Opinions of the Attorney General August 1945 - December 1947

OPINIONS
of
THE ATTORNEY GENERAL
AUGUST 1945- DECEMBER 1947
EUGENE COOK
Attorney General
CLEBURNE E. GREGORY, JR., Compiler
P1-inted by TYLER & CO. HAPEVILLE, GA.

REGISTER OF DEPARTMENT OF LAW
August 1945 - December 1947
EUGENE COOK Attorney General
C. MARION DoBBS ..............................................................................................1945R. A. l\lcGRA'v ....................................................................................................1945CLAUDE SHAW ....................................................................................................1945JOHN SAMMONS BELL ......................................................................................1947E. E. DORSEY ......................................................................................................1947A. J. HARTLEY ..................................................................................................1947WRIGHT LIPFORD ................................................................................................1947H. E. NICHOLS ..................................................................................................1947HENRY N. PAYTON ............................................................................................1947-
EMIL J. CLO,VER ............................................................................................1945-1946 VICTOR DAVIDSON .............................................................................................1945-1947 DANIEL DUKE ................................................... ~................................................1945-1947 JOHN H. GODDARD ..............................................................................................1947-1947 CLEBURNE E. GREGORY, JR.............................................................................1946-1947
L. c. GROVES .....................................................................................................1945-1947 R. u. HARDEN ...................................................................................................1945-1947
R. BEVERLY IRWIN ............................................................................................1945-1947 PHIL M. LANDRUM ............................................................................................1946-1947 CRAWFORD L. PILCHER ......................................................................................1945-1945 N. J. SMITH .......................................................................................................1945-1945 RoscoE THOMPSON ............................................................................................1946-1946
Assistant Attorneys General
II

ATTORNEYS GENERAL
Henry P. Farrer ...........................................~.................................................. 1868-1872 N. J. Hammond ................................................................................................1872-1877 Robert N. Ely ....................................................................................................1877-1580 Clifford L. Anderson ........................................................................................1880-1890 George N. Lester ..............................................................................................1890-1891 ,V, A. Little ......................................................................................................1891-1892 J. l\I. Terrell ......................................................................................................1892-1902 Boykin Wright ..................................................................................................1902-1902 John C. Hart ......................................................................................................1902-1910 Hewlett A. Hall ................................................................................................1910-1911 Thos. S. Felder ................................................................................................1911-1914 'Varren Grice ....................................................................................................1914-1915 Clifford Walker ................................................................................................1915-1920 R. A. Denny ......................................................................................................1920-1921 George l\I. Napier ............................................................................................1921-1932 Lawrence S. Camp ............................................................................................1932-1932 1\I. J. Yeomans ..................................................................................................1933-1939 Ellis G. Arnall ....................................................................................................1939-1943 Grady Head ..........................................................................................................1943-1945 Eugene Cook ........................................................................................................1945-
III

PREFACE
During the period from August 22, 1945, through December 1947, the Attorney General was requested to rule upon many questions which became the subject matter of litigation. This resulte:d from the ratification of a new State Constitution on August 7, 1945, from fundamental statutory changes in the administration of the school system, and from the election of Eugene Talmadge as Governor in 1946 and his subsequent death before he could be inaugurated to that office. For reference purposes, citations to such cases appear on the same pages as the opinions affected.
The Attorney Gentral receives many requests for opinions involving questions which do not affect the interests of the State and which consequently do not come within the scope of his statutory powers and duties. These requests are usually answered for the purpose of assisting the officials of the local subdivisions of the state and the general public in a solution of their legal problems. However, it is pointed out that the answer is merely an expression of the personal views of the Attorney General and is not binding upon anyone. While this language has been eliminated from the unofficial opinions included in this volume, the unofficial opinions are so designated.
A report of the operations of the State Law Department for the calendar year 1947 is included so that the reader may be informed of the nature and volume of work which is handled by the State Law Department.
In the back of the volume. is a list of cases decided by the appellate courts in which the Attorney General and the State Law Department appeared. This list does not include the large number of cases handled by the Attorney General's office in the trial courts during the same period.
Only those opinions which are believed to be of general interest to members of the bar, or of assistance to officials of the state and of its political subdivisions have been included. It is hoped that the publication of the opinions will serve that purpose: and that this office may continue to be of service not only to various departments of state government, but also to the officials of the political subdivisions of the state and to the public generally.
EUGENE COOK Attorney General
IV

TABLE OF CONTENTS
Part I. Report of the State Department of Law for 1947______VII Part II. Opinions of the Attorney GeneraL__________________________XXV Part III. List of appellate court cases______________________________________665 Part IV. Index to opinions_________________________________________________________671
v

PART I Report of the Operations of The State Department of Law
for 1947
VII

TO THE PEOPLE OF GEORGIA: The first Article of the Constitution of Georgia provides:
"Public officers are the trustees and servants of the people, and at all times amenable to them". Pursuant to this provision of the Constitution, I am respectfully submitting to the people in this volume of my opinions a report on the conduct of the business of the State Law Department.
Sincerely yours, The Attorney General
VIII

"I believe this to be the strongest government on earth . . . the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own concern."-Thomas Jefferson, in his first inaugural address.
IX

INDEX
Duties and Powers of the Attorney General and the Department of Law----------------------------------------------------------- XIII
Organization and Expense of Operation of Law Department during 1947---------------------------------------------------- XV
Important Cases Handled in 194 XVI 7-------------------------------------------Governorship Cases ---------------------------------------------------------- XVI County Unit Case______________________________________________________________ XVII Jekyll Island Acquisition__________________________________________________ XVII The Klan and The Col umbians________________________________________ XIX The Ports Authority Case________________________________________________ XIX Railroad Tax Exemption Cases__________________________________________ XIX
Summary of Cases, Opinions, and Bills prepared for General Assembly during 1947-------------------------------------- XXI
Summary of Monies Accruing to the State through the Department of Law in 1947---------------------------------------------- XXII
Appendix Legal Division-Highway Department___________________________XXIII
XI

DUTIES AND POWERS OF THE ATTORNEY GENERAL AND THE DEPARTMENT OF LAW
Prior to the Reorganization Act of 1931 each State agency employed its own attorneys. The Attorney General's duties were: limited to the few then specified in the Constitution and laws. By the Act of 1931 and later amendments, the Department of Law was created, the Attorm;y General was made its chief, the legal affairs of the State were entrusted to it, and, except in a fe:w instances, employment of counsel by individual State agencies was prohibited.
Section 40-1614 of the Annotated Code of Georgia provides that: "The Department of Law is hereby vested with complete and exclusive authority and jurisdiction in all matters of law relating to every department of the State other than the judicial and legislative branches thereof. The several departments, commissions, institutions, offices and boards of the State: Government are hereby prohibited from employing counsel in any manner whatsoever."
The Governor is empowered, with the consent of the Attorney General, to employ special counsel where deemed necessary. This is done at times where highly specialized and technical knowledge is required, as in rate cases; where, for some reason, local counsel can more efficiently cope with local conditions, as in cases involving land titles; and in other cases, such as the recent gubernatorial controversy (Thompson vs. Talmadge, 201 Ga. 867), where limited time, the importance of the issue and like factors make additional counsel advisable for the best interest of the State. Such appointees are known as Deputy Assistant Attorneys General, and are appointed to deal with special cases or to represent special branches of the State Government for a limited time; but the bulk of the State's legal affairs is handled by the comparatively small regular staff of the Department, which is largely responsible for the value of the Department to the State, as demonstrated by the figure!! contained herein.
In addition to actual litigation, the Attorney General has imposed upon him by Constitution and Code some forty-five specific duties, such as the approval of certain bonds and insurance policies, acting as a member of the Department of Public Safety, the State Hospital Authority and other agencies, the approval of contracts, the preparation of deeds, and similar duties in relation to State business such as a lawyer generally performs for his client.
One of the most important of his functions is complying with the requirement of law that he give his opinion to the Governor or the head of any Department of the State, when requested to do so, on any question of law connected with the interest of the State. Since these opinions guide the State agencies in applying the law to the activities of their respective departments, the administration of which often vitally affects the public, they are prepared and released only after intensive research. These are known as "official" opinions, and are binding unless, if challenged in Court they are reversed by judicial decision, or unless legislative action makes them inapplicable.
The Department receives many inquiries from individuals in Georgia and
XIII

othE:r States, from municipal and county officials, from civic agencies, information bureaus, persons intending to enter business in Georgia, and others, as to the provi~ions and interpretations of Georgia law3. Where no actual controversy or litigation is involved and the questioner is seeking only general information, the Department, as a matter of courtesy and service, replies to the question. Such opinions are known as "unofficial" opinions and are not regarded as authoritative or binding upon any person or department.
All official opinions are signed and released by the Attorney General. Unless so signed and released, opinions are unofficial.
The service given by unofficial opinions is not required by law. Georgia has no central information bureau such as exists in many States; and it is felt that the Department, in answering these questions, renders a necessary service to the citizens of our State and distributE:s information about Georgia to other States, and even to other countries.
XIV

ORGANIZATION AND EXPENSE OF OPERATION O:F LA\V DEPARTMENT DURING 1947
As of December 31, 1947, the Law Department consisted of the following:
The Attorney General 8 Assistant Attorneys General 6 Deputy Assistant Attorneys General 4 Law Clerks 1 T(;mporary Typist 9 Secretaries 1 Cashier-Bookkeeper 1 Receptionist 1 Porter
The salaries of the Attorney General and of the Assistant Attorneys General are fixed by law-the Assistants receive $5,000.00 annually, and the Attorney General $7,500.00. Compensations for Deputy Assistants are fixed by the Governor. The total overall cost of operation of the Department in 1947, including traveling expenses, salaries, fees to all Deputy Assistants, and other expenditures, such as the Freight Rate Case, was approximately $164,000.00. A detailed report on this expenditure is filed with the State Auditor, as required by law. A summary of monies accruing to the State through litigation of the Department in the single year 1947, as shown in detail on Page XXII, clearly indicatEos how well the Department is made a financially self-sustaining Department of the State Government. The total of such monies as accrued from litigation in 1947 is $1,497,600. 79, which, on a money-litigation basis alone would pay the expenses of the Department for approximately ten years, based on the 1947 expense outlay.
The State Government has forty-five State Departments and approximately sixty sub-agencies, each of which is dependent entirely upon the State Law Department for legal advice, opinions and litigation. The legal business of these Departments and sub-agencies is handled by the staff of the State Law Department under a procedure which requires research, experience and extensive acquaintance with the laws governing the different Departments and sub-agencies.
XV

GOVERNORSHIP CASES.
The hardest fought and most far-reaching cases prosecuted by the Attorney General in 1947 were what are commonly referred to as the "Governorship Cas:s". These cases flared into headlines throughout the world. They are sometimes spok:n of as "Georgia's Dual Governorship Cases".
For sixty-three days two persons claimed executive power-M. E. Thomp-
son and Herman Talmadge. The contest was settled at 11:35 A. M. on March
19, 1947, in a 5-2 decision by the State Supreme Court in which it upheld the legal position maintained by the Attorney General and declared M. E. Thompson to be the Acting Governor, and deposed Herman Talmadge, who was in physical possession of the Governor's office.
Following the death of Governor-Elect Eugene Talmadge on December 21, 1946, before he could be inaugurated, a flurry of speculation was rampant over the question of who would succeed to the offic: to which Eugene Talmadge had been elected. Thompson, who had been elected Lieutenant Governor in the 1946 campaign, claimed the right to succeed to the office of Governor, and Talmadge supporters started a whirlwind campaign to have the 1947 Legislature elect the lat: governor-elect's son, Herman Talmadge, to fill the term his father had won. They predicated their campaign upon the theory that the General Assembly should elect Herman Talmadge on "write-in" votes cast for him in the November general election.
Ellis Gibbs Arnall, the incumbent Governor, r:quested an official ruling of the Attorney General on whether the Legislature could legally elect a Governor under the existing circumstances. On January 3, 1947, before the convening of the General Assembly, the Attorney General ruled that under the circumstances the Legislature had no constitutional authority to elect a Governor and that he, Arnall, was duty bound under the Constitution to remain Gov:rnor until his successor was duly elected and qualified.
Notwithstanding the position of the Attorney General, the Legislature did elect Herman Talmadge Governor in a dramatic session under the guise that the Constitution authorized such action when "no person shall have such a majority" of votes in the general election.
A tedious count of the November el:ction ballots showed that Herman Talmadge received 575 "write-in" votes for Governor, more than the "write-in" votes cast for James V. Carmichael and D. Talmadge Bowers. It was on the strength of these votes that Herman Talmadge was elected by the Legislature.
Following this action by the General Assembly, Herman Talmadge forced incumbent Governor Arnall out of the executive offices and proceeded to occupy th:m and to claim executive power.
The Attorney General immediately filed a petition for declaratory judgment against Mr. Talmadge to resolve the issue of the double governorship. Meanwhile the Fulton National Bank filed a petition seeking to enjoin Lt. Governor Thompson and his Executive Secretary, Phil Landrum, from withdrawing approximately $95,000 in Executive Department funds until it was determined who could legally mak: such a withdrawal.
Upon the resignation of the incumbent Governor Arnall, and upon the qualifying of Thompson, the Attorney General immediately recognized Thompson as the rightful claimant to the governorship. After filing the original petition for declaratory judgment, he filed a petition to det:rmine Mr. Thompson's
XVI

right to demand budgetary information from the State Pardon and Parole Board.
The first: two of these cases were heard before Superior Court Judges Bond Almand and Walter C. Hendrix in McDonough, seat of Henry County, Georgia, where Herman Talmadge legally resided. In both these actions Talmadge prevailed, and the cases were immediately appealed to the Supreme Court.
In the meantime the case involving the issue of budgetary control was tried before Judge Claude Porter of Rome, seat of Floyd County, Georgia, where a member of the Pardon and Parole Board resided. The contention of the Attorney General in that case was sustained by Judge Porter, and same was appealed to the Supreme Court. By agreement of counsel, with the approval of the Supreme Court, all three cases were consolidated in oral argument March 6, 1947.
On March 19-only three days before adjournment of the Legislature, the Supreme Court rendered its decision. The majority decision was written by Presiding Justice Henry Duckworth in which the Court solidly upheld the opinion of the Attorney General to the effect that the General Assembly had no right to elect a Governor under the circumstances. More specifically, the majority decision held that the clause under which the Legislature claimed to have power to elect had no application where a candidate for Governor actually received a majority vote in the general election. As pointed out heretofore, the late Eugene Talmadge had received such a majority vote. It was contended by counsel for Herman Talmadge that the issues involved were purely political, and that the Supreme Court had no authority to review the action of the General Assembly. The majority decision was concurred in by Justices Duckworth, Lee B. Wyatt, R. C. Bell, T. Grady Head, and William Y. Atkinson. Chief Justice W. Frank Jenkins and Associate Justice Tom Candler dissented.
The Supreme Court's decision rendered null and void all the actions of Herman Talmadge during his 63 days stay in the Executive Department. Talmadge immediately vacated, and the General Assembly adjourned three days thereafter.
These cases were equalled in importance by the County Unit cases, decided in the latter part of 1946, which resulted in a decision of the Supreme Court of the United States (Turman et al. v. J. Lon Duckworth, et al., 67 S. Ct. 21) dismissing the appeals from the District Court which had declined to enjoin the county unit system of elections.
JEKYLL ISLAND ACQUISITION:
The General Assembly of 1945 expressed the desire for a State Beach Park and then provided the power under which the Attorney General was authorized to acquire Jekyll Island through Georgia's inherent right of condemnation.
In a Resolution approved March 9, 1945 (Ga. Laws 1945, p. 1243) the Legislature recommended that the State secure one or more beach parks. It asked the Governor and the Parks Director to investigate the feasibility of such a project.
In a law approved January 30, 1945, the Assembly empowered the Governor, Attorney General and State Auditor, by unanimous vote only, to take
XVII

or damage by court condemnation any private property deE:med vital to the State's interest. (Ga. Laws 1945, p. 121). Thus these three officials became a condemnation committee by authority of the Legislature.
(Under the time-honored right of "eminE:nt domain", the State may assert its dominion over any part of the soil within its boundaries on account of public exigency or for the public good.) (Code of 1933, 36-101).
On June 2, 1947, Acting Governor M. E. Thompson, Attorney GE:neral Eugene Cook and State Auditor B. E. Thrasher, Jr. took the first step to carry out the 1945 Legislature's wishes. They announced an investigation had been completed and agreed "unanimously" that it was "necessary and desirable" for the State of Georgia to obtain Jekyll Island and Latham Hammock Islands in Glynn County for use as a beach park.
On the same date, the Attorney General was unanimously directed by the condemnation committee, as authorized by the Legislature, to file proper condemnation proceedings to secure title and possession of the islands.
The committee stated that the owners of the island property (including numerous eastern millionaires, members of the Jekyll Island Club) had refused to sell voluntarily and that some unknown persons might have a claim on portions of the islands.
The Attorney General then advanced the acquisition by filing thE: original condemnation proceeding in the Superior Court of Glynn County, June 6, 1947. The defendant owners were named as: Jekyll Island Club, Incorporated; Miss Cornelia Maurice Wilkinson; Emily Maurice Dall; Margaret S. Maurice; Marion B. Maurice; Archibald S. Maurice; Mrs. Annie L. Wright; and Jekyll Annex Association of Glynn County, Georgia.
Superior Court Judge Gordon Knox ordered that the defendants and any other persons claiming any title or intErest in any of the property appear before him on June 26 to make their claims of ownership and value and state any objections they might have to condemnation.
On June 10, the State amended its petition to ask also for condemnation of Latham Hammock Islands and added to the defendants thE> names of the owners.
After the owners filed demurrers and answers to the State action, the court confirmed selection of appraisers by the State and the owners of the island. The two then selected a third, disinterested appraiser, according to law.
The appraiser for the owners and the disinterested appraiser submitted an award of $850,000 for the property. The State appraiser's award was $675,000. Attorney General Cook objectEod to the majority award and filed an appeal to a jury and Judge Knox set a hearing for October 8, 1947.
The owners came down to the $675,000 award granted by the State's appraiser, and on October 4, 1947, Judge Knox issued the final condemnation decree and judgment in open court.
The Judge's order required the State to pay $675,000 to the ClE:rk of the Glynn County Superior Court, this sum to be distributed to the persons named in his order in the amounts designated by him.
In accordance with the order, State Auditor Thrasher issued a warrant on the State Treasury for the amount, and the Treasurer, George B. Hamilton, issuE:d a check which was countersigned by Comptroller General Zack D. Cravey.
XVIII

