society for some particular purpose. Webst. Diet. So the word 'association,' when used with descriptive adjectives as the name of a business entity, is as much indicative of a corporation as the word 'company' when so used." See also,
Villa Rica Manufacturing Company vs. General American Life Ins. Co., 55 Ga. 328.
I am, therefore, of the opinion that under Section 18 of the Act of 1937 a corporation may engage in the practice of professional engineering or surveying in this. State "provided only such practice is carried on under the direction of professional engineers or surveyors, respectively, who are registered in this State."

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PROFESSIONS-Engineer not exempt from professional tax because he devotes all his time to work for a county.

Hon. John H. Lowe, County Engineer, Courthouse, Albany, Georgia.

January 26, 1942.

I am pleased to acknowledge receipt of your inquiry of January 23rd.

My distinguished predecessor in office, the late Attorney General M. J. Yeomans, in an opinion to the Comptroller General of Georgia dated May 23, 1936 (Opinions of the Attorney General 1935-1936) had the following to say about the subject matter of your inquiry:

"Paragraph three of the General Tax Act of 1935 places a tax 'upon each and every practitioner of law, medicine, osteopathy, chiropractic, chiropodist, optometrist, dentistry, masseur, public accountant, or emblamer, and upon every civil, mechanical, hydraulic, or electrical engineer, or architect, charging for their services as such, $15.00, and the validity of their license is made contingent upon the payment of the tax herein provided.
"This Act is far reaching and all embracing, and exempts no one 'charging for their services as such' from the
a payment of the tax, whether the employment be personal
on fee basis, or by another on a salary basis.
"A lawyer with one client on a salary basis would be subject as would an ;1ccountant employed by a firm or corporation on a salary basis.
"The Attorney General, all the assistant attorneys general, as well as all the architects, accountants and civil engineers employed and paid by the State are subject to the tax.
"A great many lawyers, quite a few doctors, many accountants, embalmers and others engaged in the practice of their respective professions are employed by individuals, persons, firms, or corporations on salaries o~ account of their skill and would not be employed but for thts fact. They are engaged in the practice of their professions and are charging for their services just as much as if they were engaged in private practice on their own responsibility and charging fees."

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I can find no exemption from professional tax levied against an engineer becaus.e of the fact that he devotes all of his time to engineering work for the county.
PROFESSIONS; PHARMACEUTICAL EXAMINERSMerchants may sell turpentine, castol oil, epsom salts and sulphur in unsealed packages measured out by him from bulk containers. October 24, 1941.
Hon. R. C. Coleman, Joint Secretary, State Examining Boards.
This will acknowledge receipt of your letter of recent date inclosing a letter from Hon. Charles \V. Walker who raises the question as to whether or not a merchant is. authorized to sell turpentine, castor oil, sulphur and epsom salts in unsealed packages measured out by him from bulk containers. Yott request an opinion on this question.
I regret the delay in answering your question which has been occasioned by the pressure of official business on this office.
The question you ask requires a construction of Section 84-1317 of the Georgia Code of 1933 and a construction of that section necessitates an examination of the history of the Act from which that section was codified.
By an Act of September 29, 1881, the Board of Pharmaceutical Examiners was created and the licensing of druggists provided for. This. Act, together with the amendments thereto, will be found in the Code of 1895, Sections 1192 to 1503. By Section 1499 in that Code, it was provid.ed that no person could engage in compounding or selling of medicine, drugs, or poisons without fully complying with the provisions of that Act. Certain exceptions however, were specified, among which will be found the following:
"Merchants selling family medicines not poison, as prescribed and allowed by the Code of Georgia."
In the case of Lewis vs. Brattnett, 6 Ga. App. 419,

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the above exemption was discussed and the court said that this exception related only to certain kinds of family medicinesthose prescribed and allowed by the Code of Georgia. The court said that the particular section of the Code referred to was Section 1409 of the Code of 1873 which was a part of the old "Physicians and Druggists Act." The .Court said:
"It allowed merchants to deal in medicines already prepared, if patented, or, if not patented, are legally warranted by a licensed druggist."
The conclusion of the Court in the Lewis case, supra, was to the effect that the above quoted exemption allowed merchants to sell only such non-poisonous, already prepared family medicines as are patented or are warranted by licensed druggists. Quoting from page 422:
"He cannot sell all patented medicines.; he can sell only those which fall within the class called 'family medicines.' The expression 'family medicines' is synonomous with such expressions as 'domestic remedies,' 'household remedies,' etc., found in the statutes of other states and common in general parlance. It includes such things as camphor, quinine, spirits of turpentine, castor oil, saltpeter, epsom salts, etc." Citing, Peters vs. Johnson, 50 W.Va. 644, 652, (41 S. E. 190, 57 L. R. A. 428.)
In the Code of 1910, Section 1729, subsection 3, the above quoted exemption was repeated as follows:
"Merchants selling family medicines not poison, as prescribed and allowed by the Code of Georgia."
This identical provision appears to have been the law until 1918, during which year the General Assembly amended that particular section by adding a provision which is not material to the consideration of the question here involved. This amended provision then appears in Michies Code of 1926 and continued to be the law on this subject until the Act of the General As-r sembly of 1927.
The law in its pres.ent shape and as now codified in Section 84-1317 of the Code, was enacted by the General Assembly in 1927. (Ga. "Laws 1927, pages 291-299. Section 18 of that Act under subdivision 3 of the exemptions is, in part, as follows:
"This item shall be construed in the interest of public health, and shall not be construed to prohibit the s.ale by

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merchants of home remedies, not poison, or the sale by merchants of preparations commonly known as patent or proprietary preparations when sold only in the original and unbroken packages. . . . ."
There are several factors to be noted in construcing the exemption as it now exists in Section 84-1317 of the Code.
In the first place, the Court of Appeals in the Lewis case had construed the words "household remedies," "family remedies," and "domestic remedies" as being synonomous and including such things as camphor, quinine, paragoric, spirits of turpentine, castor oil, saltpeter, epsom salts, etc. It is significant therefore, that the words, "home remedies," were used in the Act of 1927. The Legislature is presumed to know the construction placed upon synonomous words by the appellate courts of this State.
Since, under 'the ruling in the Lewis case, the words, "family medicines," were restricted and did not include all patent or proprietary medicines, it is also significant that the General Assembly in the Act of 1937 added the phrase "or the sale by merchants of preparations commonly known as patent or proprietary preparations when sold only in the original and unbroken packages." "Or" is usually a disjunctive conjunction indicating an alternative between two different things.
Holliman vs. Hawkinsville, 109 Ga. 107; Smith vs. The State, 15 App. 536.
It seems therefore, that by the Act of 1927, the General Assembly intended to exempt not only the sale by merchants of home remedies, not poison, as that phras.e was construed in the Lewis case, but also the sale by merchants of preparations commonly known as patent or proprietary preparations when sold only in the original and unbroken packages. The phrase "when sold only in the original and unbroken packages" clearly modifies the words "the sale by merchants of preparations commonly known as patent or proprietary preparations" and would not seem to modify the preceding clause relating to home remedies since it is contained only in the latter clause and is not set off independently by punctuation. If the General Assembly had intended the phrase, "when sold only in the original and unbroken

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packages," to modify or limit the clause containing the words "home remedies," it would have been very easy to make this clear by the use of language such as "shall not be construed to prohibit the sale by merchants of home remedies, not poison, and other preparations commonly known as patent or proprietary preparations, when sold only in the original and unbroken packages," or other language of similar import.
While the question admittedly is not free from doubt, it is my opinion that the General Assembly did not intend by the Act of 1927 to prohibit the sale by merchants of turpentine, castor oil and epsom salts in unsealed packages measured out by him from bulk containers. With reference to sulphur, the language of the Court of Appeals in the Lewis case to the following effect, ts applicable:
"It is only a question for the jury whether a given drug or medicine is a family medicine or not."
In writing this opinion, I have presumed that you do not have reference to a case in which "drugs" may be shown to have been adulterated or misbranded in violation of Sections 42-109 and 42-110 of the Georgia Code of 1933.

PROFESSIONS; REAL ESTATE BOARD-Cemetery com-

pany selling cemetery lots through agents subject to real estate license law.

Dr. R. C. Coleman,

September 17, 1942.

Joint Secretary, State Examining Boards.

This will acknowledge receipt of your recent request for an opinion as to whether or not it is a violation of the license law for cemetery companies to sell lots through unlicensed salesmen or agents.

My answer, of course, assumes that the Georgia Real Estate Act is operative in those counties where the sales of these cemetery lots take place.

Upon a casual reading of Code Section 84-1402 defining the term "real estate broker" and "real estate salesman" this

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section may seem ambiguous. However, when it is read in the light of the Acts from which it is codified, the meaning of this section is plain. It will be observed that the language of the Code section is an exact codification of the Acts of 1925, 1927 and 1929, with the exception that the word "also" is added before the last clause of the firs.t paragraph of said section. The rule has long been recognized in this State by our Supreme Court that it is not the purpose of the Code to make the law, but that a codification of the law is intended to be merely declaratory of the existing law. See many cases cited under the catchword "changes" under Code Section 102-101, Georgia Code Annotated. See also
State of Georgia v. Camp, 189 Ga. 209.
The rule also obtains that "unless there has been a change so conspicuous as to demand an inference that it was noticed by the lawmaking body and by them understood to effect a modification of the pre-existing law," the language of the Code section should be construed as intending to state the previously existing law, and not to change it.
Atlanta Coach Company v. Simmo1ts, 184 Ga. 1, 5, 6, Clark v. Newsome, 180 Ga. 97, 102, State of Georgia v. Camp, supra; and many other cases therein cited.
The mere addition of the word "also" before the clause above referred to obviously is not a conspicuous change either in the letter or the meaning of the statute.
Accordingly, when we look at the language of Section 29 of the Act approved August 27, 1929 (Georgia Laws 1929, pages 316, 318) which amends Section 2 of the original Act of 1925 and Section 21 of the amendatory Act of 1927 prescribing the definiton of a real estate broker and real estate salesman, it is entirely clear that the General Assembly intended that "any person, fiirm or corporation subdividing a tract of land into twenty (20) or more lots, or offering for sale a tract of land already subdivided into twenty (20) or more lots, where such persons, firm or corporation sells or offers any of said lots for sale through salesmen, whether such salesmen be regularly or occasionally employed, and whether they be paid salaries or com-

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missions.," are embraced within the definition of a real estate broker or real estate salesman as set out in Code Section 84-1402. It follows, therefore, that a cemetery company selling lots through salesmen would be subject to the real estate license law, and such lots could not be legally sold except through licens.ed salesmen or agents in counties where said statute is in force and effect.

PUBLIC HEALTH; DISTRIBUTION OF UNCLAIMED DEAD BODIES-Authority of public officers to deliver.

Hon. R. H. Lawrence, Superintendent and Warden, Georgia State Prison, Reidsville, Georgia.

April 2nd, 1941.

I am pleased to acknowledge yours of the 27th ult., enclosing letter of Dr. G. Lombard Kelly, Dean of the School of Medicine of the University of Georgia, at Augusta, Georgia, under date of March 26th, 1941.

In his letter, Dr. Kelly requests you to advis.e him of the deaths of any inmates in the penal institutions under your jurisdiction whose bodies are unclaimed by relatives or friends in order that the medical school may send for such bodies or have them called for and delivered to the medical school by some undertaker. You request my opinion as to whether it would be lawful for you to turn these bodies over to the School of Medicine.

Under Chapter 88-7 of the Code of Georgia of 1933 a board for the distribution and delivery of dead bodies to and among institutions of learning in this State is created. Section 88-702 of this Chapter reads in part:

"All public officers of this State and their assistants, and all officers and their deputies of every county, city, town or other municipality, and of every prison, chain-gang, morgue, public hospital, sanatorium or sanitarium (except the Milledgeville State Hospital, which institution shall have authority to perform autopsies on the dead bodies of persons dying as patients in said institution, all in the dircretion of the superintendent and medical staff of said institution), having control over any dead human body, not dead from con-

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tagious or infectious disease, and required to be buried at public expense, are required to notify the board of distribution, or such person as may from time to time be designated in writing by said board, or its duly authorized offu::er, whenever any such body comes into their possession or control, and shall, without fee or reward, deliver such body, and suffer the board and its duly authorized agents who ma)J comply with the provisions of this Chapter, to remove such body, to be used only within this State, solely for the advancement of medical science." (Italics supplied.)
I also direct your attention to Section 88-704 of the Code which required any such body to be "held and kept by the person or persons having charge or control of at least twenty-four hours after death, before delivey to said boad or its agent, during which period notice of the death of such person shall be posted at the courthouse door of the county in which said body is held." The remainder of the Sections of said Chapter relate to the duties of the board and its agents with reference to the distribution and disposal of said bodies, and to the qualifications of the various institutions of learning to receive the bodies.
Under these statutes, you are clearly authorized to turn these bodies over to the "board of distribution" or its duly authorized agent, provided the provisions of Section 88-704 have been complied with. You would not be authorized, however, to turn any such body over to the board if any person claiming to be and satisfying you that he or she is a relative of any degree of kin, or is related by marriage to, or socially or otherwise connected with and interested in the deceased, shall claim the body for burial. In the event of such a claim it would be your duty to surrender the body "to such person for interment" or to bury the same "at public expense" if so reques.ted by the claimant if the claimant is "a relative by blood or a connection by marriage and financially unable to supply such body with burial." Code 88-702.