The Attorney General dispatched the check by two assistants to the Superior Court Clerk, who in turn issued county treasury checks to the owners designated in the condemnation order.
The State then was given title and took possession of the island property in the final step of acquiring the beach park.
Thus the people's representatives in the Legislature, the courts, the Acting Governor, Attorney General, State Auditor, Comptroller General and State Treasurer executed the legal moves by which Georgia acquired the Atlantic islands.
THE KLAN AND THE COLUMBIANS:
Suits were filed against the Knights of the Ku Klux Klan, and against The Columbians, seeking to revoke the charters of incorporation granted by the State. Both these organizations advocated private use of police powers, tactics of intimidation against Negroes and Jews; and it was felt the sanction of the State government should not be loaned to such activities. The State is, under existing law, helpless to prevent the continuance of the associations so long as there is no overt or provable violation of State law, and so long as the assemblies are peaceable. However, they continue as unincorporated associations, no longer under the guise of chartered benevolent and fraternal organizations. The Law Department was successful in both suits in securing judgments revoking the charters of incorporation, it being found that the charters were secured by fraud in that the true purpose and activities of the corporations were other than those for which the charters were granted.
THE PORTS AUTHORITY CASE:
This was a suit brought by the Attorney General to test the Constitutionality of the Ports Authority to issue bonds on the State's credit. It involved approximately fifteen million dollars and many provisions of the Constitution having to do with the faith and credit of the State. After extended litigation the Supreme Court of Georgia held the Ports Authority statute to be unconstitutional and in violation of constitutional provisions against unauthorized State indebtedness.
RAILROAD TAX EXEMPTION CASES:
These cases arose out of a dispute over the question of whether the Legislature had the power to immunize certain railroads from the payment of property and income taxes. One hundred years ago the Legislature, in granting these railroads charters, provided for perpetual tax exemptions against them. After considerable litigation in the Superior Courts and final adjudication in the U. S. Supreme Court, the State of Georgia won the right to impose income taxes against these railroads. Upon the completion of these income tax cases the State collected approximately $225,000 and had established by law the right of the State to continue to collect income taxes from them. The issues to determine the question of the railroads as to liability for property taxes is now pending in the courts.
XIX

The foregoing cases are examples of the type of litigation the Attorney General's office handled in 1947. No attempt has been made to compile details on ail litigation during that year. Suffice it to say, however, that these cases are outstanding examples of the effect litigation by the Attorney General's office has upon the social, economic and political welfare of the people of Georgia.
Among major cases handled by the State Law Department, bearing directly upon the economic, social and political welfare of the people of Georgia, which originated prior to 1947 and were partially or completely terminated in 1946, include the classic "Freight Rate Case"-State of Georgia vs. Pennsylvania Railroad, et al; the "County Unit Case"-Earl P. Cook vs. Ben W. Fortson, Jr., et al; and the "White Primary Case"-Primus E. King vs. J. E. Chapman, et al.
XX

SUMMARY OF CASES, OPINIONS, AND BILLS PREPARED FOR MEMBERS OF
THE GENERAL ASSEMBLY DURING 1947 (See Appendix-Highway Department)
Total number of cases closed during 1947, and pending as of December 31, 1947 ---------------------------------------------------------------------------------- 222
Number of cases terminating favorably to the State during 1947........ 85 Number of cases terminating unfavorably to the State during 1947...... 11 Number of cases settled after litigation begun, or consent
order taken ---------------------------------------------------------------------------------------- 27 Number of potential cases settled without suit.........................:.............. 2 Cases where suit not yet filed, but negotiations pending........................ 2 Cases moot beforE: decision of Court..------------------------------------------------------ 1 Cases withdrawn before triaL..------------------------------------------------------------------ 5 Cases pending as of December 31, 1947, awaiting decision of Courts.... 89
222
Number of official opinions given during 1947........................................343 Approximate number of unofficial opinions during 1947......................512 Number of bills prepared during 1947 for members of the
General Assembly ------------------------------------------------------------------------------585
XXI

SUMMARY OF MONIES ACCRUING TO THE STATE THROUGH LITIGATION OF
THE DEPARTMENT OF LAW IN 1947
(See Appendix-Highway Department)
Funds collected for the State through court action--------------------------$ 821,059.55
Funds saved to the State by winning in court, or settling after court action begun, damage suits________________________________________________ 561,974.92
Monies claimed by others, but awarded to the State by the courts 114,566.32
TOTAL _-------------------------------------------------------------------------------$1,4 9 7, 60 0. 79
The figures set out. above represent the actual amounts involved in litigation. They do not begin to set out the true monetary value of the services of the Law Department to the State. Such value is almost impossible accurately to reckon.
Other cases which do not involve ascertained amounts are also of monetary value to Georgia citizens-for instance, prevention of the cancellation of Radio Station WGST's contract with Columbia Broadcasting System, prevention of issuance of invalid bonds by the Port Authority, and the freight rate case pending in the Supreme Court of the United States. The money accruing to the citizens of the State through the establishment of non-discriminatory transportation rates is practically incalculable.
Many of the cases comprising those producing revenues also established legal principles which will result in annual future revenue from the same source, as in the railroad tax exemption cases which netted the State in past due taxes over three quarters of a million dollars.
These monies accrued to the State and its people at a total overall cost of $164,000.00, the cost of operation of the Law Department in 1947.
By adding to the $1,497,600.79-the amount of money actually saved and collected by the Department in other departments-the amount collected and saved in litigation, etc., in the State Highway Department, to-wit: $692,903.50, we have a total of $2,190, 504.29 which represents as accurately as we can compute the total collections and savings for the State in actual litigations. The latter figure is explained in detail in the Appendix under Highway Department-Legal Division, where it is shown that the potential liability of the State Highway Department is placed at $726,923.50, as against $34,020 paid out by the Department as a result of successful litigation or negotiation by the Law Department.
XXII

APPENDIX
REMARKS
Because of the voluminous amount of turnover in the State Highway Department involving legal matters handled by the State Law Department, the following brief resume is given special treatment in this report as a matter of information.
(Highway Department-Legal Division)
Eugene Cook, Attorney General
HE:nry N. Payton, Assistant Attorney General
E. L. Reagan, Assistant Attorney General
1\I. H. Blackshear, Jr., Assistant Attorney General
The division of the State Law Department assigned to the State Highway Department, as now constituted, consists of three Assistant Attorneys General under the supervision of the Attorney General. Mr. Payton was assigned to the State Highway Department on May 1, 1947, Mr. Reagan was assigned on February 15, 1948, and Mr. Blackshear was assigned on April 1, 1948. Prior to the assignment of Mr. RE:agan, Mr. R. A. McGraw was assigned and had been with the Department from May 15, 1947, until his sudden and untimely death on February 6, 1948.
The Legal Department has many varied duties. Many of the duties are set out as follows:
1. Advising with and furnishing legal counsel to the State Highway Commission and the Director of the State Highway Department.
2. Advising the many department heads of the State Highway Department on problems involving legal questions. The Legal DE:partment is called upon on many occasions to confer with the Director and Department heads to discuss the problems which may involve future legal complications.
3. The Legal Department assists in the drawing of special contracts, leases, etc., and approves all contracts, insurance policies, leasE:s and permits for the use of portions of the highway rights of way.
4. The Legal Department reviews all claims made upon the State Highway Department and makes investigations of such claims where necessary. This Department invE:stigates all claims growing out of controversies between the Highway Department and any person, firm or corporation, as a result of breaches of contracts, and brings suits or defends suits which result from such controversies.
5. The Legal Department must prepare and defend all suits against counties for damages resulting from defects in bridges and approaches that are on the State-aid system, when the county vouches the State Highway Department into court to defend such action as provided by law. Such suits must be personally investigated by the Legal Department and the evidence accumulated by the Attorney handling the case.
XXIII

During the preceding eighteen months, the following suits have been filed and handled or are now being handl:d by this Department.

Total Amount

Damage Suits

of Suits

66 ------------------------------------------ $1,059,82 9.67

The above 66 law suits are broken down as follows:

Now Pending

Number

Against State Highway Dept. ------------------------------------ 16 By State Highway Department ........................................ 2

Aw:.unt $ 241,679.26
91,226.91

Cases Handled 1947-48

Against State Highway Dept.

48

TOTAL .............................................................................. 66 Potential liability ...................................................... Potential asset ..........................................................
TOTAL ..............................................................................

726,923.50
$1,059,829.67 968,602.76 91,226.91
$1,059,829.67

Number 48

CASES HANDLED--RECAPITULATION

Potential Liability $726,923.50

Amount Paid By State Highway Department
*' $34,020.00

* Of the amount of $34,020.00 paid out by the State Highway Depart-
ment, $17,000.00 was paid on three law suits for the amount of $138,828.48 that were handled by the Claims Committee. This deducted from the above leaves 45 cases handled by the Law Department with a potential liability of $588,095.02 which result:d in judgments or settlements for the total sum of $17,020.00.
In addition to the above damage suits, the Legal Department has handled a total of four claims on behalf of the State Highway Department totaling $1,950.82, which total amount was collected; nine suits for injunction; eight garnishment cases; reviewed, investigated where necessary and approved or disapproved a total of thirty-eight claims against the State Highway Department. Assistance is also provided in numerous condemnation suits for rightsof-way. This is a total of approximately 124 law suits or potential law suits handled by the Legal Department during the eighteen months period ending June 30, 1948.
In addition, this Department has reviewed and passed or otherwise acted upon approximately 450 permits of various types and approximately 850 soil pit options during the eighteen months immediately prior to Jm.e 30, 1948.

XXIV

PART II Opinions of the Attorney General
XXV

1

CONSTITUTION OF THE STATE-Legislation House Bill No. 720, 1946, is unconstitutional as referring to more than one subject matter.

Hon. Ellis Arnall

January 31, 1946

Governor of Georgia I am in receipt of your letter of January 31 in which you ask my official

opinion as to the constitutionality of House Bill No. 720. House Bill No. 720 proposes to amend Section 20-506 of the Code of Georgia

relating to obligations to pay attorney's fees upon notes and other evidences

of indebtedness, and to amend Section 6-906 relating to the certification of bills of exceptions where there is a vacancy in the office of the Judge of the

Superior Court.

It is my opinion that the bill is unconstitutional because the two subject

matters referred to therein nre wholly unrelated and ungermane one to the

other, and therefore in direc1 conflict with Article 3, Section 7, Paragraph 8 of the Constitution as amended, which provides as follows:

"Paragraph VIII. One subject matter expressed. No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof."

CONSTITUTION OF THE STATE-Legislation The Act of 1945, p. 883, is unconstitutional as containing matters different and not germane to that expressed in the title.
June 20, 1946 Hon. Ellis Arnall Governor of Georgia
Your letter of June 17th, enclosing telegram from Representative E. L. Gammage, received. You requested my official opinion on the constitutionality of House Bill No. 206, approved March 6, 1945 (Ga. L. 1945, p. 883).
On June 17th Honorable James R. Blair, Chairman of Sumter County Democratic Executive Committee, wrote me stating that their committee adopted a rule providing that candidates for the General Assembly should receive a majority of the votes polled. He referred to the Act which you have requested that I construe, which provides that persons running for the General Assembly shall receive a plura!ity of the votes cast in the election. He requested that I advise which of the two candidates should be declared the nominee by the County Executive Committee. I advised Mr. Blair that the questions presented in his letter were matters that had to be determined solely by the Executive Committee, or by the State Democratic Executive Committee. I considered it highly Improper for me to undertake to advise the Executive Committee or to pass upon the rights of the two contenders to the nomination as candidates for the General Assembly.
I am still of the opinior. that the matter is one which does not involve any interest of the State aml that I should not undertake to pass upon the question or to give advice therein. Should the contest between the two candi-

2
dates finally get into the courts, the constitutionality of the Act would be one for the court's determination.
The title to the Act provides as follows: "An Act to require candidates in primary elections for members of the
General Assembly in Sumter County to specify the particular incumbent which they desire to oppose or succeed. To require the preparation of ballots accordingly; and for other purposes.."
Section 1 of the Act after providing that persons seeking to qualify as candidates for representative in the General Assembly from Sumter County shall specify the candidate or incumbent whom he desires to oppose or succeed, which according to the title of the Act is the purpose of the Act, provides as follows:
"The candidate receiving a plurality of the votes cast for candidates for such office shall be declared the nominee therefor."
The purpose of the Act was to require candidates for the General Assembly in primary elections to name the incumbent which they sought to oppose or to succeed and to direct that the tickets be prepared accordingly. The title does not contain any provision showing any intent or purpose to provide the vote necessary fol' nomination. The part providing that the candidate shall receive a plurality of the votes does not seem to be germane to the purpose of requiring the candidate to specify the person who he desires to oppose or succeed. If the provision is not germane to the declared purpose as shown by the title, the Act would come within the provisions of Paragraph 8, Section 7, Article 3 of the Constitution of 1945 which provides that no law shall pass which refers to more than one subject-matter or contains matter different from what is expre,;sed in the title thereof, and within the rule pronounced by the Supreme Court of Georgia in Bass v. Lawrerl:e, 124 Ga. 75; Corenblum v. The State, 153 Ga. 596; McGregor v. Clarke, 155 Ga. 377 and Black v. Jones, 190 Ga. 95.
Each of these decisions hold that an Act, or certain provisions of an Act, which contain matters differl:'nt and not germane to the purpose as expressed by the title violates the Constitution.
I have given you, as stated above, my private view af'i to the constitutionality of the Act; however, this view is not binding either upon Mr. Gammage or Mr. Perlman, the two high candidates in the primary held in Sumter County for the nomination of candidates for the General Assembly.. As stated in my letter to Mr. Blair the question should be determined by the: County Democratic Executive Committee, or by a contest before the State Democratic Executive Committee.