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PUBLIC HEALTH; STATE BOARD OF HEALTH-No duty to certify to county treasurers number of births and deaths registered, when.
September 28th, 1941.
Dr. T. F. Abercrombie, Director,
Department of Public Health.
I am pleased to acknowledge yours of the 22nd instant requesting my opinion as to the legal authority of the State Board of Health to certify to the treasurers of the several counties. the number of births and deaths properly registered, with the names of the local registrars and the amounts due each at the date of said certificate, in cases .where the registrars do not file the certificates of birth and death within the time required by law.
As you know, Code Section 88-1211 is the statute which makes the provision for the compensation of local registrars for their work and prescribes the fee. This Section reads in part:
"Each local registrar shall be paid a fee of SOc for each birth certificate and for each death certificate properly made out and registered with him, and correctly recorded and promptly returned by him to the State Board of Health As required by this law. . . . . All amounts payable to a local registrar under the provisions of this Section shall be paid from the county funds by the treasurer of the county in which the registration district is. located, and the State Board of Health shall annually, or in its discretion, from time to time during the year, certify to the treasurers of the several counties the number of births and deaths properly registered, with the names of the local registrars and the amounts due each at date of said certificate...." (Italics supplied.)
I have unders.cored above certain language of the statute which is significant. It should be observed that it is made the duty of the State Board of Health to certify for payment only the birth and death certificates promptly and properly filed with the State Board of Health "as required by law."
One of the requirements of the law is that "within 10 days after the date of each birth, there shall be filed with the local registrar of the district in which the birth occurred a certificate of. such birth, which certificate shall be upon the fom adopted by the State Board of Health, etc." (Code Section 88-1202). An-

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other provision of the law which indicates very clearly thal the General Assembly intended that registrars should observe the time limit fixed above in obtaining birth certificates is found in Code Section 88-1210. This Section provides in part that the regstrar "shall number consecutively the certificates of birth and death, in two separate series, beginning with number one for the first birth, and the first death of each calendar year, and sign his name as registrar in attest of the date of filing in his office." The statute further provides that the registrar "shall also make a complete and accurate copy of each birth and each death certificate on the form provided by the State Board of Health for that purpose, and he shall, on or before the lOth day of each month, transmit to the State Board of Health, all original certificates registered by him for the preceding month, etc." This language would not support any other reasonable construction than that the certificates upon which a registrar may legally demand payment are only those which are obtained within ten days from the date of birth of a child, and which are otherwise regularly made out and filed in accordance with the law.
The time within which death certificates upon which a registrar is entitled to payment must be filed is controlled by Section 88-1213 of the Code, and it will be noted that the language of this Section is more elastic than that of Code Section 88-1202 relating to the filing of certificates of birth. Code Section 88-1213 prohibits the body of any person whose death occurs in this State or who is found dead therein from being "interred, deposited in a vault or tomb, cremated, or othenvise disposed of or removed from or into any registration dis.trict" or from being "temporarily held pending further disposition more than seventytwo hours after death, unless a permit for burial, removal, or other disposition thereof shall have been properly issued by the local registrar of the registration district in which the death occurred or the body was found." And the next sentence of said Section provides that "no s.uch burial or removal permit shall be issued by the registrar until, where practicable, a complete and satisfactory certificate of death has been filed with him as provided in this Chapter." The words "where practicable" must be construed as vesting some discretion in the registrar with reference to the issuance of a permit for burial, removal or other

171
disposition even where a certificate of death has not been filed with him within seventy-two hours. In other words, where the registrar finds that for some reason it is impracticable to obtain a complete and satisfactory certificate of death within seventytwo hours after the death occurs, or the body is found, he may in such circumstances issue a burial, removal or disposition permit, and I am of the opinion that he would be entitled to payment for the death certificate in such cases even though it is not filed with him within seventy-two hours from the date that the death occurred or the body is found, provided he promptly files the death certificate with the State Board of Health when it is made out in a complete and satisfactory manner and provided further that on or before the lOth day of the following month he includes such certificate in those transmitted to the State Board for the preceding month.
I do not think that it is the duty of the State Board of Health to certify to the county treasurers for payment any certificates of birth or death which were not consecutively numbered and filed within the time prescribed by law as above discussed.
The foregoing opinion is in conformity with the views expressed by my distinguished predecessor in office, the late Hon.
M. J. Yeomans.
PUBLIC REVENUE; TAX COLLECTORS-Fees.
March 24, 1941. Hon. B. E. Thrasher, Chief Clerk, Property and License Tax Unit, Department of Revenue.
This will acknowledge receipt of your letter of March 19th in which you point out that the present legislature has amended the law providing a commission of 10% to collectors on all collections in excess of 90% of the net digest so as to provide that in counties having a population of 80,000 or more, the commission shall be paid into the county treasury. You state that the provision as to the 10% of the digest was a special and specific commission authorized to induce tax collectors to make better collections., and that it appears to you that when this special inducement is taken away from the tax collectors the regular

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scale of commissions should apply and the deduction of 10% be disregarded in those counties which require that the commissions be paid into the county treasury.
Section 1 of the Act approved January 17, 1938, (Ga. Laws 1937-38 Ex. Sess. pages 297-299), amends. Section 92-5301 of the Georgia Code of 1933 by changing. the commissions to be allowed to each receiver and collector of State and county taxes. The commissions are enumerated in that section. Section 3 of the Act, as amended by an Act approved March 24, 1939, (Ga. Laws 1939, pages 370-372), and as further amended by an Act approved March 11, 1941 (Senate Bill No. 125) provides as follows:
"Be it further enacted by the authority aforesaid, that as far as the tax collectors are concerned, the above rates and schedule 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 collector's 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 80,000 or more according to the census of 1940 or any future census, the commissions referred to herein shall be paid into the treasury of and become the property of such counties, provided, nevertheless, that in any of said counties where the salary of the tax collector or tax commissioner is not fixed by act of the legislature, the county commissioners may fix a salary and/or fees as compensation for such tax collector or tax commissioners."
You will note that Section 3 of the Act as amended provides that in counties having a population of 80,000 or more "the commission referred to herein shall be paid into the treasury of and become the property of such counties." You will further note that Section 3 provides that 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 10% of all collections, irrespective of the schedule and rates fixed in Section 1 of the Act.

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It appears therefore, that Section 3 of the Act is plain and unambiguous. "The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity which it involves, the first rule of construction." (Neal vs. Moultrie, 12 Ga. 104.) As stated in the case of Barnes vs. Carter, 120 Ga. 895.
"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 vs. 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."
See also,
Standard Oil Company vs. State Revenue Commission, 179 Ga. 371;
State Revenue Commission vs. Brandon, 184 Ga. 225,
and the cases therein cited.
Of course, it might be strongly contended that the General Ass.embly ignored the original purpose of the Act when it authorized and required the payment of the 10% commission into the treasury of counties having a population of 80,000 or more. On the contrary however, it might also be urged with some degree of reason that the General Assembly intended to provide the county commissioners in counties having a population of 80,000 or more, where the salary of the tax collector or tax commissioner was not fixed by act of the legislature, with the means of rewarding the tax collectors for their diligence in collecting the taxes ; or where, in such counties, the salary of the tax collector or tax commissioner is fixed by an act of the legislature, to compensate the county treasury for the payment of such salary. In the case of
Puckett vs. Young, 112 Ga. 578,
it is said:
"So long as the legislature keeps within the limitations of its power imposed by the constitution and enacts law in

174
accordance with its requirements, and the statute pass.ed affects no rights which the constitution guarantees, the courts have nothing whatever to do with the wisdom, expediency, reasonableness, or justice of a statutory enactment. These are questions solely for the consideration of the lawmaking department of the government. Nor can the courts inquire into the motives of the General Assembly in passing a statute; and the consequences which may result from its enforcement can be considered by the judiciary only so far as they may affect constitutional rights."
See also,
Mayes vs. Daniel, 186 Ga. 345; Winter vs. Jones, 10 Ga. 191.
As held in the case of
Flint River Steamboat Company vs. Foster 5 Ga. 194,
"The legislature being the sovereign power in the State, while acting within the pale of its constitutional competency, it is the province of the Courts to interpret its mandates, and their duty to obey them, however absurd and unreasonable they may appear."
While the amendment of 1941 may, in some respects, be considered to have deviated from the purpose of the original act, since the act as amended is clear and unambiguous with respect to the provision now under consideration, it is my opinion that that provision of the Act cannot be ignored or repealed by administrative construction and must be followed.
PUBLIC REVENUE; OCCUPATION TAXES-Professional tax required of attorneys at law not exempt by reason of veteran's. disability certificate.
January 24, 1942.
Hon. J. B. Peavy, Hamilton, Georgia.
I am pleased to acknowledge receipt of your inquiry of January 23rd in reference to whether or not an attorney holding a World War Veteran's certificate is exempt from the payment of professional tax.
This particular question has been submitted to the Law Department on several occasions. My distinguished predecessor in

175
office, the late Attorney General M. J. Yeomans, in an opinion rendered to the late Honorable W. B. Harrison, then Comptroller General, dated July 1, 1933, held:
"The statute exempting certain disabled or indigent veterans from license taxes is contained in Section 1888 of the Civil Code of 1910 as amended, (Section 84-2011, Code of 1933). That section provides that veterans coming within the exempted class who comply with the provisions of law regarding certificates of disability 'may peddle or conduct business' without paying license for so doing.
"It has been the uniform rule of the Courts of this State and of other States that statutes of that character must be strictly construed. So, construing Section 1888 of the Civil Code, it is my opinion that a person practicing one of the professions upon which a tax is laid by the General Tax Act is not peddling or conducting business within the meaning of said Section 1888, and that said section does not exempt a veteran from the payment of professional tax." (Pages 427-428, Opinions of the Attorney General of Georgia, 1933-1934).
This view has been uniformly adopted and followed by the State Revenue Commissioner.
There have been one or two cas.es in court involving the question, but in each instance the issue was never pursued to the appellate courts.
PUBLIC SAFETY; GEORGIA STATE PATROL-Whether the Ordinary has power to take and forfeit appearance bonds in traffic cases.
February 4th, 19491.
Hon. J. J. Elliott, Captain, Georgia State Patrol.
This will acknowledge yours of January 22nd, 1941, enclosing letter of Hon. W. M. Clark, Ordinary of Forsyth, Georgia, !I"equesting an opinion as to whether under the law authorizing ordinaries to hear and determine cas.es involving violation of the State traffic laws the ordinary has authority for taking and forfeiting appearance bonds or the sheriff or arresting officer the authority to accept bond or cash in lieu of bond in any traffic case brought or to be brought before the court of ordinary. Judge

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Clark also desires to know how, if such bonds can be forfeited, the funds collected should be applied ; and whether under Section 11 of the enabling act conferring jurisdiction upon courts of ordinary in highway patrol and traffic cases. said court has exclusive, or merely concurrent jurisdiction with the superior court.
The only provision with reference to bail contained in the act conferring jurisdiction upon courts of ordinary, etc., over highway patrol and other traffic law violation cases is found in Section 10 which relates to appeals and provides:
In case of a conviction of any defendant in the courts named in this act he shall have the right of appeal to the superior court. The appeal shall be entered as. appeals are now entered from the court of ordinary to the superior court provided that the defendant shall be entitled to bail and shall be released from custody upon giving bond as is provided for appearances in criminal cases in the courts of this State, and such bonds shall have the conditions as. now appear in appearance bonds in criminal cases. The hearing in the superior court shall be a de novo investigation and all proceedings shall be as is now provided by law."
This act, however, should be construed in connection with the general law as s.et out in Section 27-902 of the Code and which provides :
"The sheriffs and constables shall accept bail in such reasonable amount as may be just and fair for any person or persons charged with the offense of a misdemeanor, provided that the sureties tendered and offered on said bond are approved by a sheriff of any county."
So while it is true that the act above referred to does not specifically provide for the taking of an appearance bond (but merely for the taking of a bond in cases which are to be appealed) I am of the opinion that acting under Section 27-902 the sheriff or constable could accept bail in cases involving traffic violations which are made returnable to the court of ordinary.
A more difficult question is presented with reference to the right of the ordinary to forefeit such an appearance bond. No procedure is set up in the aforesaid act with reference to the forfeiture of such bonds or the disposition of the proceeds arising from such forfeitures. Nor does the general law as embodied