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CONSTITUTION OF THE STATE-Local Legislation (Unofficial) (1) The 1945 Constitution requires notice of intention to apply for local legislation to be published once a week for three weeks during a period of 60 days immediately preceding its introduction. (2) The notice of intentiOn to apply for local legislation must be sufficient to put the citizens on notice as to the general nature of the proposed legislation.
November 9, 1945
Hon. Robert L. MeWhorter Executive Department Athens, Georgia
I am pleased to acknowledge your letter of November 9th, in which you request information on the following questions:
"(1) When are the latest dates that a local bill can be advertised to conform to constitutional requirements for introduction and passage in the January 1946 session of the Gene1al Assembly?"
"(2) What must be the form of the advertisement? That is, what does the term 'title' mean and how much must be included therein?"
Your first question is answered by Paragraph 15 of Section 7 of Article 3 of the Constitution as amended. This Paragraph provides in part as follows:
"No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the newspaper in which the Sheriff's advertisements for the locality affected are published, once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly. No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author to the effect that said notice has been published as provided by law. . . ."
The above provision of the Constitution requires that notice of intention to apply for local legislation must be published "once a week for three weeks during a period of 60 days immediately preceding its introduction into the General Assembly."
Section 47-801 of the Code required publication to be made 30 days before the introduction of the bill in the General Assembly. Of course the Act of the Legislature must give way to the Constitution as amendE:d, and therefore the 60 day provision contained in the amended Constitution must prevail. It is necessary for the advertisement to have been commenced during a period of 60 days immediately preceding the introduction of the bill in the General Assembly.
Your second question as to what the term "title" means, and how much must be included therein, seems to have been answered by the Supreme Court of Georgia in the case of Wright v. FultQn County, 169 Ga. 354, where the Court in passing upon a similar question, held:
"This provision of the CJnstitution does not require that the title should contain a synopsis of the la1. The general object of the law is all that need be indicated by the title. Provisions germane to the general subject-matter embraced in the title of an act, and which are designed to carry into effect the purposes for which it is passed, may be constitutionally enacted therein,

4
though not referred to in the title otherwise than by use of the words, 'and for other purposes.' "
It seems that the title ur notice of the intention published in the local paper must be sufficient to put the local citizeno:; on notice as to the general nature of the proposed legislation. The general object of the law is all that need be indicated by the title as the Court held in the above stated case.

CONSTITUTION OF THE STATE-Local Legislation (Unofficial) Local legislation passed after the adoption of the 1945 Constitution which does not contain any evidence in the enrolled act of publication of notice is unconstitutional.*

Hon. E. D. Patrick Jackson, Georgia

March 8, 1946.

You inquire whether a local bill passed at the recent session of the General

Assembly and approved by the Governor, but which was not advertised as required by Article 3, Section 7, Paragraph 15 of the New Constitution, is constitutional. An examination of the enrolled act (SB 235, G.630), filed in the office of the Secretary of State discloses that it does not contain any reference to advertisement.

Article 3, Section 7, Paragraph 15 of the New Constitution contains the following provision:

"No local or special bill ~hall be passed, unless notice of the intention to apply therefor shall have been published in the newspaper in which the Sheriff's advertisements for the locality affected are published, once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly. No local or special bill ~hall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effEct that said notice has been published as provided by law.''

Clearly the constitution intended that every local bill should be advertised before being passed. However, in the case of Williams v. MacFeeley, 186 Ga. 145, the Supreme Court of Georgia held as follows:

"A duly enrolled act, ~mthenticated by the presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, is conclusively presumed to have been enacted in accordance with constitutional reljuirements, and it is not permissible to .show the contrary by extrinsic evidence.''

The Constitution of 1877 also required publication of local bills, but it did not contain the provision that "No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effEct that said notice has been published as provided by law.'' Following the same principle expressed in the case of Williams v. Ma:::Feeley, supra, the courts refused to go behind the enrolled act in the office of the Secretary of

*So held in Smith et al. v. McMichael et a)., 45 S.E. 2d 431, decided Oct. 24, 1947.

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State to determine whether local bills had been published as required by the constitution of 1877..
It is my view that the quoted sentence was added to the new constitution for the purpose of enabling the courts to determine whether the requirements as to publication of local bills has been complied with. This provision makes evidence of publication "a part of the bill," and therefore the enrolled bill sent to the Governor for approval and thereafter deposited in the officE: of the Secretary of State should show that the required .publication has been made. Under the new constitutional provision it is not necessary to go behind the enrolled act in the office of the Secretary of State to determine whether publication has been made. TherE:fore, while this is a matter which only the courts can determine, it is my personal opinion that a local act which does not contain any evidence of publication is unconstitutional and void, and that the courts will look to the enrolled act to see whether it was duly published.
AGRICULTURE-Entomology The Department of Entomology is the proper agency of the State to enforce the Bee Disease Law.
February 5, 1946 Hon. C. H. Alden Director of Entomology
This will acknowledge your letter datE:d January 30, in \Vhich you request an opinion with respect to the legality of the Georgia Department of Entomology enforcing the Bee Disease Law of 1920 as amended, and with which you enclose an opinion of Judge M. J. Yeomans, former Attorney General of . Georgia, stating that the Department of Entomology is the proper State agency to enforce such law.
By an Act approved Ac.gust 16, 1920 (Ga. L. 1920, pp. 160-163) the General Assembly undertook to prevent the introduction into and dissemination within the State of contagious and infectious diseases of honey bees, to provide for the eradication of bee diseases, and to provide methods for the enforcement of the Act. The Act provided that the State Board of Entomology created by Stction 2120 of the 1910 Code should be the proper State agency to enforce the provisions of the Act. Tl:.is Act was amended by an Act approved August 12, 1921, (Ga. L. 1921, p. 260) but the amendmmt did not change the agency which was vested with the enforcement of the law.
By Section 98 of the Reorganization Act of 1931 (Ga. L. 1931, pp. 7, 41) the State Board of Entomology was abolished and all of its powers, duties and functions were transferred to and made incumbent upon the State Entomologist. which office was created by the same section of the RE:organization Act. Accordingly, when the Act of 1920 as amended was re-enacted as Chapter 5-9 and Sections 5-9929 and 5-9930 of the Georgia Code of 1933, the State Entomologist was substituted for the State Board of Entomology as the proper agency of the State government to administer thE: provisions of the Bee Disease Law.
By the Entomology Act of 1937 (Ga. L. 1937, pp. 659-671) the General Assembly created a State Department of Entomology under the direction and supervision of a State Entomologist, which office was also created by the

6
proviSions of the Act, and specifically repealed Chapter 5-7 of Title 5 of the Georgia Code of 1933, which contained the then existing provisions relating to the appointment and removal of the State Entomologist, his salary, powers and duties. By the Entomology Act of 1937 the Legislature conferred broad powers upon the State Entomologist to prevent the introduction into and dissemination within this State of "insect pests and plant diseases." However, this Act did not specifically repeal Chapter 5-9 and Sections 5-9929 and 5-9930, which contained the Bee Disease Law.
There being no specific repeal of the Bee Disease Law in the Entomology Act of 1937, it remains to be considered whether the latter Act repealed the former by implication because it was intended as a substitute for the earlier statute or because the provisions of the two acts are in irreconcilable conflict.
Our Appellate Courts have long recognized the rule that an Act which covers the whole subject matter of an earlier statute and clearly shows that it was intended as a substitute for the earlier one, operates as a repeal of the earlier statute, although the two are not in all respects repugnant. (Thornton v. State, 5 Ga. App. 397) However, this rule does not appear to be applicable to the instant case. The Entomology Act of 1937 which relates to the control of "insect pests and plant diseases" defines that term in Section 2 as follows:
"Insects or closely related organisms injurious to the agricultural, horticultural or other interests of the State, and infectious or transmissible diseases of plants in any stages of development of such insects or disease." It will be noted that this definition refers to "injurious insects." Throughout the entire Act the terms "injurious insects" or "insect pests" are used, thus clearly indicating that the Entomology Act of 1937 was meant to be limited to such types of insects and their diseases. The Act does not contain any language descriptive or inclusive of honey bees or other useful or beneficial insects. That the honey bee is not considered as an insect pest is evident from the fact that the General Assembly in the preamble to the Act of 1920 recited that the production of honey and the sale of honey bees and queen bees has become one of the important industries of the State of Georgia and that a disease of the honey bees having been discovered in the State it was important that steps be taken at once to eradicate such disease and to prevent the further introduction of bee diseases in the State. (Ga. L. 1920, p. 160) Accordingly it is not believed that the Entomology Act of 1937 covered the whole subject matter of the prevention and control of bee diseases, and for that reason operated as a repeal of the earlier statute.
With regard to whether the Entomology Act of 1937 conflicts with, and thus by implication repeals, the Bee Disease Law, the following rules of interpretation are applicable:
All statutes are presumed to be enacted by the Legislature with full knowledge of the existing condition of the law and with reference to it. Botts v. Southeastern Pipe Line Company, 190 Ga. 689.
"Repeals by implication are not favored, and never occur except where the latter act is clearly and indubitably contradictory and contrary to the former act, and the repugnance is such that the two cannot be reconciled. In order to bring about a repeal by implication, the legislative intent must be clear, manifest, and irreconcilable with intent not to repeal." Conner v. O'Brien, 198 Ga. 221.

7
It is dangerous to imply a legislative intent contr-ary to previous legislation from doubtful expressions which may admit of differE:nt interpretations. Trustees v. Atlanta, 76 Ga. 181 (3b); Columbus Mutual Life Insurance Company v. Gullatt, 189 Ga. 747.
When some office or function can by fair construction be assigned to both acts, and they confer different powers to be exercised for different purposes, both must stand, though they were designed to operate upon the same general subject. Adcock v. The State, 60 Ga. App. 207,.
Bearing these general rules of construction in mind, it is obvious that the Entomology Act of 1937 does not by implication repE:al the Bee Disease Laws of 1920 and 1921. The former deals with insects which are pests and which are injurious to the agricultural, horticultural and other interests of the State; the latter with a most useful !\nd harmless insect. There appears to be nothing in the former Act which is repugnant to the latter ones. Although the Entomology Act of 1937 repealed ChaptH 5-7 (and certain other specific sections) of the Georgia Code of 1933 relating to the appointment, powers and duties of the State Entomologist, it did not repeal those duties vested in him by Chapter 5-9 (and certain additional sections) of the Code. It appears, therefore, that the previous powers and duties were only repealE:d and supplanted to the extent that they related to the subjects dealt with in the Entomology Act of 1937 and that he is still the proper officer to administer the provisions of the Bee Disease Law. I find additional support for this view in the opinion rendered by Judge Yeomans, which was attachE:d to your letter, and in reliance upon which the State Entomologist has continued to administer the Bee Disease Law from the time of approval of the Entomology Act of 1937 until the present time, a period of almost nine years. The practic~ of the various Departments of the government as a means of collateral interpretation is accorded substantial weight by the; Appelb.te Courts of this State. Howell v. The State, 71 Ga. 224; Elder v. Home Building and Loan Association, 188 Ga. 113; Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 669.
As stated in the latter case: ''This court, and all other courts, will recogn:ze the practice of co-ordinate departments of government, and allow the construction placed by the officers in such departments upon statutes, and even the constitution, to be operative where there is room for construction." Based upon the forE:going, it is my opinion that the Department of Entomology, under the direction and supervision of the State Entomologist, is the proper agency to enforce the Bee Disease Law.

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AGRICULTURE-Entomology (1) The Director of Entomology may establish a quarantine for the protection of the agriculturl!l, horticultural, and other interests of the State from insects, pests and plant diseases. (2) That the manager of a company was acting for his employer in violating a quarantine established by the Director of Entomology does not relieve him of individual criminal liability.
May 6, 1947
Hon. C. H. Alden Director of Entomology
Your letter of May 1, requesting an official opm10n of the Attorney General as to the proper procedure to punish one for the violation of an authoritative quarantine has been received.
You state that last fall, the manager of a c:mning company, violated the Georgia Pepper Weevil Quarantine by bringing peppers from an infested and quarantined county in Florida into Wayside, Georgia; that the manager readily admitted his guilt, and agre8d with you to plead guilty before the proper Superior Court Judge for s:mtencing; that in spite of this agreement and opportunities to do so, he has not so appeared and pleaded.
In view of these facts, yuu specifically ask the question: "Would it be advisable for me to swear out a warrant for him or continue to try to have him appear before the Judge to try the case without public trial and jury?" By the entomology Act of 1937, the General Assembly precisely vested in the Director of Entomology certain powers and authority for the protection of the agricultural, horticultural, and other interest of the State from insect pests and plant diseases. Among these powers and authority is enumerated that of declaring a quarant:i1e against any area, place, county or counties within this State or other States in reference to dangerous insect pests or plant diseases, so as to prohibit their movement within or their introduction into this State. A proviso as to the placing of such a quarantine requires that the Director of Entomology determine the need therefor after a due investigation in order to protect the interests of the State. The Act as codified, Code Section 5-722, provides in part as follows: "The Director of Entomology is vested with power and authority to enforce the provisions of this Chapter and the rules and regulations made pursuant thereto by writ of injunction in the proper court as well as by criminal proceedings. It shall be the duty of all public prosecutors to represent the Director of Entomology when called upon to do so . ." Again in Code Section 5-726 it is specified in part: "All rules and regulations made by the Director of Entomology within the limits of authority conferred by this Chapter shall have the full force and effect of law ..." By Code Section 5-734 it is stated that: "Whenever the Director of Entomology undet' the provisions of this Chapter shall declare a quarant;_ne against any place, nursery, grove, orchard, county or counties of the St'lte, or against other States, or Tenitories of the United States, or any foreign Country, as to a dangerous insect pest or plant

9

disease, it shall be unlawful thereafter until such quarantine is removed for any person to introduce into this State, or to move, sell or otherwise dispose of within this State any plant, plant produce or other things included in such quarantine, exc:pt under such rules and regulations as may be prescribed by the Director of Entomology."
Code Section 5-736 provides as follows: "In construing and enforcing the provisions of this Chapter, the act, omission or failure of any official, agent or other person acting for or employed by any association, partnership, corporation or other principal within the scope of his employment or office shall in every case be de:med the act, omission or failure of such association, partnership, corporation or other principal as well as that of the individual." The penalty provided for in the event of the violation of the quarantin: prescribed by the Director of Entomology acting within his powers under the Entomology Act of 1937 is stated in Code Section 5-9920 in part as follows: "Any person who shall violate any provision or requirement of Chapter 5-7 (Entomology Act of 1937) or of the rules and regulations made thereunder or of any notice given pursuant thereto . . . shall be guilty of a misdemeanor and upon conviction thereof shall b: punished as provided by law." From the above it is to be perceived that the Director of Entomology acting within the scope of his statutory authority has the power to declare a quarantine; that an individual acting within the scope of his employment or office is responsible as an individual for such violations; that the violation of such a quarantine is punishable as a misdemeanor; and that it is declared to be the duty of the proper public prosecutor to represent the Director of Entomology when called upon to do so.
It is, therefore, my opinion that inasmuch as the accused in the instant case has failed to appear and plead, after agreeing to do so, the proper procedure for the Director of Entomology to follow is to present the evidence to the public prosecutor, in this case the Solicitor General of the Ocmulgee Circuit of the Superior Court, with the request that an accusation be drawn and a bench warrant issued, ordering the accused to appear before the Court. By an arrangement between the parties, and following this proc:dure, it is still possible to try the case without a jury, but it has the advantage of assuring that the acc~sed shall appear at the proper time.

AGRICULTURE-Farmers Markets The Commissioner of Agticulture may establish branch farmers markets.