177
in CodeSections 27-905 and 27-906 supply this defect in said act. Section 27-905 provides:
"Upon the failure of any principal in any bond or recognizance given by a person charged with a penal offense to appear, or of a prosecutor to prosecute, or of a witness to appear and testify, the prosecuting attorney shall proceed to forfeit such bond or recognizance. No recognizance called out of its regular order on the docket shall be forfeited, for the nonappearance of the principal, unless the solicitor general or other prosecuting officer shall state in his place that the State is ready for trial."
This Section seems inapplicable to cases. in the court of ordinary for the reason that there is no statute which either authorizes or makes it the duty of the Solicitor General to prosecute highway patrol or traffic cases in courts of ordinary. As to the duties of the Solicitor General see Code Section 24-2908; Constitution Article VI, Section XI, Paragraph II.
Section 27-906 provides :
"The clerk shall issue a scire facias on all forfeited bonds, recognizances, or other obligations, returnable to the next term of such court, against the principal and his sureties, which shall be served by the sheriff or his deputy at least 20 days before the return thereof, or, if the party resides out of the county or State, scire facias may be served by publication as in cases of scire facias to revive judgment. If, at such return term, no sufficient cause shall be shown to the contrary, judgment, on motion, shall be entered against such principal and sureties, or such of them as have been s.erved."
The procedure as outlined in this Section is of ancient origin and of course antedates the act of 1937-1938 conferring jurisdiction on courts of ordinary in certain criminal cases. The reference to "the clerk" in Section 27-906 must, of necessity, mean "the clerk of the superior court," and as the clerk of the superior court is not vested, either, with any authority or duty with reference to the forfeiture of appearance bonds returnable to courts of ordinary this Section is likewise inapplicable as applied to the forfeiture of bonds in criminal cases over which courts of ordinary have jurisdiction. I, therefore, reluctantly reach the conclusion that there is a hiatus in the law with reference to the forfeiture of such bonds and this condition should be remedied by an amendment to the aforesaid act. Neither is any

178
provision made in the act or in any other general law, applicable to such matters which would direct or govern the application or distribution of funds derived from the forfeiture if such bonds could be forfeited.
With reference to the question as to whether Section 11 of said act confers exclusive jurisdiction on the courts of ordinary, I am enclosing herewith a copy of an unofficial opinion under date of January 16th, 1941, to Hon. B. F. Whittemore, Ordinary of Gordon County, which deals fully with this question. You will note that this opinion holds that courts of ordinary, in those counties where they have jurisdiction of criminal cases at all, have concurrent jurisdiction with the superior court. You may forward this copy to Judge Clark for his information.
ROADS; STATE HIGHWAY DEPARTMENT-May not authorize a political subdivision of the State to charge tolls on a highway designated as a part of the State-aid system.
January 11, 1941. Hon. H. H. Watson, Hon. L. L. Patton, State Highway Board of Georgia.
This will acknowledge 'receipt of your letter of December 17th in which you state:
"The Board having had under consideration for several months the advisability of certifying into the State Highway System a road in Glynn County from Brunswick to Fort Frederica on St. Simons Island, and finding that said road is a toll road having outstanding bonds for its construction, which presents a unique question with reference to the legality of certification, we present to you the entire file on the subject, and request your legal opinion as to whether the Highway Board has authority to certify this particular road into the State Highway System."
It appears from the file enclosed with your letter that the proposal of the City of Brunswick and Glynn County is that the road and bridges from the coastal highway to Frederica, a distance of 11.1 miles, be placed in the State System, and maintained by the State Highway Department with the understanding that the city and county shall continue to operate the two draw

179
spans on the bridges and shall collect tolls for a period of twelve years, the average date of the retirement of the bonds..
Section 95-1705 of the Georgia Code of 1933 provides:
"The State Highway Board shall designate the system of interconnecting county-seat public roads to be known as State-aid roads, as provided in the following sections. No road shall become a part of the State-aid system until the same shall be s.o designated by the State Highway Board by written notice to the county road authorities concerned."
Section 95-1701 provides:
"There is hereby created a system of State-aid roads for the purpose of interconnecting the several county seats, which shall be designated, constructed, improved, and maintained by the State through the State Highway Department, under the provisions of law; and the term 'State-aid roads' shall include the State or interstate bridges. and other subsidiary structures necessary or desirable in the construction of said roads."
Section 102-103 of the Code provides in part:
"The following meanings shall be given to the following words in all statutes, unless a different meaning is. apparent from the context :
"Highway or Road, includes bridges upon the same, and also includes streets in a city."
Section 95-1504 provides in part:
"The powers and duties of the State Highway Department shall be as follows:
"To have charge and control of all road or highway work designated or provided for, or done by the State or upon the State-aid roads ; to designate, improve, supervise, construct and maintain a system of State-aid roads; to have cotnrol, charge, and supervision of the expenditures of all funds appropriated or provided for highway or road work by the State, or which may be a part of the State-aid road fund; ...."
Section 95-1606 provides:
"The State Highway Board shall be the executive and administrative head of the State Highway 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 93-17." It is my opinion, adduced from the foregoing Code Sections,

180
that it was the intent of the General Assembly to give the State Highway Board, whic his the executive and administrative head of the State Highway Department, full and complete control and supervision over roads designated as a part of the State-aid system, including the bridges thereon. In the absence of specific statutory authority, I do not believe that the State Highway Board has the power to delegate the control and supervision of a road or any part thereof which has been designated as a part of the State-aid system. An official board cannot delegate to others a
power that can be exercised only by itself. 46 C. J. 1034, Section
297. In my opinion, for the State Highway Board to authorize any political subdivision of the State to collect tolls for he use of a road which has been designated as a part of the State-aid system, or to prohibit the use of such road to members of the public upon the refusal to pay such tolls, would amount to an unauthorized delegation of the supervision of such road which is specifically vested in the State Highway Board by the Acts of the General Assembly. I do ,not believe therefore, that the State Highway Board may authorize the collection of tolls by a political subdivision of the State for the use of a road which has been designated as a part of the State-aid system.
I notice that in the file handed me with your letter, it is stated that the United States Government permits toll bridges on the Federal System, where operated to pay costs of construction. This is done by specific statute. Title 23, U. S. C. A., Section 9, provides:
"All Highways constructed or re-constructed under the provisions of this Chapter shall be free from tolls of all kinds."
Section 9b of the same Title provides:
"In the administration of this Title, Section 9 shall not apply to publicly owned bridges or approaches thereto, constructed and operated by the Highway Department of any State, subject, however, to the condition that all tolls received from the operation of any such bridge, less the actual cost of operation and maintenance, shall be applied to the repayment of the cost of its construction or acquis.ition, or when the cost of its construction or acquisition shall have been repaid in full, such bridge thereafter shall be maintained and operated as a free bridge."

181

WORKMEN'S COMPENSATION-Employer's Liability and Public Liability Insurance premium not a lawful charge

against local school district school or school building public funds.

Hon. B. E. Thrasher, Jr., State Auditor.

January 23, 1942.

This will acknowledge yours of the 21st instant requesting

an opinion as to the authority of the Rockmart school trustees of

the Rockmart school district to carry Workmen's Compensation, Employer's Liability and Public Liability Insurance in connection

with the construction of a new high school building in the dis-

trict. Due to the fact that this question involves your official duties as State Auditor in auditing the books and accounts of

the Secretary and Treasurer of said district (Code Section 321123) I am pleased to give you my opinion upon the questions

propounded.