Hon. Tom Linder Commissioner of Agriculture

October 24, 1945

I am pleased to acknowledge your recent letter in which you state the following:

"Does the Commissioner of Agriculture have authority to establish a branch farmers market where it is determinE:d that the main farmers market serving a given area is incapable, because of distance, of aiding the farmers in marketing their crops and produce throughout that territory?
"It is proposed that the Bureau of Markets operate a branch market under

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the control and management of a main market which is located less than a hundred miles away. We believe that a branch market such as the one now being contemplated, would serve a useful purpos~ in creating a ready market for the farmers who would otherwise be too far away to transport their products to the larger distant market."
While there is no direct statutory authority for branch markets, the provisions of Section 5-208 of the Amended Code are very broad and comprehensive. This SE:ction provides:
"In addition to the powers and duties heretofore given to establish markets and prevent waste of farm products, it is further enacted that the Commissioner of Agriculture is authorized and directed to procure by purchase, lease, rent, gift, or otherwise, as in his discretion he may see fit, necessary market sites in this State on which to conduct farmers markets."
Section 5-221 of the Amended Code provides: "In carrying out the provisions of Sections 5-208 to 5-223, inclusive, the Commissioner of Agriculture shall, and is hereby authorized to use every division of the Department of Agriculture, including the Bureau of Markets, and to exercise powers heretJfore granted in other laws to the Commissioner of Agriculture, the Department of Agriculture, in addition to the powers and duties prescribed in said sections." Section 5-219 of the An' ended Code provides: "The Commissioner of AgriculturE: is authorized and directed, when in his judgment it shall be advisable and necessary, to provide suitable means of communication between the Bureau of Markets and the farmers market or markets established under thb law so as to facilitate the sale and exchange of farm products of all kinds." The above provisions of law clearly give to the Commissioner of Agriculture a wide discretion to be exercised in the locatiOn of necE:ssary market sites in this State. He also is given great latitude in autho!"izing suitable means of communication between the Bureau of Markets and the farmers markets in order to facilitate the sale and exchange of farm products of all kinds. It is my opinion that the LE:gislature in the above statutes has invested the Commissioner of Agriculture with the authority to establish and operate branch farmers markets as an auxiliary or adjunct to main farmers markets if the Commissioner, in the exercise of a sound discretion, should determine that such a branch market is for the best interest of the State. I can readily understand how a branch market could serve a very useful purpose in creating a market for farmers who, because of great distance, are unable to use the facilities of the main market. While Section 5-216 of the Amended Code authorizes the Commissioner to establish "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 law, not tc exceed eight in number," I am of thE: opinion that such a restriction does not apply to the operation of a branch market under the direct control and supervision of a main farmers market where it has been properly determined by the Commissioner of Agriculture that such branch market is for the best interest of the citizens of this State.

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AGRICULTURE-Farmers Markets The Commissioner of Agriculture may not establish and operate livestock markets.
November 26, 1945
Hon. Ellis Arnall Governor of Georgia
I am pleased to acknowledge your request for an opmwn on the question of whether livestock markets can be operated under the authority and powers vested in the Department of Agriculture.
Section 5-201 of the Code, in providing for the creation of the Bureau of Markets and stating the purposes of said ma1kets, provides:
"For the purpose of promoting proper, efficient and economical handling, packing, transporting, storage, distribution, inspection and sale of agricultural products of all kinds within this State, and for the further purpose of assisting producers and consumers thE>reof in selling and purchasing the same under fair conditions, and at fair and reasonable prices, there is hereby created within the DepartmE:nt of Agriculture a Bureau of Markets."
The question to be determined is whether or not livestock should be classified under the provisions of the above statute as agricultural products. In 3 C. J. S. 361, agricultural products are defined as follows:
"That which is the direct result of husbandry and the cultivation of the soil. The product "n its natural unmanufactured condition."
In Davis and Company v. Mayor and Council of Macon, 64 Ga. 128, our Supreme Court, in holding that the term "agricultural products," does not exempt beef and cattle from a municipal tax, stated:
"And when it is thought of closely, would it not be rather an unusual application of the phrase, 'agricultural products' to make it comprehend beE:f cattle? In ordinary usage, is not that phrase confined to the yield of the soil, as corn, wheat, rye, oats, hay, etc., in its primary form? When there has been conversion of the fruits of the soil into animal tissues, are we still to applythe phrase? And suppose we are to disregard the change in its first stage, and call a cow or a steer agricultural product, must we carry the name forward to the steak or roast which the butcher sells us from the slaughtered animal?"
From the above provision of law, I am of the opinion that the Commissioner of Agriculture is not authorized to operate livE:stock markets, since the term, "agricultural products" does not include "livestock."
AGRICULTURE-Farmers Markets The Commissioner of Agriculture may not lease a right of way through a farmers market to a railroad.
April 23, 1946 Han. Tom Linder Commissioner of Agriculture
I am pleased to acknowledge your recent l.otter, together with attached communications from Mr. Ellsworth Hall, Jr., in which you ask my opinion as to whether you are authorized to enter into a lease of a certain right of way to the Georgia, Southern and Florida Railway Company, the said proposed

12
right of way being over the State Fanners Market locatd at Valdosta, Georgia. I do not have a copy of the proposed contract, but I understand from
your letter that the railroad desires to lease the said right of way for a long term of years.
The Commissioner of Agriculture is given general authority over the operation and maintenance of State markets. Section 5-208 of the Amended Code provides:
"In addition to the powers and duties heretofore given to establish markets and prevent waste of farm products, it is further enacted that the Commissioner of Agriculture is authorized and directed to procure by purchase, lease, rent, gift, or otherwise, as in his discretion he may see fit, necessary market sites in this State on which to conduct farmers markets."
Section 5-209 of the Cone provides: "The Commissioner of Agriculture shall have authority, when a site has been acquired by purchase, lease, rent, gift, or otherwise, to establish thereon a fanners market, independent of and without the necessity of securing any pennit from any municipality in which a site or sites may be located." Section 5-219 of the Code provides: "The Commissioner of Agriculture is authorized and directed, when in his judgment it shall be advi~able and necessary, to provide suitable means of communication between the Bureau of Markets and the fanners market or markets established under thi~ law so as to facilitate the- sale and exchange of fann products of all kinds." It should be noted however, that no authority is contained in the above statutes authorizing the Commissioner of Agriculture to enter into long term leases or otherwise to dispose of State property. The power to purchase, lease, or rent is altogether different from the power to sell, lease or dispose of State property. Section 89-903 of the Code provides: "Powers of all public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred." In Town of Decatur v. DeKalb County, 130 Ga. 483, the Supreme Court of Georgia held that the Board of Commissioners of DeKalb County could not "lease county property in such manner as to put it out of the power of the county authorities, for 99 years ..." In 1935, many years subsequent to the decision in Town of Decatur v. DeKalb County, supra, the Legislature passed the following statute: (Ga. L. 1935, p. 110) "The ordinary or other authority shall have the control of all property belonging to the county, and may by order to be entered on his minutes direct the disposal of any real property which may lawfully be disposed of, and make and execute good and sufficient title thereof on behalf of the county."
The Supreme Court of Georgia in the case of Black v. County of Forsyth, et al., 193 Ga. 571, held that the Ordinary of Forsyth County "after passage of the Amending Act of 19:35 (Ga. L. 1935, p. 110) had power in 1936 to lease directly to an individual the realty in question, for use in operating a filling station.... And such a lease having been so executed by the Ordinary, was not void, as contended, on the ground that th~ lease was not authorized by law, or that the interest thereby created, extended beyond the term of the

13
Ordinary then in office, or that it amounted to a commercial transaction in which the county was not authorized by law to engage. This ruling is not contrary to the decision in Town of Decatur v. DeKalb County, 130 Ga. 483, de- cided before passage of the Act of 1935, supra, where it was held that the county did not have powE:r to lease a part of the courthouse square then in public service for a term of 99 years, to be devoted to a use by the lessee inconsistent with the use in which it was employed by the county."
We cite the above cases to again illustrate that powers of all public officers are defined by law, and that the court would not permit a long term lease to be engaged in until there was a statute authorizing the Ordinary or other county authority to enter upcn such a contract. While we understand that all public officials must necessarily have certain implied powers in order to carry out express powers prescribed by the Legislature, we are inclined to the view that a State official should h:we some direct legislative authority before E:htering upon a long term lease of State property. In your letter you do not set forth the terms of the lease or the period of time over which it would operate, but I assume from the general tenor of your letter that it would be for a long term of yE:ars.

AGRICULTURE-Feed An analysis tag and State inspection fee stamp is required on grains when cracked or ground and especially prepared for feeding purposes.

Hon. Tom Linder

February 8, 1946

Commissioner of Agriculture

I am pleased to acknowledge your letter of February 6th, in which you state the following:

"Will you please give me an opinion as to whether or not the Georgia Feed

Laws require an analysis tag and a State inspection fee stamp at the rate of

twenty cents per ton on ground and cracked grains such as corn, wheat, oats,

rye, barley, straws and hays, when ground and especially prepared for feeding purposes?"

Section 43-205 of the Code provides in part as follows:

"Each manufacturer, importer, jobber, agent, or sE:ller of any concentrated

commercial feeding stuffs shall pay to the Commissioner of Agriculture an

inspection tax of 20 cents per ton for each ton of such conceli.trated feeding

stuffs sold, or offered or exposed for sale, and shall affix to each car shipped

in bulk, and to each bag, barrel, or other package of such concentrated feeding

stuff, a stamp to be furnished by said Commissioner of Agriculture, indicating

that all chargE:s spP.cified in this section have been paid: Provided, that the

inspection tax oi 20 cents per ton shall not apply to cottonseed hulls, hays and

straws, whole seeds and grains and pure meals made from whole grains and

seE:ds, not mixed with other substances, but sold separately as distinct articles

of commerce. . . ."

The above statute clearlv requires an inspection tax of twenty cents per

ton to apply to all concentrated feeding stuffs unless such feeding stuff is

exempted under the terms of the proviso of the above statute.

14
Ground and cracked grains such as corn, wheat, oats, rye and barley, when ground and especially prepared for feeding purposes, clearly come within the purview of Section 42-205 and are required to bear the proper stamps showing that an inspection fee of twenty cents per ton has been paid thereon. If the seeds and grains are not mixed with other substances and not cracked or ground, they would be exempted from the inspection tax provided they were not mixed or adulterated with any substance. On the other hand, if the seeds or grains are ground or cracked and thereby especially prepared for feeding purpose:s, the above statute clearly requires the payment of an inspection fee.
Section 42-201 of the Code contains the following definition: "The term 'concentrated commercial feeding stuff,' as used herein, shall include cottonseed meal, linseed meal, corn and cob meal, cocoanut meal, gluten feeds, gluten me:al, germ feeds, corn feeds, starch feeds, sugar feeds, dry brewer's grains, malt sprouts, dried distiller's grains, dried beet refuse, hominy feed, cerealine feeds, rice meals, rice brans, rice polish, peanut meal, oat feeds, corn and oat feeds, corn bran, wheat bran, wheat middlings, wheat shorts, ground beef or fish scraps, mixe:d feeds, clover meal, alfalfa meal and feeds, peavine meal, cottonseed meal feeds, whole seeds, and grains and meals, mixed or unmixed, made from such seeds or grains, and all other materials of a similar nature." I am of the opinion that ground and cracked grains such as corn, wheat, oats, rye and barley, are classified under Section 42-201 as "concentrated commercial feeding stuff", and that when such seeds or grains are ground and cracked and thereby prepared for feeding purposes as set forth in your inquiry, that the same become subject to an inspection fee of twenty cents per ton, and must bear a stamp as required by the statute. Section 42-202 clearly requires "every lot or parcel of concentrated commercial feeding stuff and condiment feed used for feeding domestic animals or poultry, sold, or offered or exposed for sale, shall be registered annually with the Commissione:r of Agriculture, and shall have affixed thereto, or printed on the bag or other package, in a conspicuous place on the outside thereof, a legible and plainlv printed statement, clearly and truly certifying the number of net pounds of feeding stuff contained therein: ..."

15
AGRICULTURE-Food and Drugs (1) The Commissioner of Agriculture may prohibit the shipment of hatching eggs and poultry into the State unless accoropanied by a certificate of the proper official of the State of origin that the shipment has met the requireme:nts of the Georgia statute and regulations for the control of diseases of poultry. (2) Violation of the statute and regulations for the control of diseases of poultry is a misdemeanor. (3) Hatching eggs and poultry shipped into the State in violation of the statute and regulations for the control of diseases of poultry may be confiscated and destroyed.
February 28th, 1946
Hon. Tom Linder Commissioner of Agriculture
Your letter of Fe:bruary 25, in which you request my opinion as to whether the Commissioner of Agriculture has authority to prohibit the shipment of eggs, chicks, poults, poultry breeding stock, or birds of any species into Georgia where such shipper has not previously received the approval of the State Veterinarian or State Department of Agriculture, is acknowledged.
Your letter in effect brings up the question as to the scope of Section 5 of the recently enacte:d statute dealing with the eradication of pullorum disease and other contagious and infectious diseases of poultry. You also ask for a definition of your authority under Section 7 of the Act to institute criminal prosecution against those shippers violating the Act and also whether you have authority under the Act to confiscate, destroy or otherwise dispose of hatching eggs, chicks, poults, poultry breeding stock, or birds of any species that are produced in the State or entE:r the State not in compliance with this Act.
This question appears to me to be plainly one that comes within the police powers of the State to regulate. The unregulated and uncontrolled shipment of infected hatching eggs and chicks into Georgia will operate to a public disadvantage and will deny to Georgia citizens the beneficial use of their own property. Both the Stat:' and Federal constitution pre-suppose the existence of the right of the State to enforce adequate poultry measures to protect the social and economical conditions affecting the community at large. Surely, the legislative enactment in question is such a measure for it affects an industry that is tied closely to the economy of this State. After studying closely the provisions of this Act, I am of the opinion that its enforcement will operate on all persons alike and will not infringe upon any right guaranteed any p;rson under the constitution of Georgia or under the constitution of the United States.
To protect Georgia citizens who are engaged in poultry business from the economic ravages that will result from the purchase of fowls infected with contagious and infectious diseases is a duty owed by this Government to its citizens. The right of the State to enforce legislatiVE:' mandates such as the one here in question is founded upon the ancient legal maxim, Sic utere tuout alienum non laedas and to some extent on the other legal maxim, salus populi suprema lex.
A statute in almost the identical language has been before the Federal

16
courts. In the case of Musthatch Incubator Company v. Patterson, Governor of Oregon, 32 F. 2d 714, the Circuit Court of Appeals in a per curiam decision held the following:
"The State has power to pass quarantine and inspection laws and prescribe necessary regulations, as well as subjects to which they may be applied, which power cannot go beyond the necessity of the case and prohibit or burden interstate commerce.
"By regulations enacted pursuant to act of Oregon Legislature requiring that importation of hatching eggs and baby chicks and growing and breeding stock of poultry be accompanied by an official health certificate, held not unreasonable, as against claim that such regulations constituted an unlawful attempt to regulate interstate commerce, in violation of the United States Constitution, Article 1, Paragraph 8".
Some of the provisions of the Oregon statute which are far more drastic than any of the provisions contained in the Georgia Act were upheld as being properly within the police powers of the State. In this connection the Court went on to hold:
"There being no doubt of the authority of the State to exclude the importation of eggs and chicks which will bring disease to the poultry of Oregon, the only question in the case is whether or not it is shown by the evidence that the provisions of the Act are unreasonable."
See the case of Reid v. Colorado, 187 U. S. 137, in which it was held
"It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose t<;> effect that result is clearly manifested".
Even though Congress has exercised some measures of control over interstate commerce, the question in determining whether a State under its police powers has the right to guarantee and protect the public welfare of its citizens in the enjoyment of their property is one which the courts have repeatedly stated is peculiarly reserved to the States themselves.
Clearly the object sought to be accomplished under the Georgia Act is to prevent the introduction into this State of hatching eggs, chicks, or live stock infected with dangerous, contagious, infectious, or communicable diseases and it was held in the case of Musthat::h Incubator Company v. Hartley, Governor of Washington, 27 F. 2d 447,
"Subject to paramount authority of Congress, State, under police powers, may prevent introduction of diseased animals or plants, even though interstate or foreign commerce is involved".
In the case of Atlas Pipe Line v. S:erling, 4 F. Supp. 441, held "A State may subject interstate carrier to reasonable police regulations to enforce State's public policy in regard to shipments into or out of it". In the case of Mintz v. Baldwin, 2 F. Supp. 700, 289 U.S. 346, the Court held "State Agriculture Commissioner's order requiring official certificate that herds, from which cattle was imported into State of New York are free from Bang's disease is not invalid because it is an unreasonable and unnecessary burden on interstate commerce".

17

In the cases quoted, supra, it was held that Congress had not entE:red into

this field of control and has left it within the powers of the State.

It is very evident that the Legislature of Georgia had authority to pass

the statute in question and that it has properly delegated the authority for

enforcement of this statute .and making rules and regulations in pursuance

thereof to the Commissioner of Agriculture.

ThE: question is, are any of the terms of this Act arbitrary and do any of

its terms infringe upon rights secured to persons under the constitution of

Georgia or under the constitution of the United States?



The next question is, against whom do the provisions of this Act apply? The next question is, does the Commissioner of Agriculture or his properly delegated agents or the agencies named in this Act have authority to implement the statute in question with the proper rules and rE:gulations?
It is my opinion that all shippers of hatching eggs, chicks, . . ., poultry, poultry breeding stock, should be required by the State Veterinarian or the State Department of Agriculture, before they can ship into this State, to comply with the conditions contained in the statute. Thtir compliance with the conditions of this Act must be evidenced by an official health certificate signed by the Live Stock Sanitary official in the State of origin and this certificate should state upon its face that the fowls so shipped have met the requirements equivalent to Georgia regulations for control of pullorum disease and other contagious and infectious diseases of poultry. It is my further opinion that this Act is broad enough for the propE:r authorities of Georgia to adopt rules and regulations to protect Georgia poultry from communicable diseases and such rules would have to be complied with by any shipper shipping poultry into Georgia, or by any carrier receiving them for shipment.

It is my further opinion that under Section 5, paragraph 2 of the Act, it is the duty of the carrier to whom such shipments of poultry are consigned for delivery in Georgia to require a duplicate copy of the health certificatE: of the State of origin of such poultry and such duplicate certificate must be attached to the way bill on each shipment,. The Department of Agriculture. through its properly delegated agents, has authority to stop at the borders of Georgia any shipment seE:king to come into this State without such duplicate certificate.

It is my opinion that under Section 7 of the Act in question, any person, whether shipper, carrier, or whether a person within this State who has possession of such diseased poultry, who is found guilty of violating any of the provisions of this Act, shall be subject to misdemeanor punishment and the proper authority to instigate such criminal proceedings is the Commissioner of Agriculture of Georgia or one. of his duly authorizE:d agents. It follows that if the general purpose of this Act is to eradicate infectious and communicable poultry diseases, the Commissioner of Agriculture or his duly authorized agent has authority to destroy or otherwise dispose of all hatching eggs, chicks, poultry, poultry breeding stock or birds of any species that are produced in the State or that enter the State not in compliance with this Act. If this authority were not given, the other powE:rs granted under this enactment would be futile gestures.
It is my opinion that the Commissioner of Agriculture can give notice to

18
any carrier to whom consignments of eggs, chicks, or poultry are made for shipment into this State of the conditions under which Georgia will permit these shipments to be made and any carrier who accepts for shipment and ships into this State, hatching eggs, chicks, or poultry in violation of these rules or regulations would be guilty of a misdemeanor. Such hatching eggs, chicks, or poultry could be confiscated and destroyed under the terms of this Act in order to protect the Georgia poultry industry.
To me the terms of this measure are clear, they are not arbitrary, they are born out of necessity, and are exercised out of the sovereign right of any people to protect themselves in the enjoyment of their property and the Department of Agriculture of Georgia in the language of the statute itself is the proper department to have control in carrying out and effectuating State policies in this respect.
AGRICULTURE-Market Bulletin (Unofficial) (1) The Market Bulletin is financed from funds appropriated to the State Department of Agriculture. (2) The subject matter which may be included in the Market Bulletin is defined in Code Section 5-204.
April 30, 1946 Hon. Buford Boone, Editor The Macon Telegraph Macon, GE::orgia
I am pleased to acknowledge your letter of April 27th, in which you state the following:
"Will you be kind enough to provide information for me on the background of the Georgia Farmer's Market Bulletin?
"I would like to know how the bulletin is financed, how much it costs per issue, when it came into being, and for what stated purpose, and what limitations are placed upon it insofar as content is concerned.
"I realize that some of this information may not be available to your department and if so, please disregard that portion of my request."
The Market BullE::tin is published under the authority of Section 3 of the Act of 1917 (Ga. L. 1917, pp. 77-81) which is now codified as Section 5-204 of the Georgia Code of 1933. This Code Section provides in part as follows:
"The Director shall be the chief executive officer of the Bureau of Markets and it shall be his duty to organize said Bureau and in cooperation with the Commissioner of Agriculture to plan and formulate the work to be done and carry out the provisions of this Chapter; and he shall-
" (a) Investigate methods and practices in connection with the production, handling, standardizing, grading, classifying, sorting, weighing, packing, transportation, storage, inspection and sale of agricultural products of all kinds within this State and all matters relevant thereto.
"(b) Gather, formulate, and disseminate information in such form and at such time as he shall deell'. advisable relating to matters mentioned in subsection (a) hereof in all their phases, and by correspondence, publication, advice, experimentation or by any other practical means shall keep producers,

19

purchasers, and consumers informed of the supply and dE:mand of a~l. such products and of the markets t'_t which the same can be best and most effiCiently

and most economically sold or procured.

" (c) Publish periodical bulletins setting forth the current market prices

for all such products in the several places of principal market therefor within

the State and elsewhere, and so far as practicable data regarding the available

supplies thereof and the dem1md therefor in said placEs.

" (d) Ascertain sources of supply of all such products and prepare and

publish from time to time lists of the names and addresses of producers and

consignors thereof and furnish the same without charge to persons applying

therefor.

"(i) Take such other measurE:s as shall be proper for carrying out the

purposes of this Chapter: Provided, that in carryinP," out the provisions of

this Chapter there shall be no trespassing on the educational or instructional

works of the State Agricultural College or extension work as provided for

under the Federal Smith-Lever Act (U. S. C. A. Title 7, Sec. 341-348) ." (Ga.

L. 1917, pp. 78-80).

Any subject matter within the purview of the above provisions of law may

be properly included in the Market Bulletin. I do not find any subsequent statute now in effect which has in any way restricted, modified or enlarged

the material that may be published in the Market Bulletin. The Market Bul-

letin is financed from funds appropriated by the General Assembly from time

to time for the operation of the Department of Agriculture. In 1931 the General AssE:mbly made special mention of the Market Bulletin in the General

Appropriations Act of 1931-1933 (Ga. L. 1931, pp. 50-89). Section 2 of this

Act provided as follows:

"Provided, however, that no more than $25,000.00 be allocated to the

publication and distribution of the Market Bulletin; and provided, further that nothing except Market Bulletin quotations and bona fide listings of mar-

ket products offered for sale shall be published in the Market Bulletin. . . .

And provided further, that if at any time the Market BullE:tin is used for

printing and publishing any matter, whether editorially or otherwise, save

and except strictly advertisements for sale or exchange for the fa=ers of

the State of farm products, the Governor is hereby authorized and directed

to refuse to sign any warrant for the payment of the :publication or circulation

of said Market Bulletin, and same shall thereupon and thereafter cease to be

publishE:d or circulated."

-

The General Appropriations Act of 1931-1933 was of course limited to the years named therein, and was subsequently superseded by the General Appropriations Act of 1933 (Ga. L. 1933, p. 13) and this General Appropria-
tions Act and all subsequent Acts do not contain a provision similar to the
one quoted from the Appropriations Act of 1931. It seems definite that the
Appropriations Act of 1931 expired when the nE:w Appropriations Act was enacted, and therefore, is no longer valid. In this connection, see City of
v. Atlanta Goodman, 183 Ga. 834, and the cases cited therein, where it is held
a repeal by implication will result where a statute is manifestly intended to cover the subject matter of a former statute and to act as a substitute for it.

20
As a matter of information, I also rE:fer you to Section 5-112 of the Code of Georgia which provides as follows:
"The entire funds available for the support and maintenance of the Department of Agriculture shall be the amount set forth in the appropriation bill from time to time, and all funds of every nature collected by said Department or any subdivision thereof shall be paid into the Treasury of the State and disbursed by appropriations duly provided by thE: General Assembly and approved by the Governor."
The General Appropriations Act of 1943 which is now in force and effect, provides the following relative to the Department of Agriculture:
"Section 25. Agriculture, Department of-For the cost of operating all activities of the Department, Farmers' Markets, Bangs Disease indemnities and State Superintendent of Farms . . . $400,000.00."
You rE:quest information as to the cost per issue of the Market Bulletin. I do not have information as to the cost per issue of the Market Bulletin, but I believe that the Department of Agriculture or perhaps the Department of State Audits could supply these figures.
AGRICULTURE-Naval Stores (1) It is the duty of the Governor to appoint a State Supervising Inspector of Naval Stores. (2) The Commissioner of Revenue, with the approval of the Governor, may delegate to the State Supervising Inspector of Naval StorE:s the duty of collecting fees for inspection of naval stores actually made. (3) The State Supervising Inspector of Naval Stores is compensated by a salary instead of fees.
September 3, 1946 Hon. Ellis Arnall Governor of Georgia
I am pleased to acknowledge your letter of August 28, in which you ask several questions relating to the office of State Supervisor of Naval Stores. The first question you ask is as follows:
"1. Is it my duty to appoint a State Supervisor of Naval Stores?" Section 5-1611 of the Code of Georgia provides: "The Governor shall appoint a competent person, who shall be a citizen of the State, to be the supervising inspector of naval stores, and who shall be skilled in the inspection of and familiar with the grades of naval stores and competent to detect adulteration thereof. No person shall be appointed supervising inspector of naval storE:s who is a producer, factor, or buyer of or dealer in naval stores, or employed by or connected in business with any such producer, factor, buyer, or dealer in naval stores. He shall hold his office for four years from and after his appointment." The above provision of law, in my opinion, requires you to appoint a -competent person to be the supervising inspector of naval stores. The Legislature used the word "shall" rather than the permissive word "may", which indicates clE:arly the legislative intendment of having this office filled. It is therefore my opinion that in compliance with the above legislative enactment -~ou should appoint a State Supervisor of Naval Stores.

21

Your next two questions, which will be answered together, are as follows:

"2. Are all fees collected under the Revenu2 Department?"

"3. If so, will it be necessary for the Commissioner of Revenue to dele-

gate his duty to the Naval Stores Inspector insofar as the collection of fees is

concerned?"

.

Section 92-8412 of the amended Code reads, in part, as follows:

"To the extent license fees may be collected, in connection with regulatory

activities of some department of the State Government other than the Depart-

ment of Revenue, more economically than by the said Department, because the

fees are incidental to regulatory activities, the State Revenue Commissioner

is authorized, by executive order approved by the Governor, to commit the

administration of said license fees to the State official responsible for admin-

istering said regulatory activities: ..." The above provision of law requires the fees in question to be collected

by the Department of Revenue, unless it should be determined by the State

Revenue Commissioner that such fees could be collected more economically

by the Supervisor of Naval Stores. In such event the statute requires an

executive order to this effect by the Commissioner of Revenue, approved by

the Governor. Whether or not the fees in question are to be collected by the

Revenue Department or by the Supervisor of NavaL Stores is a question to

be determined by the Commicsioner of Revenue, with the subsequent approval

of the Governor, in the event that such fees are not collected by the Revenue

Department. Your last question is as follows:

"4. The office of Supervisor of Naval Stores has not been filled for the

past year or so, in the event I appoint a Supervisor, will the back fees be due?"

Section 5-1614 of the Code provides, in part, as follows:

"The supervising inspector of naval stores shall receive as compensation for his services :14 for each barrel of resin or spirits of turpentine which may

be inspected under the laws of this State; . . . Said fee shall be paid equally

by the buyer and seller of such naval stores. . . ."

Of course, the above section only contemplates the payment of a fee where

an inspection has been made in accordance with the statute. A public official

could not expect to be paid for services not performed. This is in keeping

with Section 80-702 of the Code, which provides as follows:

"Any public officer who shall charge or take fees not allowed by law, or

for a service not performed, ::;hall on conviction or proof thereof, be dismissed

from office." In the General Appropriation Act of 1943 (Ga. L. 1943, p. 92), the fol-
lowing provision is made in r~ference to this official: "Section 4~. Naval stores supervising inspector-for compensation, pro-

vided the fees shall be remitted to the State Treasury ... $3,600.00."

It is clear from the above provision of law that the fees in question are

to be paid into the State Treasury, in accordance with law; and the naval

stores supervising inspector h, to be paid a salary for services performed as

set forth in the appropriation section above. I am of the opinion, however,

that back fees cannot be collected from naval store8 operators and neither

can the Supervisor of Naval Stores receive his salary ur,til he actually performs the duties required under the Act.

22
AGRICULTURE-Weights and Measures The Commissioner of Agriculture may, by regulation, require scales to be adjustable by a separate tool or device.
October 23, 1946 Hon. W. P. Reed, Supervisor Weights and Measures Division
I am pleased to acknowledge your letter of October 14th, in which you state there has been a discussion between the manufacturers of household or kitchen scales in your office in reference to the 'approval of such scalE:s. The question arises by virtue of the fact that the scales may be adjusted by an outside screw or device, all of which is in apparent conflict with Section B-2d of the Rules and Regulations of the Department of Agriculture. You desire my opinion as to whether or not the above rule should apply to scales sold only for household uses.
Section 2 of the Acts of 1941, page 511, reads in part as follows: "The State Commissioner of Agriculture shall have and keep a general supervision of the weights and measures, and weighing devices offered for sale, sold, or in use in the State. He shall also have authority to promulgate rules and regulations for enforcement of this act; such rules and regulations may include specifications and tolerances for weighing and measuring devices and for package goods put up prior to time of sale. . . ." It seems clear that the above statute definitely authorizes the commissioner of Agriculture to keep a gE:neral supervision over weighing devices which may be sold or offered for sale in this State. Likewise, the law is clear in granting authority to the Commissioner to promulgate rules and regulations for the enforcement of this Act, and it is especially provided that such rules and regulations may include specifications and tolerances for weighing devices. In compliance with the above statutory authority granted by the Legislature to the Commissioner of Agriculture, the following rule and regulation was promulgated: "B-2d. Device for adjusting balance or level.-All mechanical devices for adjusting the balance condition or the level of person weighers and of smallcapacity scales except cream-test scales and prescription scales, shall be of such construction that they are operable or accessible only by the use of some tool or device which is outside of and entirely separate from the device in question, such as a screw driver, wrench, etc., but not an adjusting pin." I am of the opinion that thE: above quoted rule is in keeping with Section 2 of the Act above referred to, and that the Commissioner of Agriculture was authorized to provide such a general specification for adjusting weighing devices. Section 2 of the Ac. refers to all weighing devices sold or offered for sale in this State. The statute is broad enough to cover scales offered for sale only for home use. Section 3 of the Act does not in my opinion abrogate or alter the provisions containE:d in Section 2 hereof, which gives the Commissioner general supervision over weighing devices sold or offered for sale in this State.

23
BANKS AND BANKING-Branch Banks A bank located in one municipality may not after January 1, 1920, establish a branch bank in another municipality.*'
July 23, 1946 Hon. J. C. Beasley Superintendent of Banks
Mr. Peacock, Assistant Superintendent of Banks, handed me a letter from M:r:. H. Lamb, President, Bank of Union Point, which deals with the question of wheth~::r or not a bank located in one town or city can secure an office in another and employ a man to be in such office a part of each day of the week for the purpose of receiving deposits, cashing checks, and receiving applications for loans to be passed on by the Loan Committee of the bank.
Under Section 13-203 of the Code branch banks in existence when the Banking Act was passed in 1917 were permitted to continue op~::ration. This Section of the Code provides that no new or additional branch bank shall be established after January 1, 1920.
Section 13-901 of the Code which provides for the incorporation of banks provides that the application for incorporation shall name the particular city, town or village where the bank office is to be located. I am of the opinion that the banking law contemplates that the business of the bank shall be transacted at the office of the bank.
I do not think that it would be permissible or legal for a bank incorporated to do business in one city to secure an office in another city and employ a person to receive deposits, cash checks, and receive loan applications in the city where the office of the bank is not located.

BANKS AND BANKING-Branch Banks Branch banks may not be established under the Act of 1929, p. 214, applying to cities of from 80,000 to 125,000 population.

Hon. J. C. Beasley

March 12, 1947

Superintendent of Banks

You request that I advise whether or not a branch bank could be set up
and established by the Georgia Railroad Bank and Trust Company in the City of Augusta.