Our Supreme Court held in the case of Floyd County vs.
Scoggins, 164 Ga. _485, that,
"So much of the Workmen's Compensation Act as requires the counties of this State to 'insure their employees against, or pay them compensation for, personal injuries or for their deaths while in the employment of the counties, violates Article 7, Section 6, Paragraph 2 of the constitution of this State, which declares the purposes for which the legislature can authorize the counties to levy taxes."
This decision was followed and cited with approval in the case
of Murphy vs. Constitution Indemnity Company, et al., 172 Ga.
378, wherein it was held,
"The fund received by the Board of Education of Troup County for maintaining the schools is received from taxation, and from funds derived from the State school fund. . . . . The power to expend money by the Board of Education from funds derived from taxation is shown in Board of Education of Wilkes County v. Butler, 154 Ga. 569, and Pace v. County Board of Education, 150 Ga. 777, and does not extend to the object above mentioned. It would be an unconstitutional expenditure of money by the Board of Education of Troup County to pay for personal injuries received by a bus driver under the circumstances herein s.tated, or for compensation insurance under the Workmen's Compensation Act."

182
It was pointed out in this decision that the County Board of Education of Troup County was not an independent organization or political subdivision but that it was "an agency through which Troup County acts in school matters." See also DeKalb County, et al vs. Grice, 51 App. 887, and Perdue vs.. Maryland Casualty Company, 43 App. 853.
The Workmen's Compensation Act defines an "employer" as inCluding "any municipal corporation within the State, and any political subdivision thereof," etc. But, as pointed out above, the Supreme Court has held that since the counties have no power to levy taxes for the purpose of paying premiums on workmen's compensation insurance or paying employees or their relatives for injuries. or deaths sustained while working for the county, I think that it necessarily follows that a local board of school district trustees also lacks such authority. The law specifically provides for what purposes the county boards of education and school district trustees. or other local units of administration may expend public school funds. (See Section 32-614, Ga. Code Annotated, pocket supplement). These purposes do not include either expressly or by necessary implication the expenses under discussion.
Moreover, I assume that the school building in question is being constructed with funds derived from the issuance of bonds. If this be true, then the law as set out in Code Section 32-1402 directs that the proceeds from bonds which have been issued and sold for the purpose of erecting a school building or buildings shall be used only for the purpose of "erecting a school building or buildings or purchasing buildings already erected," and the power of the tax levying authorities with respect to retiring the bonds is limited to a levy of only so much as will take. care of and pay the principal and interest of the bonds for the purposes aforesaid. Accordingly, whether it be considered that so much of the Workmen's Compensation Act as. may classify a local school district board of trustees as an employer is unconstitutional or not, it is undoubtedly true that the General Assembly has made no provision for the levying of any taxes by local school district trustees for the purpose of paying the premiums upon workmen's compensation insurance, or for the purpose of paying indemnity

183
to any employee of said board who may be injured. The same thing is true with respect to Public Liability Insurance and Employer's Liability Insurance.
I am of the opinion, therefore, that you would be authorized, in auditing the accounts of the local board of trustees, to disallow any items of expenditure which have been disbursed for the aforesaid purposes.
LAW LIBRARY
~4NiVERSITY OF GEDRG11
.:..-:..~ENS. GEORGIA

184
LIST OF STATE APPELLATE COURT CASES DECIDED
IN 1941-43 IN WHICH
THE STATE LAW DEPARTMENT OF THE STATE OF
GEORGIA APPEARED AS COUNSEL
Alford v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Ga. 650 Allen v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Ga. 430 Babb & Nolan v. Huiet, commissioner ........ 67 Ga. App. 8nl Banks v. State............................. 192 Ga. 181 Barwick v. Roberts et al. . . . . . . . . . . . . . . . . . . . . 192 Ga. 783 Bass v. Georgia Public Service Commission.... 192 Ga. 106 Billingsly v. State.......................... 193 Ga. 711 Brown v. State............................. 195 Ga. 430 Bryant v. State............................. 191 Ga. 686 Cannon v. State............................ 194 Ga. 277 Carroll v. Ragsdale et al. commissioners. . . . . . . 192 Ga. 118 Coates v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Ga. 130 Coates v. Lawrence, warden et al. . . . . . . . . . . . . 193 Ga. 379 Collins v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Ga. 177 Cone v. State.............................. ,193 Ga. 420 Cornelious v. State......................... 193 Ga. 25 Cox v. Linder, commissioner. . . . . . . . . . . . . . . . . 191 Ga. 790 Crump et al. v. State Highway Department et al 191 Ga. 130 Davis v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Ga. 558 Dean v. Georgia Public Service Commission. . . . 193 Ga. 401 Departwent of Revenue v. Boykin ............ 67 Ga. App. 289 Department of Revenue v. Stewart. .......... 67 Ga. App. 281 Department of Revenue v. Wardlaw. . . . . . . . . . 68 Ga. App. 716 Dowdell v. State........................... 194 Ga. 578 Driver v. State............................. 194 Ga. 561 Dunn et al., barber examiners, v. Meyer. . . . . . . 193 Ga. 91 Eibel v. Forrester, commissioner, et al......... 194 Ga. 439 Elam v. Rowland, warden. . . . . . . . . . . . . . . . . . . 194 Ga. 58 Emmett v. State............................ 195 Ga. 517 Faun v. State.............................. 195 Ga. 176 Federal Deposit Ins. Corp. v. Beasley, supt..... 193 Ga. 727 Federal Land Bank et al. v. Forrester, com..... 192 Ga. 446 Felder v. State............................. 191 Ga. 600 Forrester, commissioner, v. Americus Oil Co... 66 Ga. App. 743 Forrester, commissioner, v. Continental Gin Co.. 67 Ga. App. 119 Forrester, commissioner, v. Culpepper. . . . . . . . 68 Ga. App. 382 Forrester, revenue commissioner, v. Edwards. . 192 Ga. 529 Forrester, commissioner, v. Ga. Milk Producers. 66 Ga. App. 696 Forester v. Interstate Hosiery Mills, Inc.. . . . . . 194 Ga. 863 Forrester, revenue commissioner, et al. v. Lowe. 192 Ga. 469 Forrester, revenue commissioner, v. Pullman Co. 65 Ga. App. 112

185

Forrester, revenue commissioner, v. Pullman Co. 66 Ga. App. 745

Forester, revenue commissioner, v. Pullman Co. 192 Ga. 221

Forrester, revenue commissioner, v. Trust Co.. . 65 Ga. App. 167

Frazier v. State............................ 194 Ga. 657

Fulenwider v. Forrester, revenue commissioner. 64 Ga. App. 756

Gernatt v. Huiet, commissioner of labor. . . . . . . 192 Ga. 729

Griffin v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Ga. 368

Hall v. State Highway Board. . . . . . . . . . . . . . . . 66 Ga. App. 190

Harris v. The State ........................ : 191 Ga. 243

Harris v. The State . . . . . . . . . . . . . . . . . . . . . . . . 193 Ga. 109

Harris v. The State. . . . . . . . . . . . . . . . . . . . . . . . . 191 Ga. 555

Hixson v. The State. . . . . . . . . . . . . . . . . . . . . . . . 194 Ga. 568

Holland v. The State . . . . . . . . . . . . . . . . . . . . . . . 191 Ga. 608

Holley v. The State......................... 191 Ga. 804

Holley v. Lawrence, warden................. 194 Ga. 529

Holmes v. The State. . . . . . . . . . . . . . . . . . . . . . . . 194 Ga. 849

Huiet, commissioner v. Boyd et al. . . . . . . . . . . . 64 Ga. App. 564

Huiet, commissioner v. Great A. & P. Tea Co... 66 Ga. App. 602

Irwin v. The State. . . . . . . . . . . . . . . . . . . . . . . . . . 194 Ga. 690

Jester v. The State..... . . . . . . . . . . . . . . . . . . . . . 193 Ga. 202

Johnson v. Huiet, commissioner .............. 67 Ga. App. 638

Johnson v. The State........................ 192 Ga. 571

Jones v. The State. . . . . . . . . . . . . . . . . . . . . . . . . . 193 Ga. 449

Kalb v. The State.......................... 195 Ga. 544

Kennedy v. The State............. . . . . . . . . . . 191 Ga. 22

Kyle et al. v. Huiet, commissioner of labor et al. 193 Ga. 202

Lewis v. Huiet, commissioner et al.. . . . . . . . . . . 67 Ga. App. 337

Lowe. v. City of Atlanta et al.. . . . . . . . . . . . . . . 191 Ga. 76

Lowe v. City of Atlanta, et al.. . . . . . . . . . . . . . . 194 Ga. 317

Manning et al. v. Wills et al. . . . . . . . . . . . . . . . . 193 Ga. 82

Martin v. The State. . . . . . . . . . . . . . . . . . . . . . . . . 193 Ga. 824

Massey v. The State........................ 191 Ga. 44

McCoy v. The State........................ 191 Ga. 516

McCoy v. The State........................ 193 Ga. 413

Mcintosh v. The State...................... 191 Ga. 736

Mexican Petroleum Corp. v. Head, Rev. Com.. . 64 Ga. App. 529

Mills v,. The State .. ~ . . . . . . . . . . . . . . . . . . . . . . . 193 Ga. 139

Moore v. Lawrence, superintendent... . . . . . . . . 192 Ga. 441

Moore v. The State......................... .193 Ga. 877

Mu Beta Chapter Chi Omega v. Davison, tax-

collector et al. ........................ . 192 Ga.124

National Manufacture and Stores Corp. v. Head

Rev. Com............................. . 67 Ga. App. 114

Nunn v. The State........................ .

195 Ga. 68

Passley v. The State ....................... . 194Ga. 327

Pippin, warden, v. Johnson . . . . . . . . . . . . . . . . . . 192 Ga.450

186
Powell v. The State ....................... . 193 Ga. 398 Purvis et al. game and fish protectors v. Tippins 193 Ga. 251 Pylant v. The State......................... 191 Ga. 587 Regents of University System of Georgia v.
Trust Company of Georgia, executor, et al. 194 Ga. 255 Rivers v. The State ........................ . 193 Ga. 133 Ross v. The State .......................... . 194 Ga. 514 Shafer v. The State........................ . 191 Ga. 722 Shafer v. The State ....................... . 193 Ga. 748 Sims v. Tucker et al. ....................... . 191 Ga. 676 Smith v. The State ........................ . 192 Ga. 713 State of Georgia ex rel. Boykin, solicitor gen-
eral, v. Ball Investment Co. et al.. . . . . . . . . 191 Ga. 382 Tapley v. The State......................... 193 Ga. 340 Thompson v. The State...................... 191 Ga. 222 Tower Trucking Co. v. Forrester, revenue com. 192 Ga. 87 Vaughn v. The State........................ 193 Ga. 282 Walker v. The State........................ 194 Ga. 727 Walthour v. The State...................... 191 Ga. 613 Watson v. Department of Public Safety. . . . . . . 66 Ga. App. 633 Wells v. The State......................... 194 Ga. 70 Wilder v. The State......................... 193 Ga. 337 Williams v. Lawrence, superintendent......... 193 Ga. 381 Williams v. State Highway Board............ 195 Ga. 18 Williams v. The State. . . . . . . . . . . . . . . . . . . . . . . 192 Ga. 247 Wills et al. v. Manning et al.................. 195 Ga. 336 Worthy v. The State ....... ;................ 192 Ga. 620 Wright v. Forrester, revenue commissioner. . . . . 192 Ga. 864 Wrisper v. The State....................... 193 Ga. 157 Zugar v. The State......................... 194 Ga. 285
LIST OF CASES IN THE SUPPREME COURT
OF THE UNITED STATES
Barwick v. Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 U.S. 796 Halley v. State of Georgia: ..................... 314 U.S. 576 State of Georgia v. Evans ...................... 315 U.S. 792 State of Georgia v. Evan~ ..................... 316 U.S. 159 Taylor v. State of Georgia ..................... 315 U.S. 25 Williams v. Lawrence, Supt.................... 315 U. S. 816

187
LIST OF CASES IN THE CIRCUIT COURT OF APPEALS OF THE UNITED STATES
Coates v. Lawrence, Supt...................... 131 F. 2d 110 Smith v. Lawrence, Supt.. . . . . . . . . . . . . . . . . . . . . . 128 F. 2d 822 State of Georgia v. Evans ...................... 123 F. 2d 57
LIST OF CASES IN THE DISTRIC,f COURT OF THE UNITED STATES
Coates v. Lawrence, Supt.................... 46 F. Sup. 414 State of Georgia v. Evans...................... F. Sup.

188

GENERAL INDEX

Page

ACCOUNTANTS See Professions

AGRICULTURE (Code Title 5) Commissioner of Agriculture: Dairy Products : Enforcing sanitary conditions...................... 3 Milk powder law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 See Food and Drugs Director of Markets: Fruits and vegetables, power to establish grades. . . . . . . 12

ANIMALS See Live Stock

ATTORNEYS AT LAW (Code Title 9) See Public Revenue

AUTOMOBILES See Motor Vehicles

BANKS AND BANKING (Code Title 13) Legal holidays, effect of......................... . . 14 Period of charter of merged banks................... 15

BONDS See Education

BOUNDARIES AND JURISDICTION OF THE STATE (Code Title 15)
Boundary line between Georgia and Tennessee........ 18

CATTLE See Live Stock

CHIROPRACTORS See Professions

CIVIL ENGINEERS See Professions

COMMISSIONER OF AGRICULTURE See Agriculture

COSTS See Courts

COUNTY SUPERINTENDENT OF SCHOOLS See Education

COURTS (Code Title 24)

Jus.tices of the Peace:

Are not county officers, but are officers of the State..... 25

Justice Court is not a court of record................ 25

Ordinaries :

.