The last sentence in Section 32-203 of the Code of 1933 relating to branch banks provides as follows:

"After January 1, 1920, no new or additional branch banks shall be established."

This Section of the Code just referred to authorizes the operation of branch banks that had already been established prior to the Banking Act of 1919.

On July 20, 1929, an Act of the General Assembly was approved which provided as follows:
"Section 1. Be it enacted by the General Ass,~mbly of the State of Georgia,

*For exceptions, see the Act of 1929, p. 214, applying to municipalities of not less than 200,000 population.

24
and it is herE:by enacted by authority of the same, that banks chartered under the laws of this State, and having their principal office in a city now or hereafter having a population of not less than eighty thousand or more than one hundred and twenty-five thousand, may establish branch banks in city in which its principal office is located." See Georgia Laws 1929, p. 214.
The City of Augusta wuuld, according to information given me, come within the population described in the above quoted portion of th: Act ap proved July 20, 1929.
On August 17, 1929, an Act of the General Assembly was approved which provided as follows:
"Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the sam~, that banks chartered under the laws of this State, and hwing thtir principal office in a municipality now or hereafter having a popul:-tion of not less than 200,000 according to the last census of the United States or any future census of the United States, may establish branch banks m the municipality in which its principal office is located." Georgia Laws 1929, pp. 214-215.
This Act last mentioned provides for the establishment of branch banks in municipalities having a population of not less than 200,000 according to the last or any future census of the Vnited States.
It will be noted that both acts deal with the 5ame subject matter of establishing branch banks. One Act permits the establishment of branch banks in cities having a population of not less than 80,000 nor more than 125,000. The other Act permits the establishment of branch banks in municipalities having a population of not less than 200,000. If both Acts are to be construed as being general acts, and as :>.mending the ge:neral banking act which provides that after January 1, 1920, no branch bank shaH be established, then the Act approved August 17, 1929 would be the last legislative enactment on the subject matter, and would take precedence over the Act approved July 20, 1929. If on the other hand they should be construed to be ~;pecial acts dtaling with special localities, they would be in direct conflict with the general law which provides that after January 1, 1920, no branch bank shaH be established, and if they are special acts then both acts would be unconstitutional. They would violate the provision of the Constitution which provides that laws of a general nature shall have uniform operation throughout the State and no special law shall be enacte:d in any case for which provision has been made by an existing general law. See Paragraph 1, Section 4, Article 1 of the Constitution of 1945.
The General Assembly in 1911 passed an Act which provided that the county line between two contiguous counties having populations of not less than 16,422 nor more than 16,424 and of not less than 19,146 nor more than 19,148, could change the county line as pointed out by the act and in a different manner from the general law which provided for the change of boundary lines or dividing lines bttween counties. The Supreme Court in the case of Worth County v. Cri&p County, 139 Ga. 117, held that the 1911 Act was a special enactment and violated the provision of th~ Constitution to which I have just above referred.
In 1923 the General Assembly passed an Act providing that in counties having a population of not more than 4,350 and not less than 4,340, the county

25
board of education should be appointed by the Superior Court Judge, which was in conflict with the general law which provided that the board of education should be elected by the Grand Jury. The Supreme Court in Gibson v. Hood, 185 Ga. 426, held that th: act was a special act and violated the constitutional provision to which I have called your attention.
In the case of City of Atlanta v. Hudgins, 193 Ga. 618, the Supreme Court ruled that the purpose of the Constitution is to insure uniform operation of general laws throughout the State, and as a means to. that end prohibits enactment of a special law relating to a subject dealt with by the general law. The law there dealt with was a special act which sought to regulate the filing of suits for damages against the city. There was a general law on the subj:ct matter which was in conflict with the special law. The special law was held to be repugnant to the Constitution and void.
The general law of the State, known as the Ellis Health Law, regulated county boards of health and hospitals. The General A~sembly passed a special act entitled an act to establish a hospital and health board for Carroll County which was in conflict with the Ellis Health Law. The Supreme Court in the case of Hood v. Burson, 194 Ga. 130, ruled that the >'pecial act was unconstitutional and invalid because it violated the provision of the Constitution to which I have called your attention.
In the case of S~ewart v. Anderson, 140 Ga. 31, the Supreme Court in an opinion by Justic: Atkinson stated:
"A general law may be repealed or modified by another general law, but it can not be repealed or modified by a special or local law. If the act under consideration is a general law, it is valid as against the contention that it violates the Section of the Constitution above quoted. If it is a special or local law dealing with a subject as to which provision has already been mad: by an existing general law, then it is in conflict with that act and invalid."
So, as above stated, the two Acts of 1929 must either be construed to be general or special acts. If they are condrued to be general acts amending the 1919 Banking Act the Act ls.st approved which provides that branch banks may be established in municipalities having a population of not less than 200,000 would apply, and in my opinion the Act approved July 20, 1929, was thereby repealed. Even though they should be construed to be special acts, each se:king to amend the general law, by a special act then both would be unconstitutional and no branch bank could be established anywhere within the bounds of the State under the 1919 Banking Act.

BANKS AND BANKING-Capital
A bank may not, by charter amendment, increase its capital where the increase is to be made from future surplus and undivided profits as they accumulate.

Ron. J. C. Beasley Superintend:nt of Banks

June 19, 1946

You requested me to advise you whether or not you should give approval to an application to amend a bank charter by increasing the capital from

upr;u..;::;IJ rut- LJt.LJ~t:ilf

26

AT HEN S, GED RGIj,

$100,000 to $500,000, the incr~ase to be made from time to time and from surplus and undivided profits as they accumulate.
The General Corporation Act of 1938 provides that general corporations may increase their capital stock, without charter amendment by a two-thirds majority vote of stockholders where the original charter so authorized. See Section 22-1814, 1945 Cumulative Pocket Part Annotated Code.
There is a difference between general corporations and banking corporation~. Banks are granted charters, and their charters may be amended under the Banking Act. In 3 Zollman on Banks and Banking, Sec. 1371, p. 42, it is stated: "Where the capital stock of a bank is limited by the act of incorporation, it can not be increased without an enabling act. . . . Since banks are creatures of statute, the provisions of the statutes applicable to the increase of capital stock must be followed."
The provisions of the Banking Act setting out the proc~dure for amending bank charters is set forth in Chapter 13-10 of the Code of 1933 and these provisions shall be followed when a bank seeks to amend its charter by increasing its capital stock. Banks desiring to amend their charter by increasing its capital stock are required to file application with the Secretary of State, and the application shall state the amendments or particular amendment desired. The application is filed in triplicate and the Secretary of State is required to certify one of the copies for publication and to furnish the Superintendent of Banks with a copy. The Superintendent of Banks is required to make an investigation, and shall satisfy himself that the amendment is proper, and in case the application is for increase in capital stock, that the amount of such additional capital has been paid in, in cash, except where surplus is capitalized. If so satisfied the Superintendent shall within 30 days give a certificate of approval of the amendment of the charter of the bank. If the Superintendent is not satisfied that the amendment as pr;Jposed is expedient and desirable, or that the law has been complied with, or if the amendment is for the increase of capital stock, that the incr~ase has not* been paid in, he shall within 30 days give a certificate of disapproval.
Section 13-1008 of the Code of 1933 provides that any bank may increase its capital stock from its surplus and undivided profits where its charter has been amended authorizing the increase and the approval of the Superintendent of Banks to such increase from the surplus and profits has been obtained, provided the increase will not reduce the unimpaired surplus to an amount less than 20 per cent of the capital stock.
I am of the opinion that this Section of the Code should be construed together with s~ctions 13-1002 and 13-1005, and that when so construed the amendment seeking to increase the capital from the surplus must allege and show a definite and positive capital, and must show that the surplus has not been reduced to an amount less than 20 per cent of the capital stock.
To construe the same in any other light would, to my mind, permit banks in the State to have a capital stock changeable at the consent and will of the stockholders without complying with the law regulating amendment to charters of banks. Should the Superintendent approve the proposed amendment allow-
*See Code Sec. 13-1005 using double negative.

27
ing banks to increase capital to $500,000, the capital to be supplied from time to time as the surplus accumulated, it would violate the principle that the increased capital must be paid in. I think the words "except where expense is capitalized" as used in Section 13-1005 must be construed to mean that the amount of additional capital added by an amendment to the charter must be paid in cash or else there must be on hand an undivided surplus sufficient to pay the: increase in cash and to leave an unimpaired surplus of 20 per cent.
BANKS AND BANKING-Charters Bank charters are renewed under the provisions of Code Sections 13-1101 through 13-1106 instead of under the Act of 1939, p. 250.
November 28, 1945 Hon. J. C. Beasley Superintendent of Banks
Your letter of November 15th received. You refer to Sections 13-1101 and 13-1106 of the Code of 1933 and to Acts 1939, p. 250 and request that I advise whether or not banks may renew their charter under the 1939 Act, or whether or not they must comply with the provisions of the Code Sections named.
Section 13-1101 through 13-1106 of the Code of 1933 provides the specifi:: way by which a charter for an incorporated bank may be renewed. These provisions of the Code were enacted into law by the General Assembly in 1919, (Ga. L. 1919, pp.. 172-174). Bank charters are granted by the Secretary of the State under certain specific regulations as pointed out by the Code. See Chapter 13-9. When the application for a charter is filed with the Secretary of the State, the Secretary of the State is required to transmit a copy to the Superintendent of Banks for investigation and approval. The SupE:rintendent after making the investigation required by the Code either approves or disapproves of the application, and where approval is given the Secretary of the State is authorized to grant the charter. A similar procedure is required where an application is filed asking for a renewal of an expired charter.
The Act of 1939 deals with the renewal of charters granted by the General Assembly of the State or by the Secretary of the State where such corporation has been continuously engaged in business under the charter and does not contain the requirements specifically set forth for the renewal of a bank charter.
So far as I have Leen able to determine the question of the right of a bank to renew its charter under tbe Act of 1939 has never been raised or passed upon by the courts of the State. I am of the opinion that the Gene:ral Assembly was dealing with such co1porations as are named in Section 22-501 of the Code and did not intend to deal with the renewal of a charter by a banking corporation in its Act of 1939. However, attention is called to the fact that the Supreme Court of the State in Garriso;,, et al. v. Marietta Trust and Banking Company, et al., 155 Ga. 562, ruled that a charter of a bank could be revived under the provisions of Section 22-601 of the Code of 1933.
While the question is not wholly free from doubt I am of the opinion that banks who seek to renew their charter should comply with the provisions of

28
Chapter 13-11 which deals specifically with the manner and method of renewing a bank charter. I am of the further opinion that the Superintendent of Banks, in the performance of his duties, should insist upon the compliance with the provisions of the banking laws for the renewal of charters for banks. Unless a bank holds a charter received or renewed in the manner pointed out by the Banking Acts, such a bank, in my opinion would not be entitled to hold itself out as an incorporated bank, but should it do banking business it should comply with the provisions of Section 13-204 of the Code of 1933.
I would suggest, however, that the Act of 1939 be amended so as to provide that it shall not apply to the renewal of charters of banks.
BANKS AND BANKING-Charters (1) The renewal of a b:!nk charter extends its corporate existence for a period of thirty years from the date of the expiration of the original charter. (2) The revival of a bank charter continues its corporate existence for a period of thirty years from the date of the rertificate of revival.
January 2, 1947 Hon. J. C. Beasley Superintendent of Banks
Your letter of Decembe1 30, 1946, received. You request my official opinion on the interpretation of Section 22-602, Code of 1933, relating to th: revival of bank charters. The Epecific question relates to the date of the revival of the charter, whether or not it begins on the date of the expiration of the original charter or on the datE' of the certificate by the Secretary of the State granting the revival of the charter.
Under Chapter 13-11 of the Code any incorporated bank may renew its chartH and have its corporate existence extended for a period of thirty years by filing with the Secretary of State, at any time within six months prior to the expiration of the charter. an application for renewal. Under such circumstances the charter would be renewed or extenden for a period of thirty years from the date of the expiration of the original charter.
The Corporation Act of 1938 provides in Section 22-1827, 1945 Cumulative Pocket Part of the Code in subparagraph (i) that a corporation may revive its charter, effective from the date of the expiration of its previous charter, by complying with the terms of the 1938 Corporation Act. However, the 1938 Act does not apply to banking, insurance, railroads and other corporations. See Section 22-1801, 1945 Cumulative Pocket Part of the Code.
Section 22-601 of the Code provides that where a charter of a corporation incorporated by the General Assembly, or by a certificate of the Secretary of State, or by any Superior Court, has expired and such corporation has continued in business in ignorance of such .::xpiration, the charter may be revived by an act of the General Assembly or by a certificate from the Secretary of State, or by judgment of the Superior Court, at any time within ten years from the date of such expiration. Section 22-602 of the Code, the Section that you requested that I constru, provides that when a certificate of revival of a charter is issued by the Secretary of State, or the Superior Court, such

29
corporation shall continue together with all of the property and other rights, and that the acts and doings of such corporation, in the period between the date of expiration and date of revivor' shall be confirmed and held as the acts and doings of the original corporation so revived, and such corporation shall continue from the date of such certificate by the Secretary of State, or the date of such order by the Superior Court for the full period allowed by law for such corporations.
Clearly under the language of this Section the corporation where revivEd under Section 22-601 of the Code would run from the date of the certificate by the Secretary of State, or the date of such order by the Superior Court, for the full period allowed by law, to-wit for thirty (30) years.
I am of the opinion, howevEr, that in the case of private corporations incorporated by an order of the Superior Court which come under the 1938 Corporation Act, the revival would date from the date of the expiration of its previous charter. However, I do not think that charters granted by the Secretary of State would date from the date of expiration of the original charter because such corporations are excluded from the Corporation Act of 1938 by the terms of Section 22-1801 of the Cumulative Pocket Part of the Code.
Attention is called to the Act of 1939, (Ga. L. 1939, pp. 250-251), as codified in Sections 22-516, 22-517 and 22-518 of the Cumulative Pocket Part of the Code. The Act of 1939 deals with corporations organized under charters granted by the General Assembly or the Secretary of State, and under this Act any organization which has continuously engaged in business under its charter may at any timE renew, extend or revive its charter for an additional period of thirty (30) years by complying with the Act. The Act provides that where any corporation has its charter renewed, extended or revived under the Act, same becomes subject to all laws of this State of force at the time of such renewal, extension or revivor. The Act doEs not state the time or date when a certificate or revivor shall become effective. It does not, therefore, conflict with the previous act as codified in Section 22-602 of the Code. The Supreme Court of the State in Huey, et al. v. National Bank of Fitzgerald, 177 Ga. 64 (3) and the Com: of Appeals in the case of West v. Flynn Realty Company, 53 Ga. App. 594 (1) held that where a corporation continues to do business aftEr the expiration of its charter during the period allowed for revival, the corporation is to he treated as a de facto corporation. It would remain such a corporation during the period which the corporation is allowed to revive its charter. Therefore, in my opinion, the revived charter for a banking corporation should date from the date of the certificate issued by the Secretary of the State.

30
BANKS AND BANKING-Cbarters A mandamus directing the State Superintendent of Banks to issue a certificate approving the grant of a charter does not control his discretion as to the issuance of a permit to begin business.
November 26, 1947. Hon. 0. G. Jackson Superintendent of Banks
I have your letter of November 19th, in which you request my opinion on the following question:
Could the Superintendent of Banks be held in contempt for refusal to issue to a bank a permit to begin business under Code Section 13-909, where a mandamus had previously been issued ordering the Superintendent to issue a certificate approving the grant of a charter to the Bank.
In my opinion, mandamus issued directing you to issue the charter under Sec. 13-905 does not in any way affect your acts or your discretionary powers under the authority of Code Section 13-909. Therefore, it is my opinion that you will not be in contempt of such an order in the event you refuse to issue permit to begin business.
BANKS AND BANKING-Deposits A bank may not levy a service or maintenance charge on an inactive account without the consent of the depositor.
October 16, 1947. Hon. 0. G. Jackson Superintendent of Banks
You have requested my opinion on the following question: May a bank levy and collect service or maintenance charges on inactive accounts, thereby eventually extinguishing them? In our discussion of this problem, you stated that as a general rule banks do not reserve the right to make such charges on inactive accounts when an account is open. Therefore, the following opinion postulates that no such agreement has been made. The relationship of bank and depositor is a contractual one. It is a well settled and fundamental rule of contract law that neither party to a contract may modify or change the terms of the contract unless there is mutual assent of both parties to such change See, Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695. The levying of a service charge on an inactive account without the consent of the depositor would be a modification of the contract and therefore is not permissible. In Paton's Digest of Legal Opinions, which is a text prepared by the General Counsel of the American Bankers' Association, the following statement is made: "Service or maintenance charges will be legal with respect to those depositors who can be given actual notice thereof, but, aside from statute, will not be legal as to others . . . charges imposer! by reason of the inactivity

31
of an account are more accurately designated 'maintenance' than 'service' rharges. With respect to some accounts, although inactive, the bank may be able to give actual notice of the imposition of the charges. Such a notice, after a reasonable time will be effective. With respect to those; accounts, the owners of which cannot be located by mail or otherwise, charges cannot legally be imposed ... because the depositor's consent would not be obtainable. Notice mailed to a depositor's last known address would not be effective when it did not result in giving actual notice;." In Lawrence National Bank v. Rice, 83 F. 2d 642 at 646, the Court said in commenting on such charges, by way of dicta, ". . . sufficient now to say that the mere entry of such charges on the books does not bind a depositor".
As pointed out above, if a bank gets the consent of the depositor, the charges can be made; also, if the bank gives actual notice to a depositor and then makes a charge and the depositor makes no objection and does not remove his deposit, his assent to the charge may be implied. However, it is unlikely that this will happen because of the very nature of inactive accounts.
It is, thtrefore, my opinion based upon the above authorities that a bank may not levy maintenance or service charges on inactive accounts without the consent of the depositor.
BANKS AND BANKING-Examiners State bank examiners may receive mileage and subsistence while examining banks in the cities or counties of the:ir residence.
November 7, 1945 Hon. J. C. Beasley Superintendent of Banks
Your letter of October 30th received. You request my official opm10n on the question: Can a Bank Examiner legally charge subsistence while on duty in the town in which he resides? You state that the specific question involved is, would an examiner residing in Atlanta or Decatur be permitted to charge his transportation to and from his work in Atlanta, and would he be permitted to charge in his expense account his meals while on duty in the city?
Section 13-314 of the Code of 1933 provides that the expenses incurred in and about the conduct of the business of the Banking Department including the salarie:s of the Superintendent, the assistant superintendent, the examiners, and office assistants, and the traveling expense incurred in examining banks shall be collected from the banks as provided for in Chapter 13-4 of the Code as amended. Section 13-313 of the Code provides that the expenses of examiners, actually paid in the discharge of their duties, shall be audited and approved by the Superintendent of Banks, and paid monthly as other expenses of the Banking Department are paid, This section re:quires that itemized statements shall be kept by the Superintendent and examiners, and that the statements shall show in detail their expenses and each and every item thereof, and that the expenses shall be accompanied by such vouchers as the Superintendent of Banks shall prE:scribe.
The provisions of the Banking Act to which I have referred were enacted

32
into law in 1919. The General Assembly in 1933 dealt at length with traveling expenses of the officers, officials and employees of the various departments of the State. The Act of 1933 is codified as Chapter 40-20 of the Code of 1933. It deals principally with traveling expenses for the upkeep of an automobile used by an employee for the carrying on of the State business, and it also provided that a uniform rate per mile should be inaugurated. Section 40-2003 provides in substance that officers and employees of the State required to travel by automobile in the performance of their duties shall furnish the automobile out of their own personal funds and shall receive for thE: use of such automobile and as expense of operating same, mileage allowance as fixed by the State Supervisor of Purchases in conjunction with the various department heads. Neither of the sections specifically prohibit the collection of expenses for a car used in one's town or county for carrying on State business.
Section 13-408 of the Code provides that no bank shall be visited by an examiner for the purpose of examining at a stated time or at regular dates, and that the Superintendent or examiner shall not permit anyone to know when or at what time he expects to visit the bank or cause same to be visited for examination.
I think that judicial cognizance should be taken of the fact that if a person resided in Decatur and expected to examine banks in the City of Atlanta that it would call for the travel from his home to a place where his work was to be done. Even a person residing in the City of Atlanta would be required to travel some distance from his home to the place where he expected to perform the servicts for the State. I think that consideration should be taken of the well-known fact that it is necessary to examine books during the banking hours and that the examiner is expected to examine them without any prearranged date for such work. The examiner does not have any fixed definite place for the performance of his duties, but is rE:quired to go from bank to bank.
I am, therefore, of the opinion that it is legitimate for a bank examiner to include in his expense account the actual mileage traveled in going from his home to the bank or banks examined, and for his return to his home, even though both be in the same city or county. Taking into consideration the, banking hours when the work must be performed and other circumstances, I am of the opinion that the examiner would not be required to travel from any bank that he is ('xamining to his home in order to secure his meals, and therefore, while on duty even though in the town or the county of his residence, he would have the legal right to include in his expense account the expense of meals while out on duty. I do not think that the examiner should include in his expense account any hotel bill unless he is at a place where he is required to be absent from his homE: in the performance of his duties. I call your attention to Section 13-9905 which provides a penalty against any examiner who may render a false expense account.

33
BANKS AND BANKING-Loans The statutory loan limitation on banks of 20 o/o of its capital and unimpaired surplus to any one person is not applicable to loans secured by agricultural products..
March 14, 1946
Hon. J. C. Beasley Superintendent of Banks
Your letter of February 7, in which you request an official opinion a a to a proper construction to be given Section 13-2013, Cumulative Pocket Part of Annotated Code, received.
The specific question for consideration is: Would a bank be entitled to make a loan to a party within 20 o/o limit where secured by good collateral and then subsequently make an additional loan on agricultural products, where the loan on the agricultural rroducts do not have the 20 o/o margin required without the two loans being considertd excessive under the statute.
The material portions of Section 13-2013 of the Code of 1933 as amended may be stated as follows:
"No bank shall be allowed to lend to any one person, firm, or corporation more than 20 per cent of its capital and unimpaired surplus; and no loan shall be made in excess of 10 per cent of the capital and surplus, except upon good collateral or other ample security and with the approval of a majority of the directors, or a committee of the board of directors authorized to act, which approval shall be evidenced by the written signature of said directors or the members of said committee. . . . Provided, that the limit of loans herein fixed shall not apply to bona fide loans made upon the security of agricultural, manufactured, or industrial products or live stock having a market value and for which there is ready sale in the open market, title to which by appropriate transfer shall be taken in the name of the bank, and which shall be stcured by insurance against loss by fire, with policies made payable to the bank, where no more than 80 per cent. of the market value of such products shall be loaned or advanced thereon. In all such cases a margin of 20 per cent. between the amount of the loan and the market value of the products shall at all times be maintained . . . ; and the bank shall have the right to call for additional collateral when the difference between the market value and the amount loaned shall be less than 20 per cent., and in the event of the failure to comply with such demand, to immediately sell all or any part of such products in the open market and pay the amount of the loan and the expenses of sale, and the balance to the borrower; . . ."
So far as I have been able to find the Courts of our State have not be&n called upon to construe this Section of the Code. I have not been able to find any decision of any court dealing with any similar provision of law. It is, therefore, necessary to give the Code Section a construction without the aid of any court authority.
In construing statutes the whole should be considered in arriving at the legislative'intent. See City of Macon v. Georgia Power Company, 171 Ga. 40.
The cardinal rule in the ('onstruction of ltgislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. See

34
Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656. Section 102-102, Paragraph 9, Code of 1933.
Originally under the old law there was no limitation on the amount of loans to be made by a bank tCI any one person. The Act of 1919 (Ga. L. 1919, p. 196) limited the amount to 30 per cent of the capital and unimpaired surplus. The Act of 1922 (Ga. L. 1922, p. 68) amended the 1919 Act and placed the limit of a loan to any one person at 20 per cent of the capital and unimpaired surplus and provided that no loan should be made in excess of 10 per cent of the capital and surplus, except upon good collateral or other ample security, such loans to be approved by a majority of the Directors, or a committee of the Board of Directors authorized to Act.
In the passage of the Act which contained Section 13-2013 of the Code the General Assembly added a proviso excepting from the limits of the loans bona fide loans made upon the security of agricultural products, and others. The general purpose of a proviso is to except the clause covered by it from provisions of a statute, or to qualify the operation of a statute. See Georgia Railroad and Banking Company v. James M. Smith, et al., 32 L. Ed. 377, 128
u. s. 174.
Loans made by a bank on agricultural products where no more than 80 per cent of the market value of such products are loaned do not count in considering the loan under the limit of 20 per cent of the capital and unimpaired surplus of the bank as provided in the main portion of Section 13-2013 of the Code. In your hypothetical question you stated that the loan on agricultural products exce:eded the 80 per cent of the market value of the products and wanted to know whether or not such a loan should be considered as being a part of the loan coming under the 20 per cent limit.
Considering this Section as a whole, trying to give effect to each provision, it is my opinion that the two loans are separate and that even though the loan on the agricultural products may exceed 80 per cent of their value, such a loan should not be added to other secured loans for the purpose of determining whether excessive loans had been made. Agricultural loans are, by the: proviso, excepted from the limits imposed by the main part of the Section. I do not think that the language: "where no more than 80 per cent of the market value of such products shall be loaned or advanced thereon.", makes agricultural loans of the same class as loans under the 20 per cent limit.
I am of the opinion that it was the intention of the General Assembly that such loans should be restricted to 80 per cent or less of the value of the agricultural products and that if the margin of 20 per cent betwee:n the amount of the loan and the market value does not exist, that it would be the duty of the bank, or its officers, to immediately call for additional collateral and if such additional collateml was not forth coming to protect the bank and its stockholders by making a sale of the commodities as prescribed by the statute. The right to call for additional collateral and to sell the agricultural products, gives the bank a reme:dy for its protection.

35
BANKS AND BANKING-Loans The statutory limitation upon bank loans fecured by manufactured or industrial products to 80 o/o of the market value of such products refers to the retail selling price and not to the manufacturer's cost.
May 13, 1946
Hon. J. C. Beasley Superintendent of Banks
Mr. Peacock, Assistant Superintendent of Banks, requested an opmron regarding the construction to be placed on Section 13-2013 of the Code of 1933. The question that he desired answered is as follows:
"Does the 80 o/o limit on loans made upon the security of manufactured or industrial products relate to the manufacturer's cost or to the retail selling price?"
The text of the Code Section seems to clearly indicate the Legislature's intention to permit loans up to 80 o/o of the retail price of industrial and manufactured products. The General Assembly specified that such loans might be made on manufactured products "having a market value and for which there is a ready sale on the open market". Under this Section if the security comes below the 80 o/o "of the market value of such product" the bank would have the right to sell the products in the "open market". In the light of the tE:xt the words "market value" likewise would seem to refer to "retail value".
In the case of Harvey v. City and County of Denver, 18 Pac. 2d. 321, 322; 92 Colo. 114, the Court states:
"Term open market conveys the idea of buying at the dealer's price, what he offers, as distinguished from the idea of presenting to him schedule of what one desires, in which he may or may not deal and which he may be obligated to import or manufacture to special design."
The Court of Appeals of Georgia in Peninsular Naval Stores Company v. The State, 20 Ga. App. 501 (3) ruled as follows:
"The market price of a commodity is the actual price at which it is commonly sold."
I am of the opinion that the 80 o/o limit on loans made upon security of manufactured or industrial products relates to retail selling price as sold by dealers in the open market.

BANKS AND BANKING-Loans A secured deposit by one bank with another has the nature of a loan.

Hon. John C. Beasley

August 19, 1946

State SuperintendE:nt of Banks

This will acknowledge your letter of recent date from the Bank of

Worth County, which was forwarded by your office for an opinion on the following question:

"Is there anything in State Banking regulations prohibiting one bank

from securing a deposit made with them by another bank in the same way that public funds are customarily secured?"

36
At the first blush, the answer to the above question would be NO since we cannot find anything in the banking laws that prohibits a bank from securing a deposit. However, on the other hand, there is nothing specifically allowing a bank to secure a deposit.
In securing a deposit of public funds, the public has, by law, a lien superior to all othE:rs. This is set forth in Code Section 89-813, as follows:
"Deposit of public funds creates superior lien against bank's assets. Deposit constitutes trust fund.-Upon any deposit of public funds being made in any bank, whether designated as a depository or not, there shall arise in favor of the public body to which such fund belongs a lien on all the assets of said bank, superior to all other liens, for the amount of such funds. All funds of any public body upon being deposited in any bank shall be deemed to be held as a trust fund."
In Code Section 13-801 (7) we find thE: power of the banks to "discount bills, notE:s or other evidences of debt; to receive and pay out deposits, with or without interest; to receive on special deposit, money, bullion, foreign coin, stocks, bonds, or other securities, or other property; to buy and sell foreign or domestic exchange or other negotiable paper; to issue and sE:ll acceptances; to lend money upon personal security, or upon pledges of bonds, stocks, or securities; to take and receive security by mortgage or otherwise, on property real or persona~."
From the above it is noted that a bank may "lend money upon personal security, or upon pledges of bonds, stocks, or securities." However, this Section does not authorize a bank to Eecure, by bond or deposit of securities as in the case of public funds, (Code Section 89-812) any deposits, but does authorize the securing of a loan.
It would be a question for the judiciary to determine whether a deposit, secured by a bank, is in fact a deposit or a loan where such deposit is not specifically a "special deposit." In the case of Citizens Bank of Waynesb,oro v. Mobley, 166 Ga. 543, it is said:
"The term 'depositor,' as used in this article, means any person who sha!I deposit money or commercial paper in any bank, either on open account, subject to check, or to be withdrawn otherwise than by check, whether intE:rest is allowed thereon or not, and shall include holders of demand and time certificates of deposit lawfully issued. A 'loan of money' is defined in 38 C. J. 126, as 'A contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows; the delivery by one party and receipt by the other party of a given sum of money, upon an agreement, express or implied, to repay the sum loaned, with or without interest. If such is the intent of the parties, the transaction will be considered a loan without .regard to its form.' It is useless to endeavor to frame a rule by which a 'deposit' may be differentiated in every case from a mere 'loan' as applied to banking transactions. All deposits are loans. 'It is unquestionably true that under the authorities a deposit of money on general deposit in a bank is a loan to the bank by the depositor, and is not distinguishable by any clear mark from an ordinary loan of money by one man to another.' "
In the case of Federal Deposit Insurance Corpora,tion v. Ret:ords, 34 F.

37
Supp. 600, it is found that "an allegtd loan to a bank, the deposits in which were insured by Federal Deposit Insurance Corporation, was not a 'deposit' so as to be covered by insurance."
In the case of O'Connor v. Bankers Trust Company, 289 N. Y. S. 252, it is found that "banks have no general power to guarantee each other's deposits directly or through an organization, with or without limitations, since such a power is matter of legislative, not banking policy."
In view of the above, I am doubtful that a transaction as proposed would be considered a "deposit" by the judiciary or the Federal Deposit Insurance Corporation in the event of a bank failure and such depositor claimed priority in the order of paying debts. It is my opinion that the transaction would be construed as a contractual obligation in the nature of a loan and not a deposit.

BANKS AND BANKING-Loans The statutory loan limitation on banks does not apply to loans secured by a guaranty of the Veterans Administration.

Hon. 0. G. Jackson

May 23, 1947

Superintendent of Banks

In your letter of May 22, you tnclose a letter from the Reconstruction

Finance Corporation, and request my opinion whether the legal limit on bank

loans would apply to a loan made by a State Bank and secured by a Guaranty

of the Veterans' Administration.

In reply to the inquiry presented, I call your attention to Code Section

13-2013 which provides as follows:

"No bank shall be allowed to lend to any person, firm or corporation

more than twenty per cent (20 o/o) of its capital, and unimpaired surplus. And

no loan shall be made in excess of ten per cent ( 10 '7o) of, the capital and

surplus except upon good collateral or other ample security and with the ap-

proval of a majority of the directors ... provided that the limit herein fixed

shall not apply to loans fully secured by bonds or certificates of indebtedness of the United States ..."

I am sure that the above is self explanatory and answers the question which you presented.