Court of Ordinary is a court of record... . . . . . . . . . . . 26

189
Page
Power of Ordinary and Clerk of the Court of Ordinary distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Superior Courts : Judges reimbursed from court contingent fund for stamps 29 Sheriffs not exempt from Selective Service. . . . . . . . . . . 30
DAIRIES AND DAIRY PRODUCTS See Agriculture; Food and Drugs
DEAD BODIES See Public Health
EDUCATION (Code Title 32) Defense work areas, obligation to furnish schools. for, discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Married persons within school age, whether schools can be denied....................................... 35 Military service entitles teacher to re-employment. . . . . . 38 Teachers not required to register under Federal Social Security Act.................................... 39
County Board of Education: Audit of county affairs not an expense from public school funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Liability insurance for school buses, not required to carry 41 Teacher, not compelled to elect teacher recommended by Local Board.................................... 42 Terms of members, and commission of successors...... 44
County School Superintendents : Clerical salaries cannot be paid from public school funds. 51 Eligible to be Secretary-Treasurer of Local Board, when 53
Local School Districts : Commission allowed Secretary-Treasurer, when....... 54 Election expense for election of trustees. . . . . . . . . . . . . . 55 Treasurer not entitled to commission on bond tax. . . . . . . 56
Local School District Bonds : Funds from bonds may be used only to retire principal and interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
State Board of Education : Certificate required as prerequisite for charter of professional schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Vocational trade school, right to assume indebtedness of, discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Vocational trade school, whether State Board can operate, discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Vocational Education : Scottish Rite Hospital, furnishing schools for, discussed 68 Separation of schools for white and colored races...... 69

190
Page
EGGS See Food and Drugs
ELECTIONS (Code Title 34) June General Qualifications of voters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Primary and General : Qualifications of voters. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Voting by mail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Special: Qualifications of voters. . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
FISH AND FISHING See Game and Fish
FOOD AND DRUGS (Code Title 42) Chief Drug Inspector : Drug addicts cannot be committed to hospital solely because of such. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Drugs, chief drug inspector has power to condemn, how 84 Osteopath cannot lawfully prescribe barbiturics. . . . . . . 85 Dairies and Dairy Products : License and price control at military reservation....... 89 Sanitary control of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Eggs: Inspection and fees on out of State shippers. . . . . . . . . . 98 Inspection and fees, shipped to army camps by non-resident dealers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
FORESTRY AND GEOLOGY (Code Title 43) Department of Natural Resources: Permission for body to be interred in State Park cannot be given. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
GAME AND FISH (Code Title 45) Wholesale fish dealer's license: Veteran's certificate of disability not exempt from payment of ......................................... 103
GENERAL ASSEMELY (Code Title 47) Member may resign ............................... 104
GUARDIAN AND WARD (Code Title 49) Insane person may be committed to Milledgeville under Code Section 49-612. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
HEALTH See Public Health
INDUSTRIAL RELATIONS (Code Title 54) Unemployment compensation act amended ............ 107
INSANE PERSONS See Guardian and Ward

191
Page INSURANCE (Code Title 56)
License and regulation of company doing business on military reservation .............................. 109
Premium tax not abated for ownership of U. S. bonds non-taxable .................................... 115
Rates for National Defense Projects determined by Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
State fire inspector, powers, duties, subpcenas for witnesses ........................................... 121 Workmen's compensation retrospective rating plan un-
lawful ......................................... 127
JUSTICES OF THE PEACE See Courts
LIVE STOCK (Code Title 62) "Brucellosis" may be substituted for "Bang's Disease" when ....................... ; .................. 127 Rabies, State funds to immunize from, when. . . . . . . . . . 129
LUNATICS See Guardian and Ward
MILK See Food and Drugs
MOTOR VEHICLES (Code Title 68) Bicycles meeting other vehicles must pass to the right. . 130 Trucks of county unit fire protective organization exempt from Federal Use Stamp ......................... 131
NOTARIES PUBLIC AND COMMISSIONERS OF DEEDS (Code Title 71)
Commercial Notaries Public : Citizenship requirement for appointment. . . . . . . . . . . . . . 132 Eligibility of persons serving in the armed forces. . . . . . . 136 Powers ......................................... 140
ORDINARIES See Courts
OSTEOPATHS See Professions; Food and Drugs
PENAL INSTITUTIONS Parole orders, compensation of Clerks for recording .... 140 Parole orders, compensation of Clerks for recording.... 142 Term of convict serving part of sentence outside jail. ... 143
PROFESSIONS (Code Title 84) Accountants : Board clothed with discretion as to applicant's moral character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 144 "Company" may be used as trade name provided all associates hold license ........................ , ...... 147

192
Page
Non-residents may qualify for license and practice, how 149 Residence requirements for license as affected by military
service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Chiropractors :
May not use electricity (except electricity x-ray photography) ..................................... 153
Embalmers.: Persons under 21 can be examined but cannot be licensed 157
Engineers: Corporation may engage in professional engineering, when .......................................... 158 Engineer devoting whole time for county is not exempt from license .................................... 161
Pharmaceutical : Merchants may sell turpentine, etc., in unsealed packages in bulk ......................................... 162
Real Estate Board : Cemetery company selling lots through agents subject to license . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
PUBLIC HEALTH (Code Title 88) Distribution of unclaimed dead bodies. . . . . . . . . . . . . . 167 No duty of Board to certify numbers of births and deaths, when. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
PUBLIC REVENUE (Code Title 92) Fees of Tax Collectors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Veteran holding disability certificate not exempt from professional tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
PUBLIC SAFETY (Code Title 92 A, pocket part supplement)
Georgia State Patrol : Power of Ordinary to take and forfeit appearance bonds in traffic cases, discussed ......................... 175
ROADS (Code Title 95) State Highway Department: Tolls on State-aid system road cannot be collected by county . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
SCHOOLS See Education
SCHOOL BOOKS See Education
SHERIFFS See Courts.
STATE HIGHWAY DEPARTMENT See Roads

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VEHICLES See Motor Vehicles
VETERINARIANS See Live Stock
VETERANS See Game and Fish; Public Revenue
WORKMEN'S COMPENSATION (Code Title 114) Public liability premium cannot be paid from public school funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
See Insurance