BANKS AND BANKING-Leans The statutory loan limit:ltion on banks of 20 '7o of its capital and unimpaired surplus to any one person does not include the interest on the loan.

Hon. 0. G. Jackson Superintendent of Banks

September 18, 1947.

I have your letter of September 15th, in which you request my opinion on the following situation:

Georgia Code Section 13-2013 limits the amount which a bank may loan to any one person, firm or corporation to 20 o/o of the capital and unimpaired

38
surplus of the bank. Does a bank violate this Code sE:ction if a borrower obtains the legal limit of 20 o/o and the bank adds interest to the principal amount, so that the face value of the note, which evidences the loan, actually exceeds the 20 o/o limitation?
The pertinent parts of Code section 13-2013 read as follows: "No bank shall be allowed to lend to any one pE:rson, firm, or corporation more than 20 per cent. of its capital and unimpaired surplus; and no loan shall be made in excess of 10 per cent. of the capital and surplus, except upon good collateral or other ampl0 security and with the approval of a majority of the directors .." The restrictive words in the section are "no bank shall be allowed to lend" and "no loan shall be made". The section limits only the making of loans, it does not limit the debts or obligations of one person which a bank may hold. In Parsons v. Fox, 179 Ga. 605, 607, thE: Court said: "A loan may be defined as the delivery by one party to, and the receipt by another party of, a sum of money upon an agreement, express or implied, to repay the sum with or without interest."
The distinguishing factor of a loan is the actual delivery of money. In the instant situation there is no delivery of the amount of interest included in the note; instead the interest owed is a contractual obligation,.
In McLendon v. Johnson, 71 Ga. App. 424, 428, the Court said: "The usual import of tho term (interest), is the amount which one has contracted to pay for the use of borrowed money". In Kitchum v. City of Buffalo, 21 Barb. 294, 305, the Court said: "A loan is something quire different from a debt. A loan contracted creates a debt, but there may be a debt contracted with::mt contracting a loan". It will be seen from the above authorities that there is a positive distinction between making a loan and holding an, obligation. The distinguishing factor is that the term "loan" postulates an actual outlay and delivery of money. The holding of an obligation or indebtedness may arise from the rendering of services or, as in this case from the making of a contract in which a borrower agrees to pay interest.
The amount of money due as interest has not been loaned; it has arisen as a contractual obligation. The fact that both the amount of the loan and the amount of interest contracted for are included in one note does not vary the amount of the loan. In short, the amount of the loan is the amount of money delivered to the borrower, regardless of how the loan may be evidenced.
I interpret the Code sE:ction in question as limiting the amount of money a bank may loan-that is actually or constructively take from its vaults and deliver-but I do not think that this section necessarily limits the amount of debts or obligations of which a bank may bE:come holder or obligee, nor does it prohibit in any way the joining of loan obligations with other obligations in one note.
There is a Federal statute which is somewhat similar to the Code section in question which limits "the total obligations to any National Banking Association", which any person, etc., may owe to 10 o/o of the amount of the capital stock of such Association. It will readily be seen that while the Georgia statute limits the amount of money a bank may loan one person, the

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Federal statute limits the amount of obligations of one person which a bank may hold. Even so, in computing the amount of obligations of one person held by a bank, the Fede:ral courts have measured the amounts by the actual outlay of money.
In Atherton v. Anderson, 86 F. 2d., 518 at 533, the Circuit Court of Appeals for the Sixth Circuit stated:
"It may be true that loans which are not excessive when made do not become so by the mere running of time, and that inclusion of interest with principal is of i-cself ineffective to constitute the loan excessive, for under such circumstances 'no new money leaves the bank's vaults'."
Also, Zollmann on Banks and Banking, Sec. 4843, states: "When obligations of single debtor to national bank have reached statutory maximum, only obligations thereafter incurred representing actual outlays by bank are to be treated as excessive, and interest there:on is not to be included in such subsequent obligations .." It is, therefore, my opinion, based on the above authorities, that the inclusion of interest as well as principal in a note evidencing a loan, where the amount of the note is the:reby made to exceed the 20 per cent. limitation, does not violate the Code section in question. Of course, any further loan, upon which there is an actual outlay of funds would be excessive.
BANKS AND BANKING-Loans (1) The statutory real estate loan limitation on banks based upon a percentage of the fair market value of the real estate applies to loans in which the R.F.C. participates. (2) The statutory real estate loan limitation on banks based upon the aggregate amount of such loans does not include the amount of R.F.C. participation.
October 24, 1947 Hon. 0. G. Jackson Superintendent of Banks
I have: your letter of October 9th, in which you request my opinion on the following question:
Are loans participated in by R. F. C. exempt from the provisions of Code Section 13-2015?
The- Code Section in question states a restriction on banks making loans secured by real estate, as follows:
1. "No bank ... shall lend upon real estate ... more than 50 percent of the fair market value of such real estate, provided, that in case of loans which provide for a regular amortization the:reof, no such bank shall lend more than 75 percent of the fair mftrket value of such real e:state."
2. The second restriction stated is: ".. the aggregate amount of such loans shall at no time exceed the amount of- its savings and time deposits or the combined total of its capital and surplus whichever is greater ." A further provision of the section exempts any loan which the F. H. A.

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of V. A. insures or makes a commitment to insure. The question then is -whether the loans participated in by R. F. C. are similarly exempt.
It is a well settled rule of statutory construction "that the existence of an exception in a statute clarifies the intent that the statute should apply in all cases not excepted". Crawford on Statutory Construction, page 610.
If R. F. C. was intended to be excepted and such exception was omittE:d from the Act by mistake, the error may be rectified only by the Legislature. However, the "participation" method used by R. F. C. does effect a difference in the application of the Code Section to loans participated in by R. F. C.
As to (1) above, the participation of R. F. C. will not vary or increase the amount of money a bank may loan on a given piece of real estate. A bank may loan only 50 or 75 percent, as the case may be, of the market value of a piece of real estate. When R. F. C. participates in a loan, it takes under its form contract an interest in the security equal to its percentage of interest in the Joan. Although, it is true, that if there be loss, the bank's loss is decreased to thE: extent of R. F. C. participation, this does not disturb the ratio between the amount of loan retained by the bank, and the amount of its interest in the security.
Thus, if a bank loans $8,000.00 on a Jot valued at $10,000.00, (an excess of the permitted pro:r:ortion), and R,. F. C. purchases half the loan under the terms of its contract, R. F. C. takes half the security interest in the real estate. Thus, in effect, the bank is !E:ft with $4,000.00 Joan on security valued at $5,000.00, so that the percentage ratio permitted by the Code Section is violated.
Therefore, it appears that the provisions of restriction (1) above, do apply to loans participated in by R. F. C. and will continue to do so until the Legislature acts.
However, as to restriction (2) above, it is my opinion that loans participated in by R. F. C. are to be excluded to the extE:nt of R. F. C. commitment or participation in computing the amount of loans "outstanding", for purposes of comparing the amount of loans outstanding with the amount of savings and time deposits or the combined total of capital and surplus. When R. F. C. :Ras purchased part of a loan or made a commitment for such purposes, the loan is no longer entirely the banks, and to regard it as being such would be unrealistic and inconsistent with the practice required by othE:r sections of the Code on Banking Laws (Code Section 13-2013).
The purpose of the restriction stated in (2) above is to protect depositors from risks or losses which might be incurred should a bank loan large percentages of its funds with real estate a security. When R. F. C. is commited to participate in a loan, the possibility of loss by the bank is obviated to the extent of R. F. Q. commitment, and therefore, the possibility of loss by depositors is also obviated. Since the bank, may at any time call upon R. F. C. to assume its share of any l0ss which occurs, the bank's possibility of loss is decreased to the extent of R. F. C. participation, and it would be illogical to include the amount of that participation in a figure 1epresenting the amount of loans or risks outstanding.

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BANKS AND BANKING-Loans A bank may loan, upon the security of agricultural products, the value fixed in a contract at which the Commodity Credit Corporation is bound to purchase the products on demand, if the rights of the borrower under the contract with the Commodity Credit Corporation are legally trans-
ferred to the bank.
December 29, 1947
Hon. 0. G. Jackson Superintendent of Banks
I have your letter of December 18, with enclosures, in which you rE:quest my opinion on the following factual situation:
May banks loan 100 per cent of the set value of agricultural products, taking them as collateral, to a processor of such products where a federal agency, the Commodity Credit Corporation, is bound by contract with the processor to purchase the products at the set value on demand of the processor?
The pertinent statute is Georgia Code Section 13-2013, as amended (Ga. L. 1943, p. 254). This Section, after prohibiting banks from loaning more than 80 per cent of the value of agricultural products, states the following exception:
"... Provided, that the limit herein fixed shall not apply to loans to the extent that such loans are secured or covered by guaranties or commitments or agreements to take over or purchase made by any Federal Reserve Bank or by the United States or any department, bureau, board or establishmE:nt of the United States, including any corporation wholly owned directly or indirectly by the United States if such guaranties; agreement or commitments are subject to no condition beyond the control of such bank and must be performed by payment of cash or its E:quivalent within sixty days after demand ..."
The question then is, does the existence of a C.C.C. guarantee to the borrower-processor to purchase the products offered as collateral so qualify the loan as to bring it within the exception in the Code Section quoted above?
The intention of the Le~islature in passing the above statute limiting the amount of loans on agricultural products was to protect depositors and other persons interested from possible loss causE:d by rapid fluctuation in the value of agricultural products. It is clear that the Legislature intended that such prohibition should not apply where the possibility of such loss is obviated by the guaranties of federal agencies. With this Legislative intent in mind, it seems clear to me that whenever the element of risk in a loan may be legally removed or decreased by the guaranty of a federal agency, the 80 per cent limitation is not applicable.
A careful examination of the exception to the 80 per cent prohibition reveals that the guaranties of federal agencies must apply to the "loans". The Section states "... the limit herein fixed shall not apply to loans to the extent that such loans are secured or covered by guaranties . . ." In order for the loan to be covered by the guaranty, it must be within thf:' power of the bank to call or demand the guaranties. Therefore, in the instant situation, the guaranties of the C.C.C. to the borrower-processor must be so transferred

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as to permit the bank to have the authority to make the demand on the C.C.C., on its own motion and without approval of the oorrower-processor.
The only remaining question is whether or not the borrower-processor may legally transfer his rights unde:r the guaranty contract with C.C.C. so as to make them bindingly exercisable by the bank. Here, I wish to call your attention to Paragraph 13 of the form contract you have furnished me which states as follows:
"Assignment. Neither this contract nor any claims or payments arising hereunder shall be assigned in whole or in part by the Dealer without the prior written approval of Commodity, and any such assignment shall be in such form as may be approvEd or prescribed by Commodity."
It is my opinion that, subject to the provisions of Paragraph 13 of the contract quoted above, the borrower-processor may legally transfer his rights to the bank. I will not discuss the various possible methods of implementing such a transfer as that should be the province of counsel of C.C.C. and of the bank.
In conclusion, and to recapitulate, it is my opinion that where the rights of a borrower under a federal agency guaranty contract are made legally exercisable by a bank, a loan made on agricultural products covered by the guaranty is within the exception to the statute discussed and may be for 100 per cent of the set value of the products.
BANKS AND BANKING-Location (l) A bank may be: located in an unincorporated area. (2) Where a bank is to be located in an unincorporated area, the amount of capital stock required is governed by the population of the unincorporated area to be served.
February 28, 1946 Hon. J. G. Beasley State Superintendent of Banks
Your letter of February 20th received. You reque:st that I advise if it !s within the law to approve a charter for a bank in a village not incorporated, and if so, would the capital be governed by the population of the village or county in which it was located.
So far as I have been able to find, there is no statute which requires a bank to be located in an incorporated city or town. When the Banking Act was passed, evidently it was presumed that no one would be interested in setting up a bank located outside of a town or city. Over-populated conditions of towns and cities have caused populated ce:nters to grow up outside of the incorporated limits, and there may be at the present time conditions that would make a bank located outside of an incorporated town or city feasible.
Section 13-901 of the Code does not require that the bank be located in a town or city. It merely requires that the person seeking a charter for a bank shall furnish the Secretary of State the name by which the bank is to be known, and the particular city, town or village where it is to be located. The Section also regulates the amount of stock for banks in the different cities and towns.

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It is my oprmon that a bank can be chartered and located outside of incorporated towns or cities, and where so located, the capital stock should be regulated and controlled oy the population of the village or area of the community which such a bank would serve. If the population of a village or community to be served by such :l bank does not exceed 7,500, the capital stock would be not less than $25,000.00 If the population exceeds 7,500, the "capital stock would be not less than $50,000.00. The amount of capital stock necE:ssary for a bank located outside of a community would present an administrative question to be decided by the Superintendent of Banks upon his investigation to determine whether or not he would give his approval.

BANKS AND BANKING-Merger A merged bank may not revert to its former status without applying for a new charter to operate as an independent bank.

Hon. 0. G. Jackson Superintendent of Banks

May 21, 1947

This will acknowledge your inquiry of May 15, in which you rE:quest an opinion concerning the status of the Bank of Atlanta and the Northwest Atlanta Bank, which' had previously merged or consolidated. You state that these banks wish to revert to their former status as independent corporations, and request an opinion whether or not this can be done under the Georgia laws.

No specific Georgia statute or case is found directly on the point. In 9 C. J. S. 921, it is stated "a bank formed by the merger or consolidation of several banks is one corporation, and the constituent banks cease to exist." In In re Cantor, 184 N. E. 474, a New York case, the court held "the statute regulating bank mergers does not contemplate the formation of a new bank-

ing corporation through the consolidation of two existing corporations, but the merged bank ceases to be a corporate entity, while the bank into which it is mergE:d continues in existence and succeeds to all its liabilities."

So it would appear that the general rule is that where two banks merge
or consolidate that either the two banks cease to exist or that the merged bank ceases to exist. Therefore, u:-~der either rule, the Northwest Bank of Atlanta
could not revert to its former status as it definitely has ceased to exist as a
corporate entity, and would have to apply for a new charter to operate as an independent bank..

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BANKS AND BANKING-Officers (1) A director of a bank must be a citizen of this State and reside within 25 miles of the city or town in which the bank is located. (2) The president of a bank must be a director. (3) A vice-president and member of the loan committee of a bank should be a director.
February 28, 1946
Hon. J. C. Beasley State Superintendent of Banks
Your letter of February 20th receivE:d. You request that I advise if a shareholder in a bank is eligible as a vice president and a member of the loan committee, who is not qualified as a director for the reason that he resides outside of the State.
Bank corporations, like other corporations, are artificial persons. They have such powers and rights as are given them by the State at the time Qf their crE:ation by charter. Banking corporations, while operated for private gain, have vital public relations. They are subject to regulations imposed by the State under the State's police authority. They must operate within the regulations imposed upon them.
Banks are managed by boards of directors selected by the stockholders as provided for in Section 13-2001 of the Code of 1933. Every director must, during his whole tE:rm of service, be a citizen of this State or reside within twenty-five miles of the city or town in which the bank is located, and at least three-fourth's of the directors must be residents of the city or town in which the bank is located or within twenty-five miles thereof, and must continue so to reside during their continuance in office, as provided for in Section 13-2002.
At the first meeting of thE: directors after annual election, the directors of the bank are required to elect one of their number as president of the banl\i. They are also required to elect one or more vice presidents, a cashier, and such other officers and agents as may be provided by the by-laws, or as may be required for the prompt and orderly dischargE: of the business of the bank. (See Section 13-2009).
Under the provisions of law hereinbefore cited, a person could not be a president of a bank unless he is a director, and therefore a president must be a resident of this State or reside within twenty-fivE: miles of the city or town in which the bank is located. The statute does not in so many words require that a vice president shall be selected from the directors-however, it is my opinion that since a vice pre~ident performs the duties of the president when the president is absE:nt, the vice president should have the same qualifications as those required of a president. I am of the opinion that vice presidents of banks should be selected from the directors who have previously been elected by the stockholders of the bank. I am also of the opinion that members of the loan committee of banks should be selE:cted from the officers, that is, directors, selected by the stockholders to manage and control the bank as provided for in Section 3?-2001. I construe these requirements to be regulations imposed by the statute for the protection of the public as well as for the protection of the depositors and stockholders of the bank